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

text:
    Chester Earl RHODES v. STATE of Arkansas
    CR 81-99
    634 S.W.2d 107
    Supreme Court of Arkansas
    Opinion delivered May 24, 1982
    [Rehearing denied June 28, 1982.]

      William L. Bost, Jr., Joan Hartman, and Terry L. Foreman, for appellant.

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

      Adkisson, C.J., would grant rehearing to affirm on merits. Hickman and Hays, JJ., would grant rehearing.

   Robert H. Dudley, Justice.

Appellant Chester Earl Rhodes and Juanita Carr were charged with capital murder in the April 21,1980 robbery and murder of Roland Kelley in Fayetteville in violation of Ark. Stat. Ann. § 41-1501 (Repl. 1977). Juanita Carr pleaded guilty to first degree murder, received a twenty-five year sentence and testified against the appellant. The first trial ended in a mistrial but the second trial resulted in a conviction with imposition of the death penalty.

The evidence established that Carr, then a 17-year-old prostitute, went to Roland Kelley’s house in late afternoon and engaged in sexual relations. Kelley did not pay and she returned with appellant later that evening to collect from Kelley. Several witnesses saw a black couple walking toward the Kelley house and later saw a black couple leave by way of the back porch. Juanita Carr and appellant are both black. One witness, Beverly Kelley, positively identified appellant as the man she saw with Juanita Carr as the two of them walked toward, and later away from, the victim’s house. Shortly after the couple left the Kelley house, he was found beaten to death. The victim’s wallet and approximately $65 were missing. The wallet was later found in a lot where Juanita Carr stated she had thrown it. Juanita Carr testified that appellant had beaten the victim to death with a board which was found where she stated appellant had thrown it.

We reverse the conviction and remand the case for a new trial because of prejudicial error. That point and those which, though not error, are likely to confront the trial court upon retrial are discussed in this opinion.

Juanita Carr, the accomplice in the capital felony murder, was the direct evidentiary link between the appellant, the murder and the robbery. Her credibility was a key to the state’s case and it was crucial to the appellant’s case that he be allowed to conduct as full an impeachment of the witness’ credibility as the rules of evidence allow. The trial court granted the state’s threshold motion and ruled that the appellant could not cross-examine Juanita Carr about previous incidents of shoplifting. The court ruled the appellant could only inquire about felony convictions within the past ten years. The appellant’s attorney asserted his good faith basis for asking the question and made his proffer by stating “she has pursued ... we know she has pursued a course of conduct over six years involving . . . thefts and devious activities, and the jury in evaluating her credibility should be made aware that she is a devious type of person.” Appellant contends that the trial court erred in improperly limiting his cross-examination under Unif. Rules of Evid. 608 (b), Ark. Stat. Ann. § 28-1001 (Repl. 1979). Because of our prior case law we agree and reverse.

Rule 608 (b) provides that “[sjpecific instances of the conduct of a witness ... if probative of truthfulness or untruthfulness” may be inquired into on cross-examination in the discretion of the trial court. Here the instance of conduct sought to be inquired into was shoplifting. In Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979), we held that a cross-examiner, pursuant to 608 (b), may ask a witness about prior bad acts if that prior bad conduct has a bearing on the witness’ character for dishonesty. We stated that 608 (b) allowed cross-examination about prior bad acts involving theft:

For example, murder, manslaughter or assault do not per se relate to dishonesty. Burglary and breaking and entering would not be such misconduct unless the crime involved the element of theft. We believe that theft, as it is defined in the Arkansas Criminal Code, involves dishonesty.

Shoplifting is a form of theft and according to our language in Gustafson, supra, the cross-examination should have been allowed. Careful examination of the transcript reveals that appellant’s trial attorney relied upon our Gustafson ruling in the preparation of his case. Juanita Carr’s credibility was a key issue and under our prior ruling the jury should have heard cross-examination on this issue. Because we cannot state that the appellant did not suffer prejudice as a result of the ruling we must reverse.

We have devoted much of our time in conference to the interpretation of Rules 608 (b) and 609. These rules deal with attacking or supporting the credibility of a witness by questioning about specific instances of conduct. The rules bar evidence of specific instances of conduct of a witness for the purpose of attacking or supporting credibility with two exceptions:

(1) Specific instances are provable when they have resulted in criminal convictions and meet all of the requirements set out in Rule 609.
(2) Specific instances in which there has been no criminal conviction may be inquired into on cross-examination of the principal witness, or of a witness giving an opinion of a principal’s character for truthfulness, but the cross-examiner may not introduce extrinsic proof of the witness’ misbehavior if the witness denies the event. Rule 608 (b).

We are satisfied that our Gustafson, supra, interpretation of Rule 608 (b) is too broad and we prospectively modify our interpretation of the rule to limit the inquiry on cross-examination to specific instances of misconduct clearly probative of truthfulness or untruthfulness as distinguished from conduct probative of dishonesty. McCormick views misconduct, “such as false swearing, fraud and swindling” as relevant to truthfulness. McCormick, Evidence § 42 at 87 (1954). Weinstein states “Rule 608 (b)) authorizes inquiry into specific instances of misconduct on cross-examination but requires that they must be ‘clearly probative of truthfulness or untruthfulness,’” and gives the following illuminating footnote:

United States v. Fortes, 619 F.2d 108 (1st Cir. 1980) (no abuse of discretion in trial court finding that sale of cocaine was not probative of truthfulness or untruthfulness; court reserved decision on whether a drug transaction might ever be considered probative of a witness’ veracity; though questions which court disallowed about witness’ truthfulness in responding to investigators probing the incident surrounding his discharge as a police officer could well be probative of truthfulness and broad cross-examination of principal witness should be allowed when credibility of witness is central issue, no error where jury had been presented with much other evidence indicating witness’ unreliable character and questionable trustworthiness); United States v. Whitehead, 618 F.2d 523 (4th Cir. 1980) (defendant who is lawyer testifying in his own behalf may be cross-examined about suspension from bar pursuant to Rule 608); United States v. Cole, 617 F.2d 151 (5th Cir. 1980) (cross-examination proper concerning submission to former employer of a false excuse for being absent from work); United States v. Rabinowitz, 578 F.2d 910 (2nd Cir. 1978) (evidence of witness’ prior acts of sodomy on young children and consequent psychiatric treatment had too tenuous a bearing on credibility for court to find that trial judge had abused discretion in failing to admit; acts had no relevance to bias on the theory that witness needed to curry favor with DEA since more than five years had elapsed and no charges were pending); United States v. Hastings, 577 F.2d 38 (8th Cir. 1978) (drug transactions do not relate to truthfulness, citing Treatise); United States v. Crippen, 570 F.2d 535 (5th Cir. 1978), cert. denied, 100 S. Ct. 837 (1980) (inquiry as to whether character witness knew that defendant’s firm, an auto-, mobile agency, had routinely turned back odometers; citing Treatise); United States v. Young, 567 F.2d 799, 803 (8th Cir. 1977), cert. denied, 434 U.S. 1079, 98 S. Ct. 1273, 55 L. Ed. 2d 786 (1978) (trial court properly refused to allow defendant to impeach prosecution witness by cross-examining her concerning her alleged offer to pay $10,000 to have her former husband killed; proposed question was not relevant to veracity and honesty and would have been highly prejudicial, citing Treatise); United States v. McClintic, 570 F.2d 685, 690-691 (8th Cir. 1978) (cross-examination about attempted swindle proper); Lewis v. Baker, 526 F.2d 470 (2d Cir. 1975) (in suit to recover for injuries allegedly incurred while in railroad’s employ, court properly admitted employment application on which plaintiff falsely stated he had not received psychiatric treatment within past five years; evidence directly relevant to party’s capacity for truth-telling, citing Rule 608); United States v. Byrne, 422 F.Supp. 147, 166 (E.D. Pa. 1976), modified, 560 F.2d 601 (3d Cir. 1977), cert. denied, 434 U.S. 1045, 98 S. Ct. 890, 54 L. Ed. 2d 796 (1978) (court refused to allow cross-examination as to whether prosecution witness had issued some checks which bounced; court found the matter was not probative of truthfulness since checks often bounce where no criminal intent is involved).

Weinstein, Evidence § 608 [05] p. 608-32.

Weinstein also states at p. 608-34:

Since Rule 608 (b) is intended to be restrictive — and was amended to ensure that it would be restrictively interpreted by trial courts — the inquiry on cross-examination should be limited to these specific modes of conduct which are generally agreed to indicate a lack of truthfulness. The rule should not be broadened to allow questions about behavior which indicates “a disregard for the rights of others which might reasonably be expected to express itself in giving false testimony whenever it would be to the advantage of the witness.” Such an approach paves the way to an exception which will swallow the rule. It is but a small step from there to the hypothesis that all bad people are liars, an unverifiable conclusion which runs counter to the doctrine that everyone is innocent of the particular crime charged until proven guilty.

Thus, in the future with the same set of facts before us, we would hold as stated in United States v. Ortega, 561 F.2d 803 (9th Cir. 1977) that while an absence of respect for the property rights of others is an undesirable trait, it does not directly indicate an impairment of the trait of truthfulness, and cross-examination would not be allowed on specific acts of shoplifting for which there was no conviction.

The policy reasons for our prospective modification are threefold: (1) a defendant stands the possibility of conviction by reputation for unsavory but unrelated acts which have no real bearing on veracity, (2) a basic aim of Rules 608 and 609 is to offer inducements to a defendant to take the stand. Our Gustafson interpretation thwarts this objective, and (3) we desire to maintain an interpretation of the Uniform Rules that is reasonably consistent with other states as well as with the Federal Rules of Evidence. No other jurisdiction has interpreted the Uniform Rules or Federal Rules to allow cross-examination on specific acts of shoplifting.

The prospective application of this rule is to commence with trials had on or after the date this opinion becomes final. However, the prospective ruling will not apply to this case because it is now the law of the case that the evidence is admissible.

Appellant contends that the state’s corroborating evidence, independent from that of accomplice Juanita Carr, is insufficient as a matter of law and therefore the case should be reversed and dismissed. Where the state relies on testimony from an accomplice to support a conviction, that testimony must be corroborated by other evidence which tends to connect the accused with the commission of the offense. Ark. Stat. Ann. § 43-2116 (Repl. 1977). It is unnecessary that the evidence be sufficient to sustain the conviction but the evidence must, independent from that of the accomplice, tend to a substantial degree to connect the defendant with the commission of the crime. King v. State, 254 Ark. 509, 494 S.W.2d 476 (1973). This court reviews the sufficiency of the evidence by the test of whether the verdict of guilt is supported by substantial evidence, which means whether the jury could have reached its verdict without resort to speculation and conjecture. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). Where circumstantial evidence is utilized, all facets of the evidence can be considered to constitute a chain sufficient to present a question for the resolution by the jury as to the adequacy of the corroboration. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202, cert. den. 429 U.S. 846 (1976). The court does not look to see whether every other reasonable hypothesis but that of guilt has been excluded. Cassell v. State, supra.

On appellate review of the sufficiency of the evidence, it is necessary to ascertain only that evidence favorable to the appellee and likewise permissible to consider the testimony that tends to support the verdict of guilt. Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1970).

The evidence, when viewed in the light most favorable to appellee, constituted a chain sufficient to corroborate the accomplice’s testimony. Carol Fortner and Carl Matthew Jenkins testified that they met Juanita Carr and appellant at the time and place stated by Carr. Julia Kelley testified that she saw a black couple go in the back door of the victim’s house and come out running twenty minutes later. Beverly Kelley identified the appellant as the man who was with Juanita Carr going toward and away from the victim’s house. This amounts to substantial evidence to corroborate the testimony of accomplice Juanita Carr and we decline, as a matter of law, to reverse and dismiss on this point.

The same photographs are likely to be introduced at a new trial. We find no error in their admission for they depict the nature, extent and location of the wounds and are relevant to the issue of intent, state of mind and corroboration of the manner of beating. Linder v. State, 273 Ark. 470, 620 S.W.2d 944 (1981).

The Attorney General has filed a motion for an award of costs pursuant to Rule 9 (e) (1). Ark. Stat. Ann. Vol. 3A (Repl. 1979). Our rule authorizes reimbursement to an appellee but we order such allowances only where there has been a clear-cut and demonstrable failure by the appellant to properly abstract matters to a fair and full consideration of the issues raised on direct appeal. Arkota Industries, Inc. v. Naekel, 274 Ark. 173, 623 S.W.2d 194 (1981).

There was such a clear failure in this case and the state is awarded attorney’s fees in the amount of $550 plus printing costs for the preparation of the supplemental abstract.

We do not address the other issues for a number of reasons. Some motions were not timely made, on other points an objection was not made, on other points there is no record because the argument is made here for the first time and some of the issues are moot because the case is remanded.

Reversed and remanded.

Hickman and Hays, JJ., dissent.

Darrell Hickman, Justice,

dissenting in part. The majority in its opinion concedes that the defendant was entitled to cross-examine the State’s main witness about her past misconduct which involved thefts over a period of six years. We do not know the exact nature of the activity because the trial judge concluded that unless there was actually a conviction a witness could not be questioned about misconduct. Of course, Ark. Stat. Ann. § 28-1001, Rule 608 (b) (Repl. 1979) clearly authorizes such questions under some circumstances.

When we first considered Rule 608 (b) en banc in Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979), we recognized that the rule permitting impeachment of a witness for prior misconduct had been restricted. That misconduct must relate to truthfulness or untruthfulness. We concluded that theft, as defined by the Arkansas Criminal Code, involved dishonesty and that in our judgment related to veracity. We relied on WEINSTEIN’S EVIDENCE, 608 [5] (1981), which related in detail the various authorities that had also concluded various types of similar dishonest acts had a bearing on veracity. That was our prerogative. We confirmed Gustafson in Divanovich v. State, 271 Ark. 104, 607 S.W.2d 383 (1980).

The majority opinion expresses dissatisfaction with our conclusion in Gustafson and are overruling it sua sponte prospectively. If I understand it they are holding that theft has no bearing on the character trait of honesty and such misconduct may not be used to impeach a witness or defendant. The opinion states:

Thus, in the future with the same set of facts before us, we would hold that while an absence of respect for the property rights of others is an undesirable trait, it does not directly indicate an impairment of the trait of truthfulness, and cross-examination would not be allowed on specific acts of shoplifting for which there was no conviction.

There is, of course, no such crime as "shoplifting” in Arkansas. That is simply a nice word for a person who steals from a retail store, just as embezzlement is a fancy word for theft by a white collar worker. Our criminal code simply lumps all thefts together, categorizing thefts by the amount stolen, the way it was obtained, and perhaps the kind of property taken. See Ark. Stat. Ann. § 41-2203 (Repl. 1977). The distinction between the categories lies in the punishment.

The majority justifies its decision on the basis that no other jurisdiction has made such an interpretation of Rule 608 (b) like ours in Gustafson. To buttress the statement the majority opinion quotes parts of two pages from WEINSTEIN’S EVIDENCE par. 608 [5] (1981). The most lengthy quote is from a footnote which is not at all illuminating, as claimed, because Gustafson is not inconsistent with any of the decisions cited in the footnote.

The conclusory quote from WEINSTEIN’S EVIDENCE reads:

Since Rule 608 (b) is intended to be restrictive — and was amended to ensure that it would be restrictively interpreted by trial courts — the inquiry on cross-examination should be limited to these specific modes of conduct which are generally agreed to indicate a lack of truthfulness. The rule should not be broadened to allow questions about behavior which indicates ‘a disregard for the rights of others which might reasonably be expected to express itself in giving false testimony whenever it would be to the advantage of the witness.’ Such an approach paves the way to an exception which will swallow the rule. It is but a small step from there to the hypothesis that all bad people are liars, an unverifiable conclusion which runs counter to the doctrine that everyone is innocent of the particular crime charged until proven guilty.

The majority opinion leaves out of its extensive quotation several statements from WEINSTEIN which were the basis of our decision in Gustafson. The majority quotes Professor McCormick’s 1954 work on evidence where he stated that misconduct relevant to truthfulness would include such acts as “false swearing, fraud and swindling.” The majority does not quote from WIGMORE which reads “robbery, assault and adultery do not ‘directly indicate an impairment of the trait of veracity’ while fraud, forgery and perjury do.” 3 WIGMORE ON EVIDENCE § 982 (1940). In the original text Wigmore wrote:

Now there is no doubt that conduct is relevant to character. An assault is relevant to indicate a violent character; a fraud is relevant to indicate a dishonest character.

Wigmore goes on to discuss two approaches courts have made to the problem:

(1) one is that any kind of misconduct, as indicating a bad character is admissible; thus, a robbery or an assault or an adultery may be used although no others directly indicates an impairment of the trait of veracity.
(2) the other attitude is entirely logical, and admits only such misconduct as indicates a lack of veracity, fraud, forgery, perjury and the like.

The majority opinion does not refer to WEINSTEIN’S quote of Dean Ladd’s list on offenses which related to veracity which reads as follows:

The group of offenses including forgery, uttering forged instruments, bribery, suppression of evidence, false pretenses, cheating, embezzlement, roughly disclose a type of dishonesty and unreliability characteristic of those lacking veracity.

Nor is the following paragraph referred to:

In the federal courts, the most common kinds of convictions would include forgery, income tax frauds including bribery, bankruptcy fraud, making false statements of a variety of kinds such as those in obtaining guns or permits and perjury and false swearing. The usual variety of state crimes include forgery, bribery, false pretenses, cheating, embezzlement, swindling, false advertising, frauds on creditors, issuing bad checks or using another’s credit card without authority, criminal impersonation and unlawfully concealing a will. . . . WEINSTEIN’S EVIDENCE par. 608 [5].

Is the majority limiting its holding to the short statement from McCORMICK that such misconduct only includes “false swearing, fraud and swindling”? Does a swindler tend to lie and a thief not tend to lie? Or is the majority holding that all thievery is not relevant as evidence when it makes the broad statement, “...we would hold that while an absence of respect for the property rights of others is an undesirable trait, it does not directly indicate an impairment of the trait of truthfulness, ...” Evidently so. Dean Ladd in 89 U. Pa. L. Rev. 194 (1940), stated much better than I can why a jury should know a witness is a thief:

Any classification of crimes on the basis of their relationship to credibility is difficult. Personal crimes of murder, assault, and mayhem, show a vicious disposition but not necessarily a dishonest one. On the other hand robbery, larceny and burglary, while not showing a propensity to falsify, do dislose a disregard for the rights of others which might reasonably be expected to express itself in giving false testimony whenever it would be to the advantage of the witness. If the witness had no compunctions against stealing another’s property or taking it away from him by physical threat or force, it is hard to see why he would hesitate to obtain an advantage for himself or friend in a trial by giving false testimony. Furthermore, such criminal acts, although evidenced by a single conviction, may represent such a marked breach from sanctioned conduct that it affords a reasonable basis of future prediction upon credibility. It is quite possible that with each other the robber class hold to some code of honor, but it is unlikely that it would express itself in court proceedings if there were a motive to falsify. The group of offenses including forgery, uttering forged instruments, bribery, suppression of evidence, false pretenses, cheating, embezzlement, roughly disclose a type of dishonest and unreliability characteristic of those lacking veracity. Not only would witnesses with such records tend to be conscience free in giving false testimony, but these crimes, being of the enlarged crimen falsi class might indicate the propensity to gain by false means and thus to falsify. Perjury has been regarded a sufficient indication of the probability of future perjury that some legislatures in removing incompetency of the common law retained it as to perjury. Whether perjury in one case would be a stronger indication that the witness would perjure in another than the commission of other crimes in the crimen falsi group is questionable. [Emphasis added.]

After careful deliberation we decided in Gustafson that there was a relationship between stealing and a lack of veracity. We stated that burglary and robbery would not bear on veracity unless a theft was involved. See People v. Burdine, 99 Cal. 3rd 442, 160 Cal. Rep. 375 (1979). A jury should know if a witness or a defendant has stolen before. Evidently the majority does not believe thieves tend to lie.

Trial lawyers and judges know that often a case rests upon the statement of only one witness. Sometimes that is a witness for the State, sometimes the defendant. Our rules exist to provide the jury or judge with all the relevant information available to decide if a witness or defendant is telling the truth. The majority is denying that tool to defense attorneys, and ultimately denying us all a valuable tool in the search for the truth.

I find no good cause to overrule Gustafson which is a definative decision and replace it with a decision that leaves too many questions unanswered. Neither party asked us to overrule Gustafson; we have not had the benefit of argument on this issue and I am convinced the action is not only precipitous but it is wrong.

Hays, J., joins in this dissent.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Tish JENNINGS v. STATE of Arkansas
    CR 82-23
    633 S.W.2d 373
    Supreme Court of Arkansas
    Opinion delivered May 24, 1982

      Robert S. Blatt, for petitioner.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for respondent.
   Robert H. Dudley, Justice.

Petitioner seeks to prohibit David Partain, Judge, from holding a trial on charges pending against her. She contends that she has not been afforded a speedy trial. On August 28, 1980, petitioner was arrested and charged with having committed a felony on June 3, 1980. She has remained lawfully at liberty on bond since her arrest. The trial judge set her trial for December 17, 1981, which was within 18 months of the date of her arrest. Prior to the trial she moved for dismissal for lack of speedy trial. Her motion was denied by the trial court. She now seeks a writ of prohibition in this court. We decline to issue the writ.

Petitioner contends that under Ark. Stat. Ann. § 43-1709 (Repl. 1977), she was entitled to be tried within three terms of court and that three terms have passed without trial. The statute cited by petitioner has been superseded by A. R. Cr. P. Article VIII, Speedy Trial, Vol. 4A (Repl. 1977 and Supp. 1981). Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980).

Petitioner takes cognizance of the Matthews decision, supra, but contends that the superseded three-term statute and the 18-month speedy trial rule, A. R. Cr. P. 28.1 (c) (Supp. 1981) are inconsistent. She argues that, as a result of the inconsistency, Ark. Stat. Ann. § 22-242 (Supp. 1981), which authorized this court to prescribe rules of criminal procedure, is an unlawful delegation of legislative authority. In Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977), we addressed this issue and held this not to be an unlawful delegation of legislative authority. We noted the enabling act “merely recognizes and is harmonious with the court’s inherent powers rather than conferring an express power.” Certainly, if we have the inherent power to make the Rules of Criminal Procedure, it follows that we have the inherent power to amend those rules.

Petitioner next contends that the crime occurred on June 3, 1980, and that our speedy trial rule in effect at that time must govern. The rule in effect on June 3, 1980, provided for a trial within three terms, A. R. Cr. P. 28.1 (c) (Repl. 1977), while the rule in effect at the time of trial, A. R. Cr. P. 28.1 (c) (Supp. 1981) provides for a trial within 18 months. If speedy trial rules were substantive law the petitioner would be correct for a trial is controlled by the substantive law in effect on the date of the commission of the crime. Art. 2, § 17, Constitution of Arkansas; Taylor v. Governor, 1 Ark. 21 (1837). However, speedy trial rules are not substantive law, they are procedural law. As stated in Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981):

Alternatively, Cassell argues in this court that our former statute requiring an incarcerated defendant to be tried within two terms of court laid down a rule of substantive law which this court could not supersede by a rule of procedure permitting a longer delay. Ark. Stat. Ann. § 43-1708 (Repl. 1977). That statute, however, was not substantive law merely because its violation might have a substantive effect. That is true of many procedural statutes, such as a statute of limitations or a statute requiring a defendant to file an answer within 20 days after the service of summons. In criminal matters substantive law declares what acts are crimes and prescribes the punishment; procedural law provides or regulates the steps by which one who violates a criminal statute is punished. Roberts v. Love, 231 Ark. 886, 333 S.W.2d 897 (1960). Under that distinction a speedy trial statute is procedural.

Because the rule is procedural it can be validly applied to all criminal trials commencing on or after July 1, 1980.

Petitioner next contends A. R. Cr. P. 28.1 (c) (Supp. 1981) is unconstitutional because it violates the right to a speedy trial as provided in both the Sixth Amendment of the United States Constitution and Article II, § 10 of the Arkansas Constitution. Petitioner cites no federal or state case for the proposition that an 18-month speedy trial rule for one at liberty on bond is prejudicial. The 18-month period is reasonable and is consistent with the constitutional standards set out in Barker v. Wingo, 407 U.S. 514 (1972).

Petition denied.


text:
    James VANDERPOOL v. STATE of Arkansas
    CR 82-31
    633 S.W.2d 374
    Supreme Court of Arkansas
    Opinion delivered May 24, 1982

      Thomas A. Martin, Jr,, for petitioner.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for respondent.
   Robert H. Dudley, Justice.

The issue in this case is whether an affidavit for a search warrant must contain a statement that the facts alleged are based either on personal observation or on inferences deduced by the affiant or on hearsay. The affidavit is the sole basis upon which the search warrant was issued and our ruling is limited to that fact situation. The trial court held that the affiant need not assert the manner of obtaining the stated information and allowed into evidence the contraband seized under authority of the search warrant. Petitioner was then convicted of manufacturing a controlled substance in violation of Ark. Stat. Ann. § 82-2617 (Supp. 1981). The Court of Appeals affirmed in Vanderpool v. State, 4 Ark. App. 76, 628 S.W.2d 576 (1982). We granted certiorari to review an apparent conflict in our cases. Rule 29 (1) (c).

It is the constitutionally required function of the judicial officer before whom search warrant proceedings are held to make an independent and neutral determination, based on the facts proven, of the existence of probable cause for the search. Aguilar v. Texas, 378 U.S. 108 (1964); Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980). The only proof given to the issuing magistrate in this case was the affidavit and it does not state whether the affiant observed the contraband or whether he obtained the information from a third person.

In Bailey v. State, 246 Ark. 362 at 365, 438 S.W.2d 321 (1969), we stated:

If an officer swears there is contraband at a particular address there are three possibilities for the basis of his conclusion:
(1) The officer has seen the illegal object or objects. In that event his affidavit should assert personal observation; or,
(2) The officer "observed or perceived facts from which the presence of the equipment may reasonably be inferred. In that event the affidavit must recite the perceived facts so that the magistrate may judge the existence of probable cause”; or,
(3) The officer has obtained the information from someone else, for example, an informer. In that event the warrant should not issue unless good cause is shown in the affidavit (or supporting testimony) for crediting that hearsay.

That reasoning is still perfectly valid. A magistrate must determine the reliability of the assertion in the affidavit before deciding the existence of probable cause. In order to weigh reliability the magistrate must know whether the assertion is from personal observation, perceived facts or hearsay. Thus, the basis of the assertion must be stated in the affidavit in those cases where the sole evidence is the affidavit. We reverse the Court of Appeals on this issue and remand the case for a new trial.

If a magistrate determines that an affidavit is insufficient the defect can easily be cured, if the affiant has the required good cause, by putting the affiant under oath and allowing him to testify or else allowing him to execute a supplemental affidavit under oath.

The Court of Appeals, in reaching the opposite result, relied on a sentence in our case of Schneider v. State, 269 Ark. 245, at 252, 599 S.W.2d 730 (1980) which states that any statement of fact, made as such, must be taken to be within the personal knowledge of the affiant. In Schneider, supra, the affiant, a detective, stated that he had personal knowledge of the illegal drug traffic in the area and that he maintained a file upon informants and their credibility. The affiant then recited:

On February 3, 1979 (today) I spoke with William Rhodes and Phillip Bruce. Attached is a statement signed by Rhodes and which he stated to Prosecuting Attorney Ron Fields under oath that all the facts contained therein were true. (See attached statement Appendix A). Also on this date Phillip Bruce called Schneider at 782-2459 and she stated that she had a quantity of marijuana that she would sell to him at 6:30 P.M. this date. This call was recorded and the tape is attached as appendix B.
Bruce stated that the buy was to take place at her house (1800 S. 16th, Ft. Smith).

The magistrate listened to the recorded telephone conversation before issuing the search warrant. In affirming the case based on that factual situation we held that any statement of fact, made as such in the affidavit as distinguished from the exhibits attached to the affidavit, must be taken to be within the knowledge of the affiant. The sentence in Schneider, supra, should be read in its proper context. However, to prevent misunderstanding, the sentence is disapproved to the extent it might conflict with today’s opinion.

The evidence introduced in this case was seized as the result of searches of a cabin and of an open field. The search of the open field was permissible without a warrant, Ford v. State, 264 Ark. 141, 569 S.W.2d 105 (1978), but the search of the cabin required a warrant and the warrant, in turn, required a valid affidavit.

Because we reverse and remand for a new trial on the issue of failure to state personal observation, we do not reach the other points decided by the Court of Appeals.

Reversed and remanded.


author: Stephen P. Sawyer, Special Justice.

text:
    Stanley DICKSON et al v. E. G. RENFRO et al
    81-200
    634 S.W.2d 104
    Supreme Court of Arkansas
    Opinion delivered May 24, 1982
    [Rehearing denied June 28, 1982.]

      Keith, Clegg ér Eckert, for appellants.

      Woodward, Kinard ir Epley, Ltd., and Robert R. Wright, for appellees.
   Stephen P. Sawyer, Special Justice.

This is the second appeal involving the within case, the first being Dickson v. Renfro, 263 Ark. 718, 569 S.W.2d 66 (1978). The facts are set out in some detail in that opinion, but may be summarized as follows:

The action involves the claim of the six appellants to an undivided two-thirds interest in a seventy-six acre tract of land in Columbia County on which a producing oil and gas well was completed in the year 1976. The action was brought in the same year by the appellants to protect their interest in royalties derived from the well. The royalties are being held by the clerk of the lower court pending the outcome of this litigation.

The appellants are the children of Carrie Dickson and Omie Lecroy, both deceased. They derive their interest for the subject property from a 1920 Warranty Deed in which Carrie Dickson and Omie Lecroy conveyed their interest to Guy Lecroy, their brother, and his wife Mattie. The deed contained the following language in the granting clause:

“... do hereby grant, bargain, sell and convey unto the said Gus Lecroy and Mattie Lecroy, and unto their heirs and assigns, forever, if Gus and Mattie have no heirs then to the heirs of Carrie Dickson and Omie Lecroy, the following lands ...”

The appellees, in the main, derive their interest from Gus and Mattie Lecroy. Gus died in 1971, and Mattie died in 1979, after the first appeal.

The Chancellor did not construe the 1920 deed in this original decision because he found the appellants’ claim to be barred by a 1920 foreclosure suit and by limitations and laches. On the first appeal, this court in a four to three decision, held that the purchase of this property by Gus Lecroy within ten months after one W. S. McKissack, the mortgagee in the 1928 action, obtained a commissioner’s deed to it amounted to a redemption in favor of his sisters and their “heirs” and, in effect, erased the foreclosure, leaving the parties in their original position. This court then went on to construe the 1920 deed stating that the word “heirs” plainly meant children. Gus and Mattie had no children, although Mattie curiously adopted one of the appellees after the filing of the appellants’ complaint. This court held that the adopted daughter who was an adult did not qualify as an “heir” within the intent of the 1920 deed. The court did not determine whether or not the appellants’ estate was a contingent remainder or an executory interest but specifically stated that it did not become a possessory estate until at Gus’s death in 1972, if not until Mattie’s.

Since the original action was presented on motions for summary judgment filed by both sides, the court remanded the matter for further proceedings in the following language:

“The defendant’s motion for summary judgment asserts no facts suggesting that any basis for a finding of limitations or laches arose after Gus’s death in 1972. That question therefore remains open, for the appellants are mistaken in arguing that when both sides file motions for summary judgment they impliedly agree that there is no issue of fact in the case. Wood v. Lathrop, 249 Ark. 376, 459 S.W.2d 808 (1970). This opinion merely disposes of issues of law raised by the trial court’s action in granting defendant’s motion for summary judgment. The court expresses no opinion upon issues of fact that may be raised by either party at a trial on the merits.”

After remand and trial, the chancellor reconstrued the 1920 deed holding that it conveyed a determinable fee to Gus and Mattie Lecroy as tenants by the entirety with a possibility of reverter as opposed to a remainder or executory interest and further held, in a letter opinion, that the holders of a possibility of reverter have a cause of action when it becomes reasonably probable that their interest will become possessory. The court then held that the statute of limitation began to run in 1963 or 1964 when Gus and Mattie conveyed the property to third parties, when Gus and Mattie were seventy (70) years of age or older and had no children, and thus appellants’ claim was barred by adverse possession and laches. Accordingly, all oil royalties were awarded to appellees.

On this appeal, the appellants contend that the issues decided by the chancellor were treated in this court’s original opinion and the doctrine of “law of the case” applies. In this regard, the chancellor, after remand, made a finding that only two matters previously decided by this court constituted “law of the case”, to-wit:

(1) When Gus Lecroy purchased from McKissack his purchase amounted to a redemption.

(2) In the 1920 deed, the words “heirs” in the phrase; “if Gus and Mattie have no heirs” means children.

It is the position of this court that the issue of the construction of deed was decided in the previous appeal and that the doctrine of law of the case applies. See St. Louis Southwestern Railway Co. v. Jackson, 246 Ark. 268, 438 S.W.2d 41 (1969). As indicated above, we previously held that any interest of Carrie and Omie did not become a possessory estate until Gus’s death, if not until Mattie’s. Even if the interest of appellants was only a possibility of reverter, appellees cite no case, nor did the chancellor, which would indicate that they would have a cause of action for possession when it became “reasonably probable that their interest would become possessory”. To the contrary, it has been held that the holder of possibility of reverter after a determinable fee has no estate in the property. See 28 Am. Jur. 2d, Estates, Sec. 27. It has been held that the holders of the possibility of reverter have no such present estate or ownership as would entitle them to.protect their rights by proceeding under a statute dealing with situations where title and ownership of land are so uncertain as to render them defective and preclude sale or lease. See 28 Am. Jur. 2d, Estates, Sec. 185.

In any event, this court holds that the appellants here would have no possessory right and could not have asserted any cause of action for possession until at least the year 1972, when Gus died.

The appellees, on remand, called numerous witnesses and introduced various conveyances by Gus and Mattie and their successors in title since 1929. The chancellor held that Gus executed many acts of absolute ownership of the property, which were adverse to his sisters’ interest, for more than thirty years and that Carrie and Omie had at least constructive notice of these acts. The chancellor noted that Gus conveyed, by warranty deed, forty acres to the Eldridges in 1963 and thirty six acres to the Renfros in 1964, and, as previously stated, held that the statute of limitations began to run as of the date of these deeds. However, because of the foregoing decision, these facts become irrelevant because the statute of limitations could not begin to run until Gus’s death in 1972. This action was originally filed in 1976, long before the running of the statute of limitations which would bring into play the doctrine of adverse possession. In addition, there is nothing in the record that would indicate any of the appellants were guilty of any actions which could be construed as laches since Gus’s death, there being no change in the parties’ status after that time. Accordingly, the decision of the chancellor is herein overruled with the instruction to reinstate the interest of the appellants in the land herein involved as heirs of Carrie Dickson and Omie Lecroy.

There remains the question of disposition of the oil royalties being held in this matter.

The appellants argue that if their estate became possessory in 1972 when Gus Lecroy died then there is no question that they are entitled to all of the royalties from the oil production, which began in June, 1976. They contend that it is only if they were not entitled to possession until Mattie’s death in 1979 that the issue comes into question. They point out that the courts have held that an owner of a life estate is entitled to only the income from the royalties themselves, the royalties being a substituted corpus which must be preserved for the owner of the future interest until it comes possessory.

Appellees, on the other hand, argue that the estate, if any, of the appellants’ is that of an executory limitation after a determinable fee, citing Williams and Meyers Oil and Gas Law, Vol. 2, Sec. 515 in which it is stated that the owner of a defeasible fee interest may develop or lease land without joinder of the owner of any subsequent interest and without the necessity of an accounting.

Appellees counter with the argument that the court, in its previous appeal, held that it did not need to determine whether appellees’ estate is a contingent remainder or executory interest, for in either case it did not become a possessory estate at least until Gus’s death, if not Mattie’s. The appellees also argue that it is irrelevant whether appellees’ estate is characterized as a contingent remainder, executory interest or an executory limitation for, in any event, there is an inherent duty not to commit waste.

In the previous appeal, this court held that the “heirs” in the limitation in the involved deed meant the children of Gus and Mattie. Accordingly, it is this court’s view that upon the death of Gus in 1972, the estate terminated, and appellants’ interest became possessory. Under this view, it is obvious that appellants are entitled to the entire royalty interest.

Even if we held that the estate did not become possessory until Mattie’s death in 1979, it is our opinion that she had a duty not to commit waste, particularly under the circumstances presented in this case, where the appellees were aware at the time of the beginning of the production that Gus had died, and the owner of the present estate, Mattie, had no possible right to destroy the appellants’ future interest in this property by having children with Gus. See, for example, 28 Am. Jur. 2d, Estates, Sec. 372 and Restatement, Property, Sec. 193.

Accordingly, it is this court’s position that regardless of how appellants’ interest is characterized, they would be entitled to all of the royalties produced.

This case is reversed and remanded with directions to enter an order consistent with the decision herein.

Reversed and remanded.

Holt, J., not participating.


author: John W. Barron, Jr., Special Justice. George Rose Smith, Justice,

text:
    Janice ATTWOOD, Individually and as Mother and Next Friend of Richard Breck ATTWOOD v. The Estate of Richard Breckenridge ATTWOOD
    81-177
    633 S.W.2d 366
    Supreme Court of Arkansas
    Opinion delivered May 24, 1982

      Bridges, Young, Matthews, Holmes ér Drake, for appellant.

      Coleman, Gantt, Ramsay & Cox, by: Martin G. Gilbert, for appellee.
   John W. Barron, Jr., Special Justice.

Janice Attwood, individually and as mother and next friend of Richard Breck Attwood, brings this appeal contending that the court below erred in dismissing her complaint against the estate of Richard Breckenridge Attwood. The suit was dismissed pursuant to Arkansas Rules of Civil Procedure, Rule 12 (b) (6) for failure to state facts upon which relief can be granted. The lower court found that the family immunity doctrine was a bar to the claim asserted in the complaint.

In her complaint, appellant pled that she and Richard Breckenridge Attwood were divorce some time prior to July 3,1979 and that he had visitation rights with respect to their child, Richard Breck Attwood. Appellant further pled that on July 3, 1979, Richard Breckenridge Attwood became willfully and intentionally intoxicated and drove a vehicle while so intoxicated with the child as a passenger and also drove at a speed greatly in excess of the posted speed limit, thereby causing the vehicle to leave the roadway and overturn, killing himself and injuring the child, Richard Breck Attwood.

On appeal, appellant urges reversal on two grounds:

(1) The family immunity doctrine violates the constitutional rights of unemancipated minors to equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution in that it precludes minor children from suing their parents for injuries caused by the negligence of the parents;
(2) The automobile accident in which Richard Breck Attwood was injured resulted not from the voluntary negligence of the father but from the father’s willful, reckless and intentional actions and as such the family immunity doctrine is inapplicable.

As we have held many times that we do not rule on constitutional questions if the litigation can otherwise be resolved, we first consider the second of appellant’s two points for reversal. County of Searcy v. Stephenson, 244 Ark. 54, 424 S.W.2d 369 (1968).

Appellee’s motion to dismiss, filed pursuant to Arkansas Rules of Civil Procedure, Rule 12 (b) (6), is essentially the same as filing a demurrer before enactment of the new rules. A demurrer admits any well pled fact. Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980); L. A. Green Seed Company of Arkansas v. Williams, 246 Ark. 463, 438 S.W.2d 717 (1969). We, therefore, assume for purposes of resolving the issues presented herein that the facts recited in the complaint are true.

This appeal again brings into focus the family immunity or parental immunity doctrine. This Court in Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938), held that an unemancipated minor child could not sue a parent for an involuntary tort. The court reasoned that to permit such a suit would interfere with the parent’s authority over the child and would, therefore, encourage disobedience. This in turn would interfere with the family harmony. When next called upon to rule on this doctrine, this Court refused to extend the doctrine to include an intentional tort committed by an adoptive father on his adopted son. Brown v. Cole, 198 Ark. 417, 129 S.W.2d 245 (1939). Recently, this Court was presented with the question of whether the family immunity doctrine should bar recovery by an unemancipated minor from one standing in loco parentis for injuries resulting from an unintentional tort. Thomas v. Inmon, 268 Ark. 221, 594 S.W.2d 853 (1980). In reaffirming the doctrine, this Court stated:

“We are not persuaded by appellant’s contention that the family immunity doctrine has become a legal anachronism. Nor do we believe that the policy considerations of family harmony and prevention of collusion and fraud are no longer valid. Although more than 40 years have elapsed since Rambo we still believe in the sanctity of the family unit. ...”

This Court has stated its belief that it approves of the so-called family immunity doctrine because it promotes family harmony, preserves discipline and prevents fraud and collusion. It should be pointed out, however, that since Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15 (1957) spouses have been permitted tó sue each other for unintentional torts. In that case, this Court expressly rejected the argument that preservation of family harmony required the prohibition of suits between spouses. It is interesting to note that the Arkansas Legislature has never seen fit to change the law permitting such suits. It is also noteworthy that brothers can sue sisters and adult or emancipated children can sue their parents. So perhaps more appropriately this should be called the parental immunity doctrine.

A review of cases in various jurisdictions around the country pertaining to the parental immunity doctrine reveals that there has been a change in the philosophy of this country and that the right of the individual to be free from injury is perhaps paramount in many instances to the reasons behind the parental immunity doctrine. Rigdon v. Rigdon, 465 S.W.2d 921 (Ky. 1970). This was stated in Black v. Solmitz, 409 A.2d 634 (Me. 1979) in the following manner:

“The strong trend against across the board application of a rule of parental immunity in tort cases reflects a growing recognition that such a sweeping application results in excessive protection of the interests favored by the rule in derogation of the general principle that there should be no wrong without a remedy.”

That such a trend has mushroomed is evidenced by the fact that thirteen states have now abrogated the doctrine at least insofar as motor vehicle accidents are concerned. Other jurisdictions that have been confronted with the doctrine for the first time have refused to apply the doctrine to automobile negligence cases. Wood v. Wood, 135 Vt. 119, 370 A.2d 191 (1977); Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974); Hebel v. Hebel, 435 P.2d 8 (Alas. 1967). Some states have repudiated the doctrine in non automobile related cases. Gibson v. Gibson, 3 Cal. 3d 914, 479 P.2d 648 (1971); Peterson v. Honolulu, 51 Haw. 484, 462 P.2d 1007 (1969). State legislatures in Connecticut, North Carolina and South Carolina have enacted statutes abrogating the doctrine in automobile negligence cases. Recently the Restatement (Second) of Torts § 895 G (1979) adopted the following language:

“(1) A parent or child is not immune from tort liability to the other solely by reason of that relationship.
(2) Repudiation of general tort immunity does not establish liability for an act or omission that because of the parent child relationship is otherwise privileged or is not tortious.”

Over the years many exceptions have been made to the rule thereby eroding it further. For example, it does not apply to chidren of legal age or those who are already emancipated at the time of the tort. Lancaster v. Lancaster, 213 Miss. 536, 57 So.2d 302 (1952). The doctrine is not applied to the unemancipated child who sues his parent for injury to his property or for adjudication of his property rights under a deed or will. Signs v. Signs, 156 Ohio St. 566, 103 N.E.2d 743 (1952). Another well recognized exception involves negligent and injurious acts by a father while acting in the course of his business or vocation. Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex. 1971); Stevens v. Murphy, 69 Wash. 2d 939, 421 P.2d 668 (1966); Dunlap v. Dunlap, 84 N.H. 352,150 A. 905 (1930). Many states have recognized that a child may be permitted to sue the estate of the negligent parent if the parent died as a result of the same accident that injured the child on the basis that the reasons which may have justified barring the child’s remedy against a living parent lose much of their force when the parent child relationship is terminated by death. In Rodebaugh v. Grand Trunk W.R.R. Co., 4 Mich. App. 559, 145 N.W.2d 401 (1966), the Court elected to follow what it called the “Wisconsin” rule which permits children to recover damages for injuries respiting from acts ootside the parental relationship, but yet not subject parents to legal action for ordinary and common failures in performance of parental duties. We feel that we should be aware of the present state of the law while deciding this case.

In addressing the issue presented herein, we assume the following allegations to be true. Appellant and the child’s father were divorced and the father was exercising his visitation privilege. While so doing, he willfully and intentionally became intoxicated and drove his vehicle while so intoxicated with his child as a passenger and did drive at a speed greatly in excess of the speed limit and of what was prudent and thereby caused the vehicle to leave the roadway and overturn, causing his death and injury to the child. Certainly these allegations if true are tantamount to willful and wanton conduct. This brings us to the issue at hand. That is, should the parental immunity doctrine preclude a child from suing his parent for willful and wanton conduct? This Court in Ellis v. Ferguson, 238 Ark. 776, 385 S. W.2d 154 (1964) described such conduct as follows:

“It is not necessary to prove the defendant deliberately intended to injure the person. It is enough if it is shown that indifferent to consequences the defendant intentionally acted in such a way that the natural and probable consequence of his act was injury to the plaintiff. There is a constructive intention as to the consequences which entering into the willful, intentional act the law imputes to the offender and in this way a charge which otherwise would be mere negligence becomes by reason of a reckless disregard or probable consequences a willful wrong.” (emphasis added)

Willful and wanton conduct is also defined in AMI Civil 2d 401 as follows:

“ . . . that the person knew or reasonably should have known in the light of the surrounding circumstances that his conduct would naturally or probably result in injury and that he continued such conduct in reckless disregard of consequences.”

The issue of whether the parental immunity doctrine should bar a suit by an unemancipated minor against a parent for a willful tort is one of first impression in Arkansas, but has been addressed in other jurisdictions. Every case we have found has made such conduct an exception to the parental immunity doctrine. Thus, in Hoffman, supra, the court held that a parent who takes a child in an automobile with him and drives while he is intoxicated is temporarily abdicating his parental responsibility and, consequently, is not entitled to parental immunity which has as its purpose the encouragement of the performance of those responsibilities. In Cow gill, supra, the court made the following comments:

“The question that confronts us is whether the father was acting in his capacity as a parent when he took the course which brought death ... to his son. ... Before solving the problem let us suppose that a father, while drunk, brutally beats his daughter or seizing a gun shoots her. Should we say that in acting in such a drunken manner, he was exercising a parental function or would it not be more in keeping with the enlightened views of the day to declare that his drunken action was outside the scope of his parental prerogatives. To hold that such drunken action is within the scope of parental authority would outlaw thé child and close all courtrooms to her. . .. the mantle of parent nonliability was never intended for a case such as this.” as this.”

The issue of preserving the right of the parent to discipline his minor children was addressed in Emery v. Emery, 45 Cal. 2d 421, 289 P.2d 218 (1955). That court noted that the parent’s right to discipline his minor children is the basic policy behind the rule. In commenting on this, the court stated as follows:

“Since the law imposes on the parent a duty to rear and discipline his child and confers the right to prescribe a course of reasonable conduct for its development, the parent has a wide discretion in the performance of his parental functions but that discretion does not include the right willfully to inflict personal injuries beyond the limits of reasonable parental discipline. ... While it may seem repugnant to allow a minor to sue his parents, we think it more repugnant to leave a minor child without redress for the damage he has suffered by reason of his parent’s willful or malicious conduct. A child, like every other individual, has a right to freedom from such injury.”

We believe this to be an excellent statement as to the limits of a parent’s right to discipline.

In Nudd, supra, it was acknowledged that for the sake of family harmony, suits for negligence should be prohibited but that public policy also required that suits for willful and wanton misconduct should be permitted. The court stated its position as follows:

“To tolerate such misconduct and deprive a child of relief will not foster family unity but will deprive a person of redress without any corresponding social benefit for an injury long recognized at common law.”

The fact that willfullness has to be proven should preclude fraud or collusion from being a problem. We think it is clear that a willful tort is beyond the scope of the parental immunity doctrine as it is applied in Arkansas. This Court in Ellis, supra, stated that if a person perpetrates a willful tort which injures a person, a constructive intent to inj ure the person will be imputed. That case also points out that willful conduct is more than mere negligence. This distinction is also described in Cowgill, supra, where the court stated:

“Negligence and serious and willful misconduct are entirely different in kind. The latter involves conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its probable consequences.”

The court then met the challenge of the argument that to permit such a suit would disrupt the harmony of the family by stating as follows:

“By the wrongful conduct of the father in overstepping the bounds of the family relationship, the peace, security and tranquility of the home had already been disrupted. When the reason for the rule ceases, the rule itself ceases.” (emphasis added)

For the reasons stated above, we conclude that an unemancipated minor may sue his parent for a willful tort.

The judgment is reversed and remanded.

Adkisson, C.J., George Rose Smith and Hickman, JJ., dissent.

Holt, J., not participating.

George Rose Smith, Justice,

dissenting. Our only three precedents discussing the family immunity doctrine have adhered to a simple and clear distinction: A child can maintain a suit against his parent or against a person in loco parentis for an intentional or voluntary injury to the child, but not for an unintentional or involuntary injury. In the pioneer case, involving simple negligence, we held the action was not maintainable. Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938). In.the next instance we upheld an action based upon an adoptive father’s having deliberately poisoned his adoptive son — an intentional tort. Brown v. Cole, 198 Ark. 417, 129 S.W.2d 245,-122 A.L.R. 1348(1939). In the third case, involving mere negligence, we refused to abandon the family immunity doctrine despite arguments similar to those now presented. Thomas v. Inmon, 268 Ark. 221, 594 S.W.2d 853 (1980).

In today’s opinion the present majority quotes in support of its conclusion dictum from one Arkansas case —dictum because it was a guest statute case presenting only simple negligence, with the judgment being reversed and the cause being dismissed. Ellis v. Ferguson, 238 Ark. 776, 385 S.W.2d 154 (1964). But the controlling distinction laid down by our two guest statutes is not that between unintentional and intentional torts. Instead, it is the difference between simple negligence and willful and wanton misconduct in disregard of the rights of others. Ark. Stat. Ann. §§ 75-913 and -915 (Repl. 1979). For that reason guest statute cases should not be even persuasive precedents with regard to the family immunity rule.

In the case at bar we can feel sure from the record before us that this father did not drive his car with the intention of killing himself and injuring his child. Had the father lived it is doubtful that any cause of action against him would have been asserted in behalf of his injured son. That is so because the family immunity rule fairly represents the attitude that prevails within the overwhelming majority of American families — an attitude so firmly held that even human greed will not induce the members of the family to engage in the mockery of a collusive lawsuit having as its sole purpose the enrichment of the family and its lawyers at the expense of an insurance company. Here, however, the situation is not typical, because the father is dead. Even so, the decision may become a precedent, a precedent so fundamentally wrong and so contrary to our prior cases that I cannot let it go into the books without protesting it as best I can.

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

        Lee v. Comer, 224 S.E.2d 721 (W. Va. 1976); Williams v. Williams, 369 A.2d 669 (Del. 1976); Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907 (1975); Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972); Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971); Rigdon v. Rigdon, 465 S.W.2d 921 (Ky. 1971); Smith v. Kauffman, 212 Va. 181, 183 S.E.2d 190 (1971); Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (1970): Gelbman v. Gelbman, 23 N.Y.2d 434, 245 N.E.2d 192 (1969); France v. APA Transport Corp., 56 N.J. 500, 267 A.2d 490 (1968); Silesky v. Kelman, 281 Minn. 431, 161 N.W.2d 631 (1968); Nuelle v. Wells, 154 N.W.2d 364 (N.D. 1967); Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966).

      Conn. Gen. Stat. Ann. § 52-572C (Supp. 1979); N.C. Gen. Stat. § 1-539.21 (Supp. 1977); S.C. Code 1976, Section 15-5-210.

      It would seem, however, that a suit by an adult child against a parent would be just as disruptive as one by a minor child.

        Johnson v. Meyers, 2 Ill. App. 3rd 844, 277 N.E.2d 778 (1972); Thurman v. Etherton, 459 S.W.2d 402 (Ky. 1970); Dean v. Smith, 106 N.H. 314, 211 A.2d 410 (1965); Palcsey v. Tepper, 71 N.J. Super. 294, 176 A.2d 818 (1962) (dictum); Brennecke v. Kilpatrick, 336 S.W.2d 68 (Mo. 1960).

        Oldman v. Bartshe, 480 P.2d 99 (Wyo. 1971); Rigdon, supra; Groves v. Groves, 158 S.W.2d 710 (W. Va. 1968); Rodebaugh, supra; Hoffman v. Tracy, 67 Wash. 2d 31, 406 P.2d 323 (1965); Stevens v. Murphy, 69 Wash. 2d 939, 421 P.2d 668 (1957); Nudd v. Matsoukas, 7 Ill. 2d 608, 131 N.E.2d 525 (1956); Aboussie v. Aboussie, 270 S.W.2d 636 (Tex. Civ. App. 1954) (dictum); Wright v. Wright, 85 Ga. App. 721, 70 S.W.2d 152 (1952) and Cowgill v. Boock, 189 Ore. 282, 218 P.2d 445 (1950).


author: Per Curiam.

text:
    Charles E. LEWIS v. STATE of Arkansas
    633 S.W.2d 371
    Supreme Court of Arkansas
    Opinion delivered May 24, 1982
    Petitioner, pro se.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

On March 16, 1981 Charles E. Lewis was convicted of possession of a controlled substance with intent to deliver. He was sentenced to a ten-year term of imprisonment and fined $2,000. He was represented at trial by Robert F. Morehead, who has never been relieved as counsel of record in the case.

Lewis, acting pro se, has filed a motion for belated appeal in which he alleges that his attorney was aware of his desire to appeal but failed to file the record in this Court. Lewis also requests that his appeal bond be reinstated and that an attorney other than Mr. Morehead be appointed to represent him on appeal.

In an affidavit filed in response to the motion, the attorney concedes that he told Lewis to get the record from the court reporter and take it to the Supreme Court Clerk. Instead, Lewis mailed the record to the attorney who then attempted to file it. Since the record was not complete, however, it was not accepted by the Clerk. Apparently, the record was subsequently completed by the court reporter but no further attempt was made to lodge it with this Court. The attorney implies that he did not seek to file the record again because his client could not decide at that point whether he wanted to pursue the appeal.

It is the duty of the attorney to see that the record on appeal is properly maintained and timely filed. Attorney Morehead’s affidavit gives no good reason for his failure to lodge the record. This Court will accept an appeal in a criminal case where to do otherwise could be a denial of the appellant’s constitutional right to effective assistance of counsel. Moore v. State, 267 Ark. 548, 592 S. W.2d 450 (1980). In this case, we must conclude that the record was not lodged by virtue of the attorney’s, error and grant Lewis’ pro se motion for belated appeal. See, our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases.

Appellant’s request to have Mr. Morehead relieved as counsel and his request to have the appeal bond reinstated are denied.

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

Motion for Belated Appeal granted.


author: Richard B. Adkisson, Chief Justice.

text:
    Dr. Neil HINSLEY v. ARKANSAS STATE BOARD OF DENTAL EXAMINERS
    81-193
    633 S.W.2d 696
    Supreme Court of Arkansas
    Opinion delivered June 1, 1982

      Kaplan, Hollingsworth, Brewer ir Bilheimer, for appellant.

      William H. Trice, III, for appellee.
   Richard B. Adkisson, Chief Justice.

The Arkansas State Board of Dental Examiners (hereinafter the Board) suspended the license of appellant, Dr. Neil Hinsley, for one year and 90 days after finding that he had practiced dentistry under a false name and had permitted unlicensed persons under his supervision and control to practice dentistry. The Pulaski County Circuit Court sustained the Board; on appeal, we reverse.

The Board charged appellant with violating Ark. Stat. Ann. § 72-659 and § 72-560 (7) (Repl. 1979) but found him “guilty” of violating Board rules and regulations. In its order of April 9, 1981, the Board specifically found that:

Neil Hinsley is guilty of violating Article 12, Section I of the Rules and Regulations of the Arkansas State Board of Dental Examiners in that he practiced under a name other than a name which he is licensed to practice, and as such is to have his license to practice dentistry suspended for a period of 90 days. It is further found that Neil Hinsley is guilty of violating Article 12, Section E of the Rules and Regulations of the Arkansas State Board of Dental Examiners in that he aided or abetted an unlicensed person to practice dentistry in the state of Arkansas and as such he will have his license to practice dentistry in the state of Arkansas suspended for a period of one year. It is further found that the two periods of suspension of his license to practice dentistry, referred to above, will be consecutive in nature, and that the total amount of suspension will be one year and ninety days from the date of this order.

The only issue on appeal is whether there is substantial evidence to support the Board’s finding that appellant was “guilty” of violating these rules and regulations. Testimony at the hearings before the Board revealed that the alleged incidents of misconduct occurred before the effective date of the rules. Mr. Trice, attorney for the Board, admitted that these rules did not go into effect until September 1,1980, and that “The statutes are all that need to be considered in this case ...”

It is a fundamental element of due process that a rule, the violation of which would cause a person to lose a valuable property right, must be in existence before it can be violated. There is not, nor could there be, substantial evidence to support the Board’s finding that its nonexisting rules were violated.

We cannot assume that the Board intended to find appellant “guilty” of violating Ark. Stat. Ann. § 72-559 and § 72-560 (7) when the Board’s order plainly states otherwise. We do not reach the issue of whether or not the Board could have suspended Dr. Hinsley’s license had it found that he had violated Ark. Stat. Ann. § 72-559 which provides for a fine of from $50 to $500 upon conviction.

Reversed.


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

text:
    Luther HALL v. STATE of Arkansas
    CR 81-130
    634 S.W.2d 115
    Supreme Court of Arkansas
    Opinion delivered June 1, 1982
    [Rehearing denied June 28, 1982.]

      Robert A. Newcomb, for appellant.

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

On June 16,1980, Luther Hall acted as a lookout while his two accomplices killed Leonard Jones and Carl Jackson by shooting them repeatedly while they were tied up in the trunk of a car. After that the three men decided to rob Rosemary Bogard and killed her in the course of that felony.

Hall was first tried separately for the capital murder of Jones and Jackson, was found guilty, and was sentenced to life imprisonment without parole, the State having waived the death penalty. About 70 days later Hall was tried for the capital felony murder of Rosemary Bogard, was found guilty of second degree murder, and was sentenced as an habitual criminal to 30 years’ imprisonment, to run consecutively to the life sentence. The first case was appealed to this court. The second case was transferred to us and consolidated with the first one, because related issues with regard to Hall’s confession are involved. Four points for reversal are presented.

First, it is argued that Hall’s confession should have been excluded as having been involuntary. Hall was arrested on a warrant one Friday morning and after having been warned of his rights was interrogated for some time, but he made no statement. He was not questioned on Saturday or Sunday. On Monday morning he was taken before the municipal court, where the judge again explained his rights and explained the charges and the right to appointed counsel. Hall said that he would retain his own counsel. Upon being returned to the jail Hall said he wanted to make a statement, apparently to give his side of the occurrences as opposed to that of the other two suspects. After being informed of his rights for still a third time Hall made a detailed confession, which was tape recorded. The statement covered both criminal episodes, but only that part relating to the killing of Jones and Jackson was eventually read to the jury at the first trial.

The voluntariness of the confession turned almost entirely upon matters of credibility. No physical mistreatment of any kind is alleged, but there were conflicts in the testimony about whether Hall was allowed to make telephone calls or was promised leniency. Having given due weight to the trial judge’s advantageous position in the resolution of such conflicts, we cannot say his decision was clearly erroneous. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981).

Second, at the close of the State’s proof defense counsel moved for a directed verdict because of a supposed fatal variance between the information and the proof, in that the information charged that the defendants, with the purpose of causing the death of “another” person (instead of “any” person, as the statute reads, Ark. Stat. Ann. § 41-1501 [c] [Repl. 1977]), caused the death of Jones and Jackson. The trivial variance in wording had no prejudicial effect whatever upon Hall’s substantial rights and does not call for serious discussion. For more than a century it has been the state’s policy to disregard such defects. Ark. Stat. Ann. § 43-1012 (Repl. 1977).

Third, since the decision in Jackson v. Denno, 378 U.S. 368 (1964), the trial judge determines the voluntariness óf a confession after an in-chambers hearing and is not required to resubmit that issue to the jury. Walker v. State, 253 Ark. 676, 488 S.W.2d 40 (1972); Brown v. State, 239 Ark. 909, 395 S.W.2d 344 (1965), cert. denied 384 U.S. 1016 (1966). Consequently, as explained in AMCI 200, Comment, the Arkansas model criminal jury instructions do not include an instruction with respect to confessions, because the weight and credibility of the testimony are matters to be argued by counsel.

Nevertheless, the trial judge is free to submit the issue of voluntariness to the jury if he thinks it to be appropriate. Here the trial judge said he was submitting the issue because he was asked to do so by the prosecution and by the defense. As between the two instructions that were offered, he gave the State’s instruction after modifying it to include an explanation that the presumption that an in-custody confession is involuntary must be overcome by the State by a preponderance of the evidence.

The two tendered instructions were substantially similar, but it is argued that the State’s instruction, given by the court, was defective in two respects: First, it did not specifically refer to a promise of leniency. It did, however, refer to any promise or favor, which was certainly sufficient to enable counsel to argue the matter to the jury. Second, it did not tell the jury that the requirement of voluntariness is based upon the constitutional privilege against self-incrimination. We find it impossible to believe that the inclusion of such an abstract statement of the source of law would have had any effect upon the jury’s deliberations.

Fourth, even though the same confession was introduced in both cases after the trial judge had determined its voluntariness at a Denno hearing preceding the first trial, it is insisted that he should have conducted a second Denno hearing at the second trial for a second determination of the same question. In denying the motion for another hearing the trial judge said: “Apparently from what I’m told there would be no difference in the testimony, there would be no new evidence, no new witnesses, and it would simply be an exercise in futility — really an endurance contest — to hear the same thing I’ve spent a day listening to already.... I’m going to order that a transcript of the Denno hearing held in the previous case ... be made a part of the record in this case.”

We find no abuse of the trial court’s discretion. The first Denno hearing had consumed almost a day. Fourteen witnesses, including a police officer from another county, had testified. If defense counsel had any new matter to offer, witnesses could have been called to supplement the original proof. No such offer was made. Following our practice of giving a commonsense interpretation to statutes, we cannot construe the pertinent statute as mandatory in the circumstances now presented. Ark. Stat. Ann. § 43-2105; and see Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979); Ark. State Hwy. Commn. v. Mabry, 229 Ark. 261, 315 S.W. 2d 900 (1958).

We discern no prejudicial error in the various other objections and rulings that have been brought to our attention.

Affirmed.

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

John I. Purtle, Justice,

dissenting. I dissent from the majority opinion only as to the admission of appellant’s statement into evidence. It is a fundamental principle that a custodial statement is considered involuntary and the state has the burden of proving it was voluntarily, knowingly and intelligently made after the accused has been informed of his constitutional rights.

In the present case the appellant states, and the record shows, that he was apprehended on a Friday morning and held in either the maximum security section of the jail or in the interview room until the following Monday morning. He alleged he was denied the right to make a telephone call during these three or four days. In the ordinary course of business the Pulaski County jail keeps a record which would show whether appellant was allowed to make a telephone call and where he was kept during the time he was in custody. Unfortunately, the Pulaski County jail’s records for the critical days were missing at the time of trial on June 15, 1981. Mr. Ron Routh, the jail administrator, had said that the records for the maximum security section of the jail had existed as late as April of 1981. The missing records would have clearly established the testimony of one side or the other.

Appellant further stated he was promised that the number of charges would be reduced if he gave a statement. He gave a statement and some charges were dropped.

Under the circumstances I do not believe the confession was voluntary.

Adkisson, C.J., joins in this dissent.


author: Frank Holt, Justice.

text:
    FIRST AMERICAN NATIONAL BANK v. COFFEY-CLIFTON, INC.
    82-65
    633 S.W.2d 704
    Supreme Court of Arkansas
    Opinion delivered June 1, 1982

      Blevins if Pierce, by: Robert E. Marston, for appellant.

      Brazil, Roberts if Clawson, by: Charles E. Clawson, Jr., for appellee.
   Frank Holt, Justice.

Appellant brought this action for the collection of a third party’s debt which had been guaranteed by the appellees. In March, 1979, Ruth Millien purchased a used mobile home from the appellee and executed a conditional sales security agreement for the balance of the indebtedness. Thereupon, the appellee assigned with recourse its rights in the agreement to the appellant. In conjunction therewith, the appellee executed a guaranty agreement promising payment of any balance due in the event Millien defaulted. Millien became delinquent in her payments and filed for bankruptcy after the effective date of the 1978 Federal Bankruptcy Act. This default triggered an acceleration clause in the security agreement causing the balance of $3,273.61 to become due and payable. The bankruptcy court found the property to have a value of $2,000 and approved a payment plan for Millien as a bankrupt. The appellant then filed this action to enforce the guaranty agreement when the appellee refused to pay the balance due.

Appellee responded that the appellant was estopped to assert its rights pursuant to the appellee’s guaranty of the indebtedness, because appellant failed to participate or make any effort to preserve its interest at the bankruptcy hearing. All material facts were stipulated and no testimony was presented. Based upon the pleadings, the interrogatories, exhibits, and the stipulation, appellant moved for a summary judgment which the court denied. The court found that the appellant had complied with the provisions of appellee’s guaranty, and appellee had failed to honor it; even so, the trial court held that the Federal Bankruptcy Act is unconstitutional as applied here; that the act deprived the appellee of property without due process of the law and interfered with the contractual relationship of the parties. The court ordered that any losses suffered by the appellant and the appellee be borne equally.

We first consider appellant’s contention that the Federal Bankruptcy Act has not unconstitutionally interfered with the contractual relationship existing between appellant and appellee. In other words it is inapplicable. We agree. A guaranty is a collateral undertaking by one person to answer for the payment of a debt of another. Gulf Refining Co. v. Williams Roofing Co., 208 Ark. 362, 186 S.W.2d 790 (1945); 38 Am. Jur. 2d Guaranty § 2. A guarantor is one who makes a contract, distinct from the principal obligation, to be collaterally liable to the creditor if the principal fails to perform. Williston on Contracts 3rd, § 1211 (1967). The undertaking of the principal debtor is independent of the promise of the guarantor. Coombs v. Heers, 366 F. Supp. 851 (D.C. Nev. 1973). Upon default of the principal debtor and satisfaction of conditions precedent to liability, promise of guarantor becomes absolute. National Bank of Washington v. Equity Investors, 506 P.2d 20 (Wash. 1973); Ranier Nat. Bank v. Lewis, 635 P.2d 153 (Wash. App. 1981). For a guarantor to become liable under a guaranty of payment, there need only be a failure of the primary obligor to make payment. In re Waters, 8 B.R. 163 (1981).

Here, it is undisputed that the principal debtor, Mil-lien, defaulted owing a balance on her contract of $3,273.61; appellee is the guarantor of Millien’s loan as alleged by the appellant; and that all conditions precedent to appellee’s liability have been satisfied. 11 U.S.C.A. § 524 (e) (1978) provides that the “discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.” The committee commentary or notes with respect to this section state that the “discharge of the debtor does not affect co-debtors or guarantors.” In Johnston v. Missouri Pacific Railroad Co., Thompson, Trustee, 203 Ark. 1036, 160 S.W.2d 39 (1942), construing 11 U.S.C.A. § 34 (1898), which is the predecessor and similar to § 524 (e) supra, we reiterated: “The rights of the creditor against third partes liable jointly with the bankrupt or secondarily for him are not impaired by the bankrupt’s adjudication nor by the bankrupt’s discharge.” Here, the appellant is not seeking to collect from the principal debtor, Millien. Rather, appellant is proceeding against a separate entity, the appellee, as the guarantor of that indebtedness. The very purpose of a guaranty agreement is to provide an alternate source of payment in the event of default. In our view the Bankruptcy Act is plainly not applicable to the facts in this case.

We deem it unnecessary to reach or discuss appellant’s other contentions concerning the constitutionality of the Bankruptcy Act.

Reversed and remanded with directions to render a summary judgment as sought by the appellant.

Reversed and remanded.


text:
    Keith Michael GLOVER v. STATE of Arkansas
    CR 82-5
    633 S.W.2d 706
    Supreme Court of Arkansas
    Opinion delivered June 1, 1982

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

      Steve Clark, Atty. Gen., by: A lice Ann Burns, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted of aggravated robbery and theft for the March 13, 1980 robbery of the McDonald’s restaurant at 5000 West Markham in Little Rock. For the aggravated robbery he was sentenced to 40 years imprisonment and was assessed a $5,000.00 fine and for the theft he was sentenced to 10 years imprisonment and was assessed a $5,000.00 fine. Jurisdiction is in this court under Rule 29 (1) (b). The sole designated point for reversal is whether the trial court committed error in admitting identification evidence from a pre-arrest lineup. We affirm the trial court.

The evidence established that appellant and an accomplice forced their way into the restaurant after closing hours while two employees were cleaning the interior of the building. They forced one of the employees to call a night manager, who had a key to open the safe, and tricked him into driving to the restaurant. The aggravated robbery and theft then occurred. Appellant and the accomplice were clearly observed by the employees for approximately 25 minutes. The police report described one of the robbers, who was later identified as appellant, as a white male, being twenty-five years old, standing six feet two inches tall, weighing one hundred sixty-five pounds, having blue eyes and light brown hair, being clean shaven and identifying in detail his clothing. Five days after the robbery appellant was placed in a pre-arrest lineup and was positively identified by two of the employees.

The appellant questions the validity of the identification procedure. There are usually two procedural steps involving identification evidence. First, the trial judge examines the procedure used at the lineup to determine if the evidence is admissible. Second, after the evidence has been ruled admissible, the jury weighs the reliability of the identification evidence under the instructions of the court. The appellant contends that the trial judge committed error in the first step and should not have admitted the identification evidence because it was (1) impermissibly suggestive and (2) was not relevant. We affirm the trial court.

The Supreme Court of the United States has ruled that a state criminal court is not required by the Due Process Clause of the Fourteenth Amendment to conduct a hearing out of the jury’s presence whenever a defendant contends that a witness’ identification was arrived at improperly. Watkins v. Sanders, 449 U.S. 341 (1981). Even though such a procedure is not constitutionally required we emphasize the prudence of such a hearing especially when, as here, the defendant has filed a motion to suppress. See Wright v. State, 258 Ark. 651, 528 S.W.2d 905 (1975).

At a hearing on a motion to suppress the trial judge must first determine the reliability of identification. The judge must look to the totality of the circumstances to see if there is a likelihood of misidentification. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). If there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the criminal, then the procedure is so undermined it violates due process. Foster v. California, 294 U.S. 440 (1969). It is the reliability of the evidence that is the linchpin in determining its admissibility. Matthews v. State, 275 Ark. 1, 627 S. W.2d 20 (1982). We do not reverse a trial judge’s ruling on the admissibility of identification evidence unless it is clearly erroneous because it is a ruling on a mixed question of law and fact. Beed v. State, supra.

We have articulated several factors to be considered in assessing reliability. They include: prior opportunity of the victims to observe the crime and its perpetrator; the lapse of time between the crime and the lineup procedures; discrepancies between descriptions given the police and the defendant’s actual description; the occurrence of pretrial misidentification; the certainty of the witness in identifying the accused; the facts and circumstances regarding the identification and all matters relating to the identification. James and Elliott v. State, 270 Ark. 596, 605 S.W.2d 448 (1980).

The lineup in this case was conducted on March 18, 1980, which was only five days after the robbery. The participants in the lineup, other than appellant, included two persons from lockup and three police officers. All were dressed in plain clothes. All were white males of approximately the same age. Although one of the participants was a little short of six feet, all were near the same height. Five had long or longish brown hair and the sixth had average length hair. At least two, and possibly three had a moustache but otherwise were clean shaven. Both police officers testified that they did not suggest who should be identified. The participants in the lineup may be fairly said to resemble the appellant.

Appellant contends that he did not have a moustache and yet two or three of those in the lineup had moustaches. That factor is not sufficient to establish that the lineup was impermissibly suggestive, especially since the police had the description of appellant and his accomplice. One was described as being clean shaven without a moustache and the other clean shaven with a moustache. Until the appellant was identified the police had no way of knowing which alleged robber was being placed in the lineup.

We cannot say that the trial judge was clearly erroneous in holding that the lineup procedure was not impermissibly suggestive.

In appellant’s second contention he admits that he was positively identified at trial and therefore, he argues, the extrajudicial identification was not relevant. We have frequently held that a prosecuting witness may testify that he saw or identified the defendant before or after the offense. Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980); Bishop v. State, 236 Ark. 12, 364 S.W.2d 676 (1963); French v. State, 231 Ark. 677, 331 S.W.2d 863 (1960); Birones v. State, 105 Ark. 82, 150 S.W. 416 (1912). The pre-information identification is relevant.

Affirmed.


text:
    STATE of Arkansas v. W. T. VOWELL
    CR 82-41
    634 S.W.2d 118
    Supreme Court of Arkansas
    Opinion delivered June 1, 1982
    [Rehearing denied June 28, 1982.]

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for petitioner.

      Rhine, Rhine ir Young, by: Robert E. Young, for respondent.
   Robert H. Dudley, Justice.

The Court of Appeals reversed and remanded respondent’s conviction for first degree battery. Vowell v. State, 274 Ark. App. 150, 628 S.W.2d 599 (1982). The reversal was based upon two points of statutory interpretation. We granted certiorari pursuant to Rules 29 (6) (a) and 29 (1) (c) to review (1) whether voir dire was conducted in accordance with Ark. Stat. Ann. § 43-1903 (Repl. 1977), and (2) whether there was error in admitting evidence pursuant to Ark. Stat. Ann. § 28-1001, Rule 404 (b) (Repl. 1979).

At trial, the respondent Vowell moved that the State and the respondent voir dire each prospective juror one at a time and, at the conclusion of individual voir dire, the State and then the respondent exercise their peremptory challenges. The trial court denied the motion and ruled that the State could conduct voir dire on three jurors at a time and the respondent could conduct individual voir dire. The Court of Appeals held that § 43-1903 requires that voir dire be conducted upon one prospective juror and that juror be accepted or rejected before the next juror be examined. We reverse the holding of the Court of Appeals because the respondent has shown no prejudice, even though an erroneous voir dire procedure may have been used. In his designation of the record for appeal the respondent specifically excluded voir dire questioning. As a result, we do not know whether either party exercised a peremptory challenge.

Before the State can gain an unfair advantage by the procedure used at trial it must exercise a peremptory challenge. Since the record does not reflect peremptory challenges, if any, the respondent has not demonstrated prejudice. In Arkansas we have long held that a judgment of conviction will be reversed for prejudicial errors only. Lee v. State, 73 Ark. 148, 83 S.W. 916 (1904). That is still the law. We do not reverse for non-prejudicial errors. Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977). We have often applied this principle to jury selection. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980); Satterfield v. State, 252 Ark. 747, 483 S.W.2d 171 (1972); Green v. State, 223 Ark. 761, 270 S.W.2d 895 (1954). Thus, we reverse the Court of Appeals on this point.

The evidence indicated the respondent had been drinking most of the day and was driving in an intoxicated condition when his automobile crossed the center line of a highway and collided with the victim’s vehicle. The respondent took the stand and testified on direct examination that the wreck was an accident caused by a mechanical malfunction of his automobile. The trial court allowed the State to cross-examine him about three convictions within the past twenty-six months for driving while under the influence of intoxicants in violation of Ark. Stat. Ann. § 75-1027 (Repl. 1977) and allowed the State to cross-examine him about driving while his license was revoked. The Court of Appeals held the questions on cross-examination were improper. We reverse the holding of the Court of Appeals on this issue and hold that the cross-examination was proper.

Rule 404 (b) is as follows:

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

The respondent was charged with causing serious physical injury “under circumstances manifesting extreme indifference to the value of human life.” Ark. Stat. Ann. § 41-1601 (1) (c) (Repl. 1977). The quoted phrase is not more specifically defined in the Criminal Code, but it is in the nature of a culpable mental state, Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977), and therefore is akin to “intent,” for the proof of which evidence of other offenses is admissible under Rule 404 (b).

Pursuant to Rule 404 (b) the evidence of the three convictions for driving while under the influence of intoxicants and the fact respondent was driving while his license was revoked were admissible on cross-examination to prove the warning quality of the other convictions and to infer that the respondent must have arrived at a mental state inconsistent with mistake and consistent with the culpable mental state of causing serious physical injury “under circumstances manifesting extreme indifference to the value of human life.”

Because of its disposition of the case, the Court of Appeals did not rule on respondent’s point alleging that the trial court committed error in failing to grant a directed verdict. Because of our holding, we have found it necessary to examine the point and we find the evidence was sufficient to support the conviction. We find no reversible error in the other five points raised.

Reversed and the judgment of conviction is affirmed.

Hickman and Purtle, JJ., concur.

Darrell Hickman, Justice,

concurring. I concur with the result. I have not changed the view I expressed in Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977). Therefore, I can find no “intent” or culpable mental state in the charge of first degree battery. I feel the prior convictions were admissible simply to rebut Vowell’s statement that the vehicular collision was an accident. See Ark. Stat. Ann. § 28-1001, Rule 404 (b); Enriquez v. U.S., 188 F.2d 313 (9th Cir. 1951).

Purtle, J., joins in this concurrence.