text:
    AMOCO PRODUCTION COMPANY v. C. O. “Jack” WARE et al
    80-76
    602 S.W. 2d 620
    Supreme Court of Arkansas
    Opinion delivered June 23, 1980
    Rehearing denied October 2, 1980

      Keith, Clegg & Eckert, and George G. Gibson, for appellant.

      Robert J. Moffatt, Shreveport, La., and Chambers & Chambers, by: Melvin TChambers, for appellees.
   Darrell Hickman, Justice.

This is, an appeal from a Columbia County Chancery decree cancelling an oil and gas lease that the appellant,. Amoco Production Company, had been granted by C. O. “Jack” Ware and others.

The chancellor, found;that the lease should be. cancelled because Amoco had breached implied covenants of the lease, had failed to act in good faith and had abandoned the interests of the lessors.

■ On appeal, Amoco raises four allegations of error, essentially árguing that the chancellor was wrong in'his findings. Wé agree with Amoco that the court was in error in cancel-ling the lease and reverse the decree.

The particular tract of land involved in this case consists of about 73 acres and it is located in the South Half of the Southwest quarter of Section 31, Township 19 South, Range 18 West in Columbia County, Arkansas. A consideration of the issues in this case cannot be limited to just those concerning this tract of land because it part of what is called the Chalybeat Springs Oil and Gas Field. That field covered an area of about seven miles in length with a width varying from a half mile to two miles.

In 1971, Amoco drilled in this area and found oil. Thereafter, Amoco and others conducted extensive geological surveys, collecting data and drilling other wells. It soon became apparent that this particular oil field had a gas cap; a formation of natural gas existed on top of the oil formation. This meant that if the gas were drawn off, the oil could not be recovered because the pressure in the natural gas formation was needed to recover the oil.

Therefore, it was decided the only reasonable and prudent way to develop the field and recover the oil and gas from it was to do so by making the entire field one unit, a procedure called unitization. Unitization essentially means that all of those who have a legal interest in the oil and gas join together in a common plan to gain effective production from the field. In this case it was also decided that secondary recovery procedures should be used. Gas from some wells would be withdrawn and reinjected into the formation to maintain pressure in the formation so that oil could be produced from other wells. Amoco held the major working interest in the field. That interest was over 60%. Ware owned royalty interests elsewhere in the field besides the tract in question, and does not question Amoco’s dealings regarding those interests.

Before Amoco was able to get a unitization plan approved by the Oil and Gas Commission, Murphy Oil Company filed for a drilling permit in the SW-1/4 of Section 31-Murphy had a lease on most of 80 acres just north of Ware’s tract. According to the geological data introduced as evidence in this case, the outer limits of this oil field would not extend to the land that Murphy had a lease on. About six acres of the north half of this quarter section was depicted as having some of this field beneath it, the remainder having none of the field beneath it — in other words, the Chalybeat Field ended at about Ware’s north property line.

A hearing on the drilling permit was held before the Oil and Gas Commission. Amoco was there as well as Ware and others. The Oil and Gas Commission decided that a drilling unit would consist of all the SW-1/4 of Section 31, 160 acres. Effectively, this order meant that Murphy would be able to share in the oil and gas that was beneath Ware’s land — if one accepted the geographical data as correct. The Oil and Gas Commission generally determines what a drilling unit is on the basis of acreage rather than geographical formations underneath the earth. Amoco argued strenuously against Murphy, offering evidence that there was little or no oil and gas beneath Murphy’s tract and that it would be very unfair to permit Murphy to share in the oil and gas. Ware was at the hearing and testified on behalf of Amoco’s position.

Amoco filed a notice to appeal the Oil and Gas Commission’s ruling but did not pursue it. Instead it entered into a unitization agreement regarding the field which essentially permitted Murphy to come into the field and share in the oil and gas produced. Amoco presented evidence that Murphy was included simply because the Oil and Gas Commission had already effectively ruled that Murphy could share in the oil and gas produced from the SW -1/4 of Section 31-

Ware sued Amoco alleging that it should have appealed the decision of the Oil and Gas Commission, should not have entered into the unitization agreement, had permitted drainage to occur to his property and asked for money damages and cancellation of the oil and gas lease.

The chancellor concluded that Amoco had permitted drainage to occur to Ware’s tract of land but that Ware had acquiesced in the drainage believing that unitization would best serve his interests. Drainage is a term that simply describes the process where one would lose oil and gas beneath his property to wells operating on adjacent property. The chancellor declined to award damages for drainage but ordered the lease cancelled. The chancellor found that Amoco assured Ware of protection of his royalty interests and that Ware relied on these assurances; that Amoco abandoned Ware and, in effect, diluted Ware’s royalty interest by half; Amoco was solely motivated in furthering its own interests in entering into the unitization agreement and that Amoco, as a lessee, owed a duty to “protect the interest” of the lessor and had breached this duty.

Amoco certainly had a duty to act for the mutual advantage of both Amoco and Ware. However, in determining if Amoco did perform in a reasonable and prudent manner, due deference should be given to the judgment of Amoco, as an operator, regarding how development should proceed. Amoco had to use sound judgment and not act arbitrarily. Saulsberry v. Siegel, 221 Ark. 152, 252 S.W. 2d 834 (1952); Poindexter v. Lion Oil Refining Co., 205 Ark. 978, 167 S.W. 2d 492 (1943).

A preponderance of the evidence shows that Amoco acted at all times as a reasonable and prudent operator, that there was no implied covenant in the lease that was breached, and certainly there is not a preponderance of the evidence that Amoco acted solely in its own interests.

Amoco had a duty to all of the leasehold interests in this field, not just Ware. This duty was divided as to Ware because he had other royalty interests in the oil field. All other interests were best served by unitization.

The fact Murphy was granted a permit to drill a well in this quarter section was a determination of rights, a finding of principle — Murphy could share in the oil and gas produced from the quarter section. Nobody ever deemed a well desirable in the SW-1/4, not Murphy, Amoco, or Ware.

Ware indicated at the Oil and Gas Commission hearing he did not want a well drilled on his 80 acres for two reasons. First, it might produce a dry well and thereby deprive him of any interest in the oil and gas produced from this field. Second, he realized, and it was not disputed, that an oil well should not be drilled on this 80 acres because of the gas cap. Such a well could not be a profitable producer. A well drilled nearby to Ware’s tract was the well that conclusively proved that a gas cap existed, and that well’s production was severely limited so that the remainder of the field could be worked and all of the oil and gas effectively recovered. It was not disputed that if a well was drilled into the gas cap and not limited, 1300 barrels of oil a day could be lost.

Amoco did have a small working interest in some of the area to the north of Ware. Ware argues the unitization agreement increased Amoco’s interest at the same time Ware’s was reduced; that Amoco proposed the unitization agreement considering only its interests. Amoco had over a 60% working interest in the field and owed the same duty to all of its royalty interest holders it owed to Ware. To say that it acted solely on its behalf is to ignore Amoco’s obligations to all the royalty holders, as well as itself, and other producers and royalty holders in the Chalybeat Field. Unitization was the only answer for this field and the sooner the better.

After the Oil and Gas Commission ruled against Amoco and Ware, Amoco entered into the unitization agreement. Ware was present when that agreement was presented to the Commission. There is no evidence, aside from the agreement itself, that Amoco acted improperly.

The chancellor found that the lease had an implied covenant for Amoco to “protect the interest” of Ware, and that it breached this covenant. Essentially the chancellor found, that Amoco had a duty and obligation to appeal the Oil and Gas Commission’s decision to a court of last resort. We find no such implied duty or obligation in the lease nor from the facts in this case.

The parties had a comprehensive oil and gas lease with the usual provisions and expressed covenants. An implied covenant is one that may be reasonably inferred from the whole agreement and the circumstances attending its execution. They are not favored by the law and can be justified only upon the ground of legal necessity arising from the terms of the contract and the circumstances attending its execution. 20 Am. Jur. 2d, Covenants, § 12.

According to a leading authority in the field of oil and gas law, there are essentially five types of implied covenants in oil and gas leases: A covenant to drill wells within a reasonable time, testing the land for oil and gas; a covenant to drill test wells within a reasonable time after notice; a covenant, if oil or gas be found in paying quantities, to proceed with reasonable diligence in drilling sufficient number of wells to reasonably develop the premises; a covenant to protect the land from drainage through wells on adjoining lands, by drilling offset wells; and, a covenant to market the produce of producing wells. Summers, The Law of Oil and Gas, Chpt. 13, § 395 (Vol. 2, 1959).

We find no authority for the type of implied covenant the chancellor imposed in this case.

It may be the chancellor meant in this case that from the facts and circumstances, Amoco had misled Ware or had made promises upon which Ware relied to his detriment. We disagree with that judgment. First, there is no evidence at all that Amoco told Ware it would or would not appeal the decision of the Oil and Gas Commission. It did file a notice of appeal and it did withdraw that notice. In neither instance did it notify Ware. Therefore, he was not misled by the simple fact the appeal was not pursued.

Furthermore, Ware himself could have appealed the decision of the Oil and Gas Commission. Ark. Stat. Ann. § 53-120 (Repl. 1971).

Whether the Oil and Gas Commission was right in holding as it did is not before us. To examine that issue would be collateral attack on the order of the Oil and Gas Commission and such an attack is not permitted.

The appellee offered no evidence that Amoco made a “deal” with Murphy to Ware’s detriment or did anything except acquiesce in the judgment of the Oil and Gas Commission. There is no evidence at all that the Commission’s decision would be readily reversed by a reviewing court. Amoco simply used its best judgment and proceeded to have a unitization order entered regarding this field in conformity with what the Oil and Gas Commission had already decided — as it related to this particular quarter section of land.

There is a duty for an operator to act reasonably and prudently regarding production. In this case Amoco’s judgment regarding this entire field must be considered to determine if it acted reasonably and prudently. At every instance it attempted to prevent waste and proceed with unitization. It is only regarding this one section of land that it is accused of favoring its own interest over that of a lessor. Whether drainage occurred to Ware’s oil and gas was sharply disputed. Reviewing the evidence de novo we cannot say a preponderance of the evidence is that drainage did occur to Ware’s property.

An almost identical situation occurred in nearby Section 28. Persons holding oil and gas interests in the North Half of the Southwest Quarter of that section were permitted to share on a pro rata basis, according to acreage, with individuals holding an interest in the south half. The geological data for Section 28 is about the same as that for Section 31; it seems the persons holding interests in the north half will share, to their advantage, with those holding interests in the south half. So Ware’s situation was not unique.

It is suggested that no one holding an interest outside the geological perimeter of the field should be permitted to share in the proceeds. That is a nice concept. However, drilling units and unitization are normally, if not always, determined by acreage, and not by geographical lines that indicate whether oil may or may not be under the surface. What lies underneath the ground cannot be determined exactly unless wells are drilled. We cannot review the Commission’s finding in this appeal; we cannot say it was absolutely wrong for the Commission to allow Murphy to share in the production.

Ware’s posture in this case is essentially that he wants the best of all possible worlds. He did not want a well drilled on his land because it might deprive him of his royalty if the hole were dry; also, he knew that a well drilled would not be productive because of the gas cap. Nor did he want any adjacent property owners to share in the production. Amoco had a choice, after the permit was granted to Murphy, to either drill the well or permit Murphy to drill it at an extreme penalty to Amoco. Either way, Amoco lost and Ware lost. Nobody wanted the well, only the benefits if the field were unitized. Ware argues that Amoco’s loss was diminished when the unitization agreement was approved; that unitization cut Amoco’s losses. That may be true, but that alone is insufficient to support a finding of self-dealing. If unitization had not been approved and if the case had been appealed to a court of last resort, whatever that court may be, it could have worked to a greater detriment to both Amoco and Ware. Furthermore, it would obviously have worked to the detriment of the other parties, including Ware, who had an interest in the field. The evidence indicates that the reasonable and prudent thing to do is exactly what Amoco did.

Ware argued at the trial level and on appeal that Amoco acted in bad faith throughout this entire period of time. At one point Ware argued that Amoco damaged him by delay in appealing the decision of the Oil and Gas Commission. Now Ware is arguing that it was wrong not to appeal the decision of the Oil and Gas Commission. There were numerous allegations of bad faith and misconduct on the part of Amoco but there was no evidence to support those allegations. Ware testified that any promises that were made were brought out in the testimony before the Oil and Gas Commission. We have examined the record and we can find no promise Amoco made that Amoco had the power to fulfill that was not done or diligently pursued.

For the reasons stated, we must conclude the findings are clearly erroneous and the decree is reversed.

Reversed.


source: Caselaw Access Project

author: Darrell Hickman, Justice. John F. Stroud,

license: Public Domain

text:
    Ivory Joe CLINKSCALE v. STATE of Arkansas
    CR 80-14
    602 S.W. 2d 618
    Supreme Court of Arkansas
    Opinion delivered June 23, 1980
    Rehearing denied August 25, 1980

      John W. Achor, Public Defender, by: Lavona M. Wilson, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Ivory Joe Clinkscale was convicted of theft of property and sentenced to 10 years imprisonment, consecutive to a term he is presently serving.

He alleges only one error on appeal: The trial court was wrong in sentencing him because it considered prior convictions not alleged in the information.

The information, filed January 18, 1979, alleged Clinkscale had been convicted of “two or more” prior felonies and asked for an increased sentence pursuant to Ark. Stat. Ann. § 41-1001 (Repl. 1977).

Clinkscale waived a jury trial and was convicted. There is no argument raised regarding his guilt.

During the sentencing procedure the State moved to introduce previous convictions. The defense objected and the State moved to allow its amended information alleging four or more previous convictions to stand. The request was not granted; neither party asked for a continuance.

Counsel for the State and the defense presented arguments on this issue to the court. The State named the five prior convictions and argued that it had a right to present this evidence because it had alleged “two or more” prior convictions. The trial judge inquired as to the possibility of a sentence. It was determined that with two prior convictions the sentence could be from three to 15 years. Then, the court stated:

THE COURT:
For the record, I’m only taking into consideration the two priors that were contained in the information. And that still gives a possible sentence of three to fifteen, the way I understand it. I’m only going to sentence him to ten years. . . .
However, just before the remark, the judge had said:
THE COURT:
It will be the judgment of the Court, Mr. Clinkscale, that you be sentenced to the Arkansas Department of Correction for a period of ten years, this time to be consecutive to the time that you are serving under your present sentence. That probably means, Mr. Clinkscale, an additional — With your record, it would probably mean an additional five or six years.
Mr. Clinkscale, there’s one thing — and I think I speak for any other Judge that’s sitting here. It’s one thing to have one offense for stealing and maybe even two but the idea since 1970 you have all these — [Emphasis added.]

Just after the “For the record” statement, the judge remarked:

The people of this community are entitled to be safe in their stores and in their homes without having somebody be a perpetual crime wave walking around here stealing every time he gets out of prison.

There is no doubt the judge considered the other convictions, which were pressed upon him by the attorney for the State; the judge’s remarks are evidence that he considered those convictions.

There is nothing at all to the State’s argument that because an information alleges two or more convictions, more than two can be admitted against a criminal defendant. Allegations of prior convictions are just like essential elements of a crime, only those that are alleged can be used. Finch v. State, 262 Ark. 313, 556 S.W. 2d 434 (1977).

The question then becomes, did the trial judge’s consideration of other convictions prejudice Clinkscale? The State argues there was no prejudice because the court was sitting without a jury and made the statement that only two convictions were considered “For the record.”

We dealt with this question in Mason v. Morel, 234 Ark. 660, 354 S.W. 2d (1962), and Hickey v. State, 263 Ark. 809, 569 S.W. 2d 64 (1978). In Hickey, on denial of rehearing, it was pointed out that while there is a presumption the trial judge will only consider competent evidence, it can be overcome when there is an indication that the trial judge did give some consideration to the inadmissible evidence.

That is precisely the case we have, an indication that the judge gave some consideration to improper evidence. Therefore, we have no alternative but to find that Clinkscale was prejudiced. Therefore, the judgment is reversed and the cause remanded.

Reversed and remanded.

Stroud, J., dissents.

Mays, J., not participating.

John F. Stroud,

dissenting. I do not think the remarks of the trial judge constituted error because I disagree with the majority in its holding that an allegation of “two or more” prior felonies precludes the introduction of more than two prior felonies at the sentencing stage of the trial. Finch v. State, 262 Ark. 313, 556 S.W. 2d 434 (1977), relied upon by the majority, is not controlling here. In that case no allegation was made that there were any prior convictions or that the State would seek an enhancement of sentence, and it was not until after the trial had started that the State sought to amend its information and allege that the accused was an habitual offender. This court properly reversed the lower court for refusing to grant the requested continuance. In Finch, supra, the court held that the information must allege that the accused is an habitual offender and said:

The purpose of this requirement is to afford appellant notice of essential elements upon which the state relies for assessment of punishment and to give him the opportunity to refute such assertions.

In this case, appellant was advised six months before trial that the State would seek to prove two or more prior convictions to enhance his sentence if convicted. Certainly appellant knew better than anyone else how many times he had been convicted of a felony, but if he wanted to know if the State knew of all five of his prior convictions, he could easily have found out by filing a Bill of Particulars. I think the allegation of “two or more” prior felonies made six months before trial was sufficient notice to appellant to allow the State to attempt to prove the five alleged prior felony convictions. I would affirm the conviction.


author: John I. Purtlb, Justice.

text:
    Martha Jean LANGSTON et al v. Chester HUNT, Administrator
    80-114
    601 S.W. 2d 833
    Supreme Court of Arkansas
    Opinion delivered June 23, 1980

      John Robert Graves and William Randal Wright, of Graves & Graves, and Hillary Rodham and Ken Shemin, of Rose Law Firm, for appellants.

      James H. Pilkinton, Jr., for appellee.
   John I. Purtlb, Justice.

The Hempstead Probate Court interpreted the Second Item in testator’s will to convey a fee simple absolute to the widow voiding the Third Item of the will which attempted to divide the remainder of the estate to other persons upon the death of the widow. The heirs of the testator appeal.

On appeal it is argued that the Second Item did not convey or invest a fee simple in the widow, and the court erred in so holding. We agree with the trial court’s interpretation that the Second Item devised a complete estate to the widow.

The testator’s will was prepared on June 14, 1936, when he and his wife had no children; and, following his death on May 29, 1977, it was admitted to probate on June 7, 1977. The final order of distribution was made at the time the testator’s estate was closed on November 1, 1978. The order vested the entire estate in the surviving widow who died intestate on December 8, 1978. Her estate is involved in this appeal to the extent that the heirs of her husband claim half of the estate through the will of the testator.

The matter to be considered on appeal is a clear one. We must decide whether the Second Item of the will conveyed a fee simple to the widow or whether at her death the heirs of the decedent took the remainder according to the terms of the Third Item in testator’s will. The pertinent parts of the will are as follows:

FIRST
* # #
SECOND
I give to my beloved wife, Ethel Deliah Jones, all of my property, both real and personal, of every kind and character, wherever situated.
THIRD
At the death of my said wife, Ethel Deliah Jones, I desire that all of my property of which she dies seized of shall be divided among her nearest relatives and my nearest relatives, share and share alike. In other words, it is my desire that my wife’s nearest relatives and my nearest relatives share half and half in said estate, unless we should have children at the time of her death, in which event, the entire property, both real and personal, of every kind and character, wherever 'situated, is to be left to our children, share and share alike.
FOURTH

At the conclusion of the trial, the probate court found the Second Item was controlling because it devised a fee simple to the widow which defeated the request or intention of the testator to devise the remainder of the estate to a class of people upon the death of the widow. The court correctly cited several of our prior cases in support of the decree. The probate court invited this Court to reexamine our position of looking at the entire testamentary document with the purpose of giving effect to the reasonable and logical intent of the testator.

Our interpretation of wills has employed the rule of property used by the trial court since Bernstein v. Bramble, 81 Ark. 840, 99 S.W. 682 (1907). A rule of property so long in use has surely come to the attention of the General Assembly, arid we assume meets with its approval. The mischief which would be caused by a sudden change in this position would no doubt be great. Without question, there are thousands of wills now in existence prepared in reliance upon the present rule.

The present rule simply stated is that a testator cannot give an estate in fee simple by clear and concise language and subsequently diminish or destroy the devise by use of other language. In other words, once the fee is given to a person or class of persons or other devisee, it cannot be thereafter taken away or diminished unless the terms are clear, unequivocal, and demonstrate the intent to limit the prior devise. Some cases supporting this well-established rule of property are Bernstein v. Bramble, supra; Baum v. Fox, 192 Ark. 406, 91 S.W. 2d 601 (1936); Collie v. Tucker, 229 Ark. 606, 317 S.W. 2d 137 (1958); and Ahrens v. McNutt, 250 Ark. 941, 467 S.W. 2d 721 (1971).

We can think of no good reason why a testator would not clearly limit the first devise if it were intended to convey less than a complete estate. It is as easy and simple to place limiting words in the first devise as it is to include words conveying a complete interest. We think it is a reasonable rule to prevent a person from giving a complete estate in one paragraph and diminish or revoke it in a second paragraph. We have held that when an estate is granted in fee, it is complete and undefeatable unless subsequent language clearly establishes it was the purpose and intent of the testator in the first grant to make it subject to the later limitations. Ollar v. Roy, 212 Ark. 682, 207 S.W. 2d 313 (1948).

We construe the language in the Second Item in the testator’s will to devise to the widow a fee simple absolute The Third Item cannot be said to be clear and unequivocal enough to indicate the intent to impose a limiting effect on the Second Item. The Third Item also appears to express a desire that the remainder of the estate, at the time of the death of the widow, be given to the enumerated class of persons.

We have reexamined our holdings in such cases and believe the reasoning is sound. We do not choose to depart from or overrule it.

Affirmed.


author: John I. Purtle, Justice.

text:
    STATE of Arkansas v. Paul RUIZ and Earl VAN DENTON
    CR-80-10
    602 S.W. 2d 625
    Supreme Court of Arkansas
    Opinion delivered June 23, 1980
    Rehearing denied August 25, 1980

      Steve Clark, Atty. Gen., by:Joseph H. Purvis, Deputy Atty. Gen., for appellant.

      Lessenberry & Carpenter, by: Thomas M. Carpenter, for appellees.
   John I. Purtle, Justice.

The style of this case may be misleading because it involves only the attorneys’ fee portion of the second trial of Ruiz and Denton. This opinion does not attempt to reach any part of the trial in chief on its merits.

After the second Ruiz and Denton trial was completed the attorneys, Ike Laws, Joseph Cambiano and Thomas M. Carpenter, petitioned the court for appropriate attorneys’ fees. The fees were to be paid by Logan County, even though the trial was held in Conway County on change of venue.

The trial court considered the claim for attorneys’ fees on the merits of the claims by the respective attorneys. The trial court held that Ark. Stat. Ann. § 43-2419 (Repl. 1977) violated Art. 4 § 2 of the Arkansas Constitution. The court took into consideration all the factors which determine reasonable attorney’s fee. We do not consider the reasonableness of the fees awarded to the attorneys in this case. All three of the attorneys are capable and respected. The question is whether the fees were legally awarded.

Ark. Stat. Ann. § 43-2419 (Repl. 1977) states in part as follows:

Whenever legal counsel is appointed by the court of this State to represent indigent persons accused of crimes, whether misdemeanors or felonies, such court shall determine the amount of the fee to be paid the attorney and an amount for a reasonable and adequate investigation of the charges made against the indigent and issue an order for the payment thereof. The amount allowed for investigation expense shall not exceed One Hundred Dollars ($100.00) and the amount of the attorney’s fee shall not be less than Twenty-Five Dollars ($25.00) nor more than Three Hundred and Fifty Dollars ($350.00), based upon the experience of the attorney and the time and effort devoted by him in the preparation and trial of the indigent, commensurate with fees paid other attorneys in the community for similar services.

Let is be said now that there is no question that the present statute, as we interpret it, does not allow for adequate compensation of competent appointed attorneys in many cases. Who then should pay for these services? Should it be the state, the county, or the attorneys? These are the only sources of payment in cases of indigents who have the constitutional right to be represented by counsel, but have no means for payment of the fees.

At Common law there were no provisions for payment for those attorneys appointed to defend indigents. Neither the state nor the federal constitutions make provisions for payment of attorneys in such cases. The General Assembly has enacted the foregoing statute which will adequately pay attorneys for trials lasting no more than one day. The monetary limits are expressly stated in the statute to be between $25 and $350 even though other language in the statute implies that the attorneys should be paid a fee commensurate with fees paid other attorneys in the community for similar services. The acts of the legislature carry strong presumption of constitutionality. Jones et al v. Mean et al, 256 Ark. 825, 510 S.W. 2d 857 (1974); Pulaski Co. ex rel Mears v. Adkisson, Judge, 262 Ark. 636, 560 S.W. 2d 222 (1978). If it is possible to construe an act to be constitutional, we must do so. Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634 (1973). We have dealt with a question very closely related to this in Mears v. Adkisson, supra, at 638, where we stated:

We hold this order was entered without judicial authority because it determines and orders payments of salaries and expenses for the Public Defender’s office. Such action is a legislative and not a judicial function. The order . .. which authorizes the circuit court to set salaries_ are in violation of the separation of powers doctrine of the Arkansas Constitution, Ark. Const. Art. 4, § 2.

The above quotation was from a decision where we held the circuit judges did not have the authority to set the salaries of public defenders. Public defenders are full-time appointed attorneys to defend indigents; therefore, if the courts had no power to set salaries for full-time public defenders, they do not have the power to set salaries for part-time public defenders.

The last sentence in the oath of one who is admitted to practice law in Arkansas reads:

I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any man’s cause for lucre or malice. SO HELP ME GOD.

It would appear then that each of these attorneys took an oath which would require them to perform the services in this case without any money if necessary. The practice of representing indigents for little or no fee dates back many centuries prior to the establishment of a government in the United States. In the present case the trial court, in appointing the attorneys to defend these indigents, was merely requiring the lawyers to perform an obligation which they had sworn to perform upon their entry into the legal profession.

It has been argued in another case that requiring an attorney to furnish services for little or no fee is a taking of property in violation of the due process clause of the United States Constitution. This argument was rejected in the case of United States v. Dillon, 246 F. 2d 633 (9th Cir. 1965) cert. denied, 382 U.S. 978 (1966). Finding no common law or statutory or constitutional authority establishing payment of attorney’s fees, we are left only with the sources provided by the legislature. The only other source is the services being furnished by the attorneys themselves. Lawyers clearly have an obligation to represent indigents upon court orders and to do so for existing statutory compensation or for no remuneration at all.

We do not imply that the present statutory allowances even come close to providing adequate compensation for the services performed in this case. However, this question of adequate compensation is not a matter to be addressed by the court but is within the province of the legislature. It is obvious that most counties are unable to pay the type of fee required in such cases. The counties did not do anything to incur the obligation; and, no doubt, every county would prefer that if a crime is to be committed that it be done elsewhere. It would appear logical that the state owes an obligation to pay under circumstances such as presented here; however, this is a matter which must be left to the sound discretion of the General Assembly.

Although there are no requirements relating to the residences of appointed counsel, it would seem to be preferable that the court appoint competent attorneys within its jurisdiction or those attorneys who regularly practice before the court.

We hold that the trial court was bound by the provisions of the legislature and that each of the attorneys in the present case cannot receive more than $350 each for their services plus $100 each for investigation expense, and in doing so we necessarily hold Ark. Stat. Ann. § 43-2419 to be constitutional.

Reversed and remanded with directions to proceed in a manner consistent with the opinion rendered herein.

Reversed and remanded.


author: John F. Stroud, Justice.

text:
    SHARP COUNTY, Arkansas v. NORTHEAST ARKANSAS PLANNING AND CONSULTING COMPANY
    80-75
    602 S.W. 2d 627
    Supreme Court of Arkansas
    Opinion delivered June 23, 1980
    Rehearing denied August 25, 1980

      Jim Stallcup, Prosecuting Attorney; Stewart K. Lambert, Deputy Pros. Atty., and Paul E. Hopper, for appellant.

      William R. Hass, Thayer, Mo., and H. David Blair, for appellee.
   John F. Stroud, Justice.

This is a suit to determine the enforceability of an agreement made by the county judge of Sharp County with a professional consulting firm to obtain federal funds for the county. We agree with the finding of the trial court awarding judgment to appellee under the terms of their contigent fee arrangement.

In 1975 appellee and Sharp County Judge Les Anderson entered into an agreement whereby appellee would prepare and submit a preapplication and “do other things that might be required” to qualify appellant for funds under Title I of the Housing and Community Development Act of 1974. The agreement was embodied in an order of the court dated February 9, 1975, which also provided that appellee’s compensation for these services was conditioned upon appellant’s receipt of the funds sought. The order further provided that appellee was to receive $750 or 10% of the total grant, whichever was larger. In September of 1976, appellant received $150,000 in Community Development Block Grant funds to construct a solid waste disposal facility and other local projects as a result of appellee’s efforts. On August 1, 1977, appellee filed a claim with appellant for $15,000 for services rendered in connection with the grant, but later that month the County Court of Sharp County denied the claim. On January 25, 1978, the Sharp County Circuit Court entered an order allowing appellee’s appeal from that decision, whereupon the matter was submitted to the circuit judge, sitting as a jury, and tried upon an agreed statement of facts together with the pleadings and briefs of the parties. On August 21, 1979, the trial court issued a judgment for $15,000 plus accrued interest in favor of appellee. Appellant subsequently filed a motion for a new trial, and this was denied by the trial court. Alleging that the finding of the trial court was clearly erroneous and that the trial court erred in denying its motion for a new trial, appellant brings this appeal.

The agreement sued upon, as evidenced by the county court order, provided, in pertinent part, as follows:

It is therefore ordered that Sharp County, Arkansas, employ the Northeast Arkansas Planning and Consulting Company of Paragould, Arkansas, to prepare a preapplication for Federal Assistance under Title I of the Housing and Development Act of 1974. It is further ordered that Sharp County shall pay a minimum fee of Seven Hundred Fifty Dollars ($750.00) or 10% of the total grant, whichever is larger for the work necessary in completing the application and requirements under said Act. It is further ordered that this employment is on the contingent basis of receiving the Community Development Block Grant Funds.

The parties stipulated that appellee conducted hearings, studies and other matters necessary in connection with the preparation of the pre-application and full application and that Sharp County received the $150,000 grant as a result of appellee’s efforts. However, appellant contended at trial that appellee was not entitled to any compensation for its services inasmuch as the county court order of February 9, 1975, was not filed in the record book. The trial court pointed out in its written findings of fact that the order was not entered because the county judge kept it from being entered. The entry of a court order is a ministerial act, and the failure to file such order in the record book does not void the order as it can be subsequently filed. American Investment Co. v. Hill, 173 Ark. 468, 292 S.W. 675 (1927). Appellant raised other arguments at trial which were addressed by specific findings of the court, but inasmuch as they are not argued by appellant on appeal, we will not discuss them here. The trial court also found that appellant should be estopped from denying the claim of appellee. We agree that appellant cannot remain mute for a year while appellee furnishes its services and then upon receipt of the fruits of the service, repudiate the contract on the basis of the county judge having withheld, unbeknownst to appellee, the filing of the court order of record. Pursuant to Rule 52 of the Arkansas Rules of Civil Procedure, we will not reverse a trial court’s findings of fact unless they are clearly erroneous, and we do not find them to be clearly erroneous in this case.

Appellant also contends the trial court erred in denying its motion for a new trial. After the trial court ruled in favor of appellee, appellant changed tactics and filed a motion for a new trial with numerous exhibits attached, including copies of the pre-application, applicable federal standards and correspondence between the parties. Based on the exhibits attached to appellant’s motion for a new trial, appellant argues in its brief on this appeal that appellee was not entitled to the full $15,000 because that was the total amount of the funds that could be spent on procurement and administration of the grant. Appellant points out that appellee had done nothing towards administering the funds and that they are being administered by another company under a separate contract. This argument fails for two reasons. First, the fact that the federal act governing the grant may indicate that no more than 10% of the grant funds may be spent on compensation for procurement and administration of the grant does not prevent appellant from promising the procurer the full 10% and paying the administrator of the grant from some source of revenue other than the grant funds. Second, and most important, appellant failed to present this argument until after filing its motion for a new trial. Perhaps this was a result of certain trial tactics relied upon by appellant, but whatever the reason, the evidence urged in support of this argument was not before the trial court originally and was, therefore, not considered in its findings of fact. A motion for new trial con-not be used to bring into the record that which does not otherwise appear of record. McDaniel v. State, 228 Ark. 1122, 313 S.W. 2d 77 (1958); Hyde v. State, 212 Ark. 612, 206 S.W. 2d 739 (1947). Appellant claimed this evidence was proper in its motion under Arkansas Rules of Civil Procedure, Rule 59(a) which provides, in part:

(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party:
(5) error in the assessment of the amount of recovery, whether too large or too small;
(6) the verdict or decision is contrary to the preponderance of the evidence or is contrary to the law.

We think Rule 59(a) (5) is of no benefit to appellant inasmuch as appellant contended at trial that appellee was due nothing for its services. Rule 59(a) (6) also afford no relief, as the evidence offered was not before the court at trial and, therefore, could not have been considered by the trial court. The only basis for introduction of the evidence after trial would have been that it was newly discovered and could not with reasonable diligence have been produced at trial. However, Rule 59(c) requires the motion for new trial to be supported by an affidavit showing the truth of that allegation, and obviously appellant could not make such statement under oath. A motion for new trial is addressed to the sound discretion of the court and the trial court’s refusal to grant it will not be reversed on appeal unless an abuse of discretion is shown. Smith v. Villarreal, 253 Ark. 482, 486 S.W. 2d 671 (1972); Black v. Johnson, 252 Ark. 889, 481 S.W. 2d 701 (1972). We find that the trial court’s denial of appellant’s motion for new trial was not an abuse of its discretion.

Affirmed.

       We take this opportunity to comment on the statement of appellee in its brief that adoption of Rule 52 amounted to a partial merger of law and equity. Such is not the case. The rule merely established the same standard of "clearly erroneous" for appellate review of findings of fact made by a chancellor and a circuit judge sitting as a jury.


author: John F. Stroud, Justice. John A. Fogleman, Chief Justice,

text:
    Eddie Lee MILLER v. STATE of Arkansas
    CR 79-80
    605 S.W. 2d 430
    Supreme Court of Arkansas
    Substituted Opinion on Rehearing delivered October 6, 1980

      Bill E. Ross, for appellant.

      Steve Clark, Atty. Gen., by:Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   John F. Stroud, Justice.

Appellant was convicted of capital murder in the robbery and killing on November 3, 1978, of W. F. Bolin, a Blytheville shopkeeper, and sentenced to death by electrocution. Alleging numerous constitutional and procedural irregularities as points for reversal, appellant brings this appeal. Finding no error, we affirm the conviction and the sentence of the jury.

POINT I
THE COURT ERRED IN FAILURE TO GRANT APPELLANT’S MOTION TO SUPPRESS EVIDENCE SEIZED UNDER THE AUTHORITY OF A SEARCH WARRANT.

Appellant contends there was not probable cause to justify the issuance of the search warrant and any evidence seized pursuant to it should have been suppressed. The Blytheville Chief of Police, R. J. Cox, contacted Judge A. S. Harrison in Jonesboro during the evening of November 3 and presented the judge with his affidavit and testimony tending to support the issuance of the search warrant for the home and automobile of appellant. Appellant had been arrested earlier that day pursuant to an arrest warrant, the validity of which was not challenged by appellant. When the officers went to appellant’s house shortly after the killing with a warrant for his arrest, they were unable to gain entrance. Appellant’s wife was next door and she finally admitted that appellant was in the house, but she said her keys were locked up in the house. As the officers were unable to elicit a response from appellant, they forced open the front door. Appellant was hiding in the attic, but came down and was taken into custody. Chief of Police Cox stated in his affidavit for a search warrant that the circumstances led him to believe that appellant had concealed the murder weapon and money in the attic where he had been hiding immediately prior to his arrest. The affidavit recited the robbery and murder of W. F Bolin earlier that day, the forced entry of the residence pursuant to the arrest warrant, the surrender of appellant from the attic without an officer making entry into the attic, and the discovery of a sawed-off shotgun in plain view in the house. Appellant argues that the affidavit contains conclusions of the police chief rather than facts upon which the judge could make an independent determination of reasonableness. An affidavit for a search warrant must contain affirmativeness allegations of fact, not mere affirmations of suspicion, from which the judge may independently decide for himself whether there is probable cause for the search. Ferguson v. State, 249 Ark. 38, 458 S.W. 2d 383 (1970). The judge must not merely accept without question the conclusions of the officer. Walton & Fuller v. State, 245 Ark. 84, 431 S.W. 2d 462 (1968). But the affidavits for search warrants must be tested and interpreted by courts in a commonsense and realistic fashion. United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976).

Both Chief of Police Cox and Judge Plarrison were entitled to rely on the validity of the warrant of arrest, as the warrant was valid on its face and the attorney for appellant did not challenge its validity. We also find that Judge Harrison had sufficient information from the affidavit and sworn testimony upon which to base his finding that there was reasonable cause to believe the evidence sought would be found in appellant’s house or automobile. Appellant urges that the search warrant was illegally issued because Judge Harrison considered information other than that contained in the affidavit and sworn testimony. However, a reading of the transcript clearly indicates although he did receive other information concerning the urgent need for a nighttime search, his determination of probable cause for issuance of the search warrant was based only on the affidavit and the sworn testimony.

Appellant also contends that the warrant should not have been issued for nighttime hours. Rule 13.2(c) of the Arkansas Rules of Criminal Procedure provides that search warrants shall be executed between 6:00 a.m. and 8:00 p.m. except for stated exceptions. One of the exceptions is when the objects to be seized are in danger of imminent removal. Rule 13.2(c) (ii). The officers were so concerned, following the arrest of appellant, that his wife would dispose of the murder weapon and hide the stolen money that they left officers at the home for several hours awaiting the search warrant. Inasmuch as the officers would likely have been justified in searching the attic incident to the arrest without a search warrant pursuant to Rule 12.5, we think they demonstrated commendable restraint in deferring the attic search until the search warrant issued. There was ample evidence of imminent removal of the objects of the search to warrant Judge Harrison to authorize a nighttime search. It is also rather ridiculous to suggest that the officers should have continued to watch the entrance to the attic until 6:00 a.m. so a daylight search could be made.

POINT II
THE TRIAL COURT ERRED IN NOT EXCLUDING STATEMENTS ALLEGED TO HAVE BEEN OBTAINED FROM APPELLANT AFTER CONFRONTATION WITH EVIDENCE OBTAINED BY AN UNLAWFUL SEARCH AND SEIZURE.

Appellant bases this argument solely on the “fruit of the poisonous tree” doctrine set out in Wong Sun v. U.S., 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), where evidence obtained as a result of earlier unlawful acts was held to be “tainted” by the previous illegality and, therefore, inadmissible. However, as we have previously upheld the search of appellant’s house, this argument must fall. Since the tree was not “poisonous,” neither was the fruit.

POINT III
THE COURT ERRED IN NOT SUSTAINING THE OBJECTION TO THE ARGUMENT OF THE DEPUTY PROSECUTING ATTORNEY IN THE CLOSING OF THE PENALTY STAGE OF THE APPELLANT’S TRIAL.

Appellant’s point for error is due to the following argument of the Deputy Prosecuting Attorney in the closing of the penalty stage of appellant’s trial:

I don’t think that you can lay down at night, sleep knowing that you have allowed this man to live with the possibility of escaping again. He has already escaped once. He is an escapist.
Ladies and gentlemen, I don’t mean to create fear in you, but if you did do that, sentence him to life imprisonment with his having escaped once already and plan on holding him in any institution, I don’t care what kind of institution it is, any institution for forty years or better, you are taking a terrific risk.

Appellant’s counsel did not request the court to admonish the jury concerning these remarks. He did move for a mistrial based on them, but this motion was denied by the trial court. Appellant contends that the only logical inference that can be drawn from the statements is that the deputy prosecutor was telling the members of the jury that their lives would be in danger unless they sentenced appellant to death. However, the deputy prosecutor went on to explain that he was interrupted and that he was about to explain that the risk would be to members of society in general, not to the members of the jury. The trial court accepted this explanation, and, as noted, denied appellant’s motion for mistrial. We will not reverse the action of the trial court in matter pertaining to its controlling, supervising, and determining the propriety of the arguments of counsel in the absence of manifest gross abuse. Rowland v. State, 263 Ark. 77, 562 S.W. 2d 590 (1978); Perry v. State, 255 Ark. 378, 500 S.W. 2d 387 (1973).

Had appellant’s counsel requested the court to admonish the jury, the question of refusal would have been presented, but the failure to give an admonitory instruction is not prejudicial error in the absence of a request. Petron v. State, 252 Ark. 945, 481 S.W. 2d 722 (1972); Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225 (1969). Prior to the closing arguments, the court had given the jury an instruction that “closing arguments of the attorney are not evidence” and that “remarks of attorneys having no basis in the evidence should be disregarded by you.” We find no' abuse of discretion by the trial court in denying appellant’s motion for a mistrial. A mistrial is an extreme and drastic remedy which should be resorted to only when there has been an error so prejudicial that justice could not be served by continuing the trial. Limber v. State, 264 Ark. 479, 572 S.W. 2d 402 (1978);Holmes v. State, 262 Ark. 683, 561 S.W. 2d 56 (1978).

POINT IV
THE COURT ERRED IN ALLOWING THE JUDGMENTS OF CONVICTION REFLECTING A NON EXISTING CRIME AT THE TIME OF THE OCCURRENCE TO BE INTRODUCED BY THE STATE AS AGGRAVATING CIRCUMSTANCES.

In 1971 appellant had pleaded guilty to several charges of “armed robbery” and these convictions were brought out by the State on cross-examination of appellant, who freely admitted the convictions. Appellant now asserts that since there was no crime technically labeled “armed robbery” when he pleaded guilty to those charges in 1971, the State should not be able to introduce the judgments of conviction as aggravating circumstances in the penalty stage of the present case. Also, appellant maintains that since the convictions were brought out during the guilt/innocence phase of his trial, they should not be brought out again in the penalty phase because this would be cumulative and repetitious and solely for the purpose of inflaming the jury. Appellant is mistaken on b.oth of these contentions. The time to challenge the technical accuracy of the judgments of conviction for “armed robbery” would have been in 1971, not in 1978. It is also difficult to imagine that appellant would have pled guilty to “armed robbery” if he had not used a weapon during the perpetration of the robbery. Further, the fact that appellant hads previously admitted the convictions on cross-examination removed any possible prejudice from the State’s later introduction of them during the penalty phase of the trial.

POINT V
THE TRIAL COURT ERRED IN DISMISSING CERTAIN VENIREMEN AS PROSPECTIVE JURORS BECAUSE OF THEIR ATTITUDE TOWARD CAPITAL PUNISHMENT.

Appellant contends that several prospective jurors who had general objections to the death penalty were wrongly excluded from the jury in violation of the rule laid down in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). That rule provides, in essence, that unless a prospective juror clearly states that he would automatically vote against the imposition of the dealth penalty, regardless of the evidence adduced during the trial, he cannot be excused from the jury for cause.

It is no easy task for the trial court to ascertain which jurors are irrevocably opposed to the death penalty and which merely have religious or conscientious scruples in opposition to it. There are no magic words. It is not the phrasing of the questions or answers used in this area that is important; rather, it is the basic viewpoint of each juror on the possible imposition of the death penalty that is critical. The trial court must ascertain that each member of the jury will be open-minded at the outset of the trial and able to consider all the alternatives authorized by law. After reviewing the record of the voir dire of those prospective jurors excused due to their opposition to the death penalty, we are satisfied that these jurors were so irrevocably opposed to capital punishment that the trial court was not wrong in excluding them for that reason.

Appellant next contends that the “death qualification” of a juror is unconstitutional in that it results in a jury which is biased in favor of the prosecution, thus violating the Sixth and Fourteenth Amendments to the United States Constitution. As no proffer of evidence was made to support this contention, we think the treatment of this same contention was appropriately answered in Witherspoon v. Illinois, supra:

We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.

Appellant also contends that he was denied a fair trial due to the exclusion of many prospective jurors who were black. Appellant points out that of the 31 blacks on the jury panel, 28 were excluded for one reason or another. He argues that this fact clearly indicates that blacks were systematically excluded from the jury. Ten blacks were struck by the State in the exercise of its peremptory challenges, but it is interesting to note that appellant exercised all of his peremptory challenges to strike potential white jurors. The other blacks excluded were either excused by the court or challenged for cause. Eventually, a jury of nine whites and three blacks was seated and heard the case. There is no evidence here that any class of persons was deliberately and systematically excluded from the jury panel. Although appellant severely criticizes the use of the peremptory challenges by the prosecuting attorney, we have previously held that the mere fact that the state challenged all the blacks on the jury panel does not constitute a showing that his constitutional rights were violated. Rogers v. State, 257 Ark. 144, 515 S.W. 2d 79 (1974). The trial court has broad discretion in the conduct of a trial. We find no error on the part of the trial court in its supervision of the jury selection and no violation of appellant’s constitutional rights in the make-up of that jury.

POINT VI
IT IS A VIOLATION OF APPELLANT’S CONSTITUTIONAL RIGHTS TO LEAVE THE ABSOLUTE DISCRETION IN THE PROSECUTING ATTORNEY TO DECIDE WHO TO FILE CAPITAL MURDER CHARGES ON AND WHETHER OR NOT TO WAIVE THE DEATH PENALTY AFTER GUILT-INNOCENCE STAGE IS CONCLUDED.

Appellant contends that leaving absolute discretion in the prosecuting attorney to file capital murder charges is a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. We summarily rejected this argument, or one very similar to it, in Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977), cert. den. 434 U.S. 894 (1977). The United States Supreme Court has expressed its position on this question on several occasions. We think the following statement, in Borkenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 54 L. Ed. 2d 604, 611 (1978), is sufficiently clear on this question:

In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Within the limits set by the legislature’s constitutionally valid definition of chargeable offenses, ‘the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation’ so long as ‘the selection was [not] deliberatély based upon an unjustifiable standard such .as race, religion, or other arbitrary classification.’
POINT VII
THERE WAS AN UNCONSTITUTIONAL EXCLUSION OF VENIREMEN FROM THE JURY PANEL.

Appellant alleges that the trial court erred in excusing several venirement from jury service at the outset of voir dire. After reviewing the reasons expressed by the 24 persons excused, we find no abuse of discretion by the trial court. There was no deliberate exclusion of a large class of eligible jurors as was true in Hall v. State, 259 Ark. 815, 537 S.W. 2d 155 (1976), where all farmers were excused. Here the court acted reasonably to excuse persons only “when the state of his health or that of his family reasonably requires his absence; or when, for any reason, his own interests or those of the public will, in the opinion of the Court be materially injured by his attendance.” Ark. Stat. Ann. § 39-107 (Supp. 1979).

POINT VIII
ARKANSAS CAPITAL MURDER STATUTES ARE UNCONSTITUTIONAL AS VIOLATIVE OF APPELLANT’S RIGHTS UNDER EIGHTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLE 2, SEC. 9, OF THE CONSTITUTION OF ARKANSAS.

We have repeatedly rejected this same argument and upheld the constitutionality of our capital murder statutes. Swindler v. State, 267 Ark. 418, 592 S.W. 2d 91 (1979); Pickens v. State, 261 Ark. 756, 551 S.W. 2d 212 (1977), cert. den. 435 U.S. 909 (1978); Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977), cert. den. 434 U.S. 878 (1977). Accordingly, we find no merit to appellant’s contentions.

POINT IX
PROPER LAW AND PROCEDURE WAS NOT FOLLOWED IN THE PENALTY STAGE OF APPELLANT’S TRIAL.

Appellant contends that the penalty phase of his trial .was not properly conducted pursuant to Ark. Stat. Ann. § 41-1301 — 1304 (Repl. 1977). The first of these statutes provides for a bifurcated trial of persons charged with capital murder. If the defendant is found guilty of capital murder, the same jury sits again to hear additional evidence of aggravating and mitigating circumstances before determining sentence. Ark. Stat. Ann. § 41-1303 sets out seven possible aggravating circumstances to be considered by the jury and § 41-1304 enumerates six possible mitigating circumstances. The jury were properly provided a form to indicate their findings in regard to each of the possible aggravating circumstances and a separate form of the mitigating circumstances. They found four of the seven statutory aggravating circumstances applicable to the appellant in this case:

I. The defendant had, beyond a reasonable doubt, previously committed another felony an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person.
II. The defendant did, beyond a reasonable doubt, in the commission of the capital felony murder knowingly create a great risk of death to a person other than the victim.
III. The defendant did, beyond a reasonable doubt, commit the capital felony murder for the purpose of avoiding or preventing an arrest or effecting an escape from custody.
IV. The defendant did, beyond a reasonable doubt, commit the capital felony murder for pecuniary gain.

The aggravating and mitigating circumstances to be considered by the jury in all applicable cases are set out in the statute, and are therefore not worded or tailored to fit the particular facts of the case just tried. As the statute does not indicate otherwise, the circuit judges of the state have been submitting to the jury in capital murder cases all seven of the enumerated aggravating circumstances and all six of the enumerated mitigating circumstances, regardless of the inapplicability of some of them. Ark. Stat. Ann. § 41-1303 (Repl. 1977). The practice was perhaps also bolstered by our Committee on Criminal Jury Instructions, because none of the aggravating or mitigating circumstances are bracketed in the model instruction, to indicate they might be omitted. We think it a better practice, and less confusing to the jury, for the circuit judge to omit from submission any aggravating or mitigating circumstances that are completely unsupported by any evidence, and we take this opportunity to direct the circuit judges of Arkansas to hereafter allow this alternate procedure. If there is any evidence of the aggravating or mitigating circumstances, however slight, the matter should be submitted to the jury. Of course, counsel may object to the determination of the trial court the same as they may object to any other form of verdict.

In this case, there were in the jury room twelve average citizens, not trained in the law, who were required to say whether or not each of seven rigidly described aggravating circumstances existed. The jurors answered the questions, unanimously, as best they could. One of the reasons these statutes were enacted was to give this court an insight to the thought process of the jury so that we can compare the circumstances of cases involving the death sentence in our effort to avoid any arbitrary and unconstitutional application of the sentence. We do not consider the jury’s findings as separate little verdicts, and we do not require- the same degree of proof to sustain a jury finding that an aggravating or mitigating circumstance exists as we would require to sustain a conviction if that circumstance was a separate crime.

It is a matter of judgment whether the facts support the findings of the jury of aggravating and mitigating circumstances, but we will not substitute our judgment for the judgment of the jury that heard the evidence if there is a reasonable and understandable application of the facts to the statutory circumstances. The basic issue- is whether, on the evidence, the jurors could sincerely and honestly have made the finding as they understood the question. If their answer to a question had been wholly arbitrary, a different problem would confront us. But here their answers were not arbitrary. We have before us a record of all the evidence presented to the jury to help us decide whether this jury acted capriciously in imposing the death sentence. We can put ourselves in the jurors’ position and understand what they meant by answering the interrogatories as they did. That we might have interpreted an interrogatory differently does not require us to set aside a death sentence that was deliberately and conscientiously agreed upon by the persons who had the advantage of hearing the testimony as it was given.

Appellant’s objection to the first aggravating circumstance found by the jury was covered in appellant’s Point IV and we, therefore, here cover only the other three findings. The testimony relevant to a finding that appellant knowingly created a great risk of death to a person other than the victim was the testimony of Jim Hudson. Mr. Hudson, whose business was next to that of the deceased, testified that after hearing several shots and his neighbor’s voice say “No, no!” followed by more shots, he entered the victim’s premises and came face to face with appellant. He testified appellant said, “You get in here,” but instead he backed out of the door and stood outside hiding and shaking until he saw appellant exit with a gun in his hand a run up the alley. The jury could reasonably have found that appellant knowingly created a great risk of death to Mr. Hudson when he tried to get him inside the store. Having just murdered one man, it is not difficult to believe that appellant would have just as easily dispatched of Mr. Hudson to avoid leaving a witness to identify him.

The evidence presented on the question of whether or not appellant killed the deceased for the purpose of avoiding arrest primarily consists of certain relevant portions of his confession. It is obvious from the jury’s finding that they believed appellant shot Bolin to remove him as a possible witness. They did not interpret the aggravating circumstance to be applicáble only to capital felony murder committed by a defendant while he is attempting to escape from custody — an interpretation we cannot say is erroneous. Appellant stated that immediately prior to the shooting, thoughts of being identified by the deceased man ran through his mind. Although the remainder of this passage is somewhat hard to follow, it is inescapable that appellant was concerned about being identified by the deceased. Appellant stated in his confession that the deceased reached for an iron pipe and that was why he shot him, but investigation at the scene uncovered no iron pipe or any similar object. The jury could also take into consideration the lack of any other logical reason for the killing, such as revenge or accident. Once again, we think there was sufficient evidence for the jury to find beyond a reasonable doubt that appellant killed the deceased to eliminate a witness and thus hopefully avoid arrest for the robbery.

Appellant also contends that the jury’s finding that appellant committed the murder for pecuniary gain was unsupported by the evidence. This contention merits little comment. Suffice it to say that there was more than sufficient evidence to support the jury’s finding that one of the reasons appellant killed the deceased was to rob the store’s cash register. We have previously held that this aggravating circumstance is not limited to a killing for hire, but is also clearly applicable to a murder committed during a robbery. Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977).

The jury found none of the statutory mitigating circumstances to be applicable to appellant and, although the form indicated the jury could write in any other mitigating circumstances, they found none to exist. Appellant contends that the jury erred in not finding two of the statutory circumstances to be applicable:

I. The capital felony murder was committed while the defendant was under extreme mental or emotional disturbance.
II. The capital felony murder was committed while the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease or defect, intoxication, or drug abuse.

Appellant bases this contention on the report of the psychologist who evaluated him at the Arkansas State Hospital which stated:

... I conclude that Mr. Miller is not psychotic but is with serious emotional problems. I see his emotional problems in no way diminishing his competency to stand trial.
. . . My clinical interview and testing indicates that he is functioning at least in the borderline range of intelligence. Moreover, he is without organic dysfunction. There are indications that Mr. Miller has significant emotional problems, but no indication that these in any way interfere with his competency to stand trial. In my opinion, these test results are consistent with a diagnosis of an anti-social personality.

It is not strange that a person charged with capital murder would have a serious emotional problem, but there was no evidence that appellant was under an extreme mental or emotional disturbance at the time of the murder. There was also no evidence that appellant was under the influence of alcohol or drugs at the time of the murder, and the report clearly indicates that appellant was capable of appreciating the wrongfulness of his conduct and conforming that conduct to' the requirements of the law. The jury was free to give the report the degree of credibility and persuasiveness they felt appropriate, and they had the opportunity to observe appellant throughout the trial and hear his testimony and taped confession. We find no error in the jury’s finding that none of the statutory mitigating circumstances were applicable to appellant.

Appellant also contends that the trial court erred in requiring the jury to list in writing any additional mitigating circumstances it might find. This contention is wholly without merit. The provision on the form for the listing of any additional mitigating circumstances was included as an added safeguard to defendánts so that juries would not be limited in their consideration of circumstances that might call for leniency in sentencing. The latitude of a jury to list other mitigating circumstances in writing on the form is a benefit to a defendant and certainly not prejudicial. We find no error in the application of the law or in the procedures followed during the penalty stage of appellant’s trial.

Finally, as required by Ark. Stat. Ann. § 43-2725 (Repl. 1977) and Rule 11(f) of the Rules of the Arkansas Supreme Court, we have reviewed the entire record for other reversible errors and, finding none, affirm the verdict and sentence of the jury.

Judgment affirmed.

Fogleman, C.J., and Purtle and Mays, JJ., dissent.

John A. Fogleman, Chief Justice,

dissenting. Upon further extensive review of the record in this case, I must agree with my Brother Purtle that the evidence was not sufficient to support a finding that Miller knowingly created a great risk of death to a person other than the victim, Bolin. A jury could not have found this circumstance to exist without gross speculation. Giving the evidence on this circumstance its strongest probative force when viewed in the light most favorable to the state, it could not be classified as more than a scintilla. In .addition to the facts related in Justice Purtle’s dissent, the only evidence the jury might possibly have considered to support this finding was Hudson’s testimony that, when he was first confronted by Miller, who was" holding the cash box in both hands .and carrying it like it was a' heavy object, Miller madé a move and commanded, “You get in here.” Hudson demonstrated the move for the jury in a manner not. disclosed by the record. Hudson neyer saw a weapon until Miller had come out the side door and had gone down the street toward an alley, moving away from Hudson at all times; Perhaps the move Miller made when holding the box- was justifiably interpreted by Hudson as an indication that Miller was reaching for a concealed weapon. Still,.the requirements of this particular aggravating circumstance are not met by a showing that the accused knowingly created a great fear of death by a person other, than the victim; instead, Miller must have knowingly created,.a greát risk of death to a person other than Bolin, i.e., Hudson. There is not the slightest indication that when Miller came out the side.door that he ever, saw, or even looked toward, Hudson. The only evidence in the case indicates thát the gun. Hudson saw Miller put in his belt was empty. In his incriminating statement,- which was introduced in evidence, Miller said that the only four cartridges in the weapon were fired at Bolin before Hudson, appeared. But even if an inference could be drawn that the weapon was loaded, there was no evidence that any effort to use it on Hudson was ever made by Miller. However favorably toward the state the jury- viewed it, this evidence was not substantial to support a finding that Miller, knowingly created a great risk of death to Hudson.

I cannot accept the approach of the majority in its substituted opinion that somehow we should not require the same test for substantial evidence to sustain a jury finding of an aggravating circumstance, on which the infliction of the death penalty may hinge, just because 12 average citizens, untrained in the law, perhaps confused by the submission of an aggravating circumstance for which there was no basis, did the best they could but still “deliberately and conscientiously” agreed upon a wrong answer in making a sincere and honest finding “as they understood it.” The position taken by the majority to treat the jury’s finding of the existence of an aggravating circumstance as something other than a “separate little verdict”, which may be supported by evidence less than substantial, according to the usual tests, simply does not satisfy the requirements for a constitutionally imposed death penalty.

The test for substantial evidence is not met by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences; it must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion, one way or another,; it must force or induce the mind to pass beyond a suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W. 2d 748 (1980). “Any” evidence is not substantial evidence; substantial evidence is valid, legal and persuasive evidence and it must do more than create a suspicion of the fact to be established. Pickens-Bond Construction Co. v. Case, 266 Ark. 323, 584 S.W. 2d 21.

I submit the majority has not used the test for substantial evidence. How certain and precise is evidence, which does not compel a conclusion, but merely permits an appellate court to say that the “issue is whether, on the evidence the jurors could have sincerely and honestly have made the finding as they understood the question” or to test for substantial evidence by putting its members in the jurors’ position (as they understood it?) and understanding what the jury meant by answering this interrogatory as it did? If the majority finds the evidence to be substantial, it should demonstrate how it meets the test without resort to the ex-tenuatory explanations given.

The basic concern expressed by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) centered on defendants being condemned to death capriciously and arbitrarily. Collins v. State, 261 Ark. 195, 548 S.W. 2d 106, cert. den. 434 U.S. 878, 98 S, Ct. 231, 54 L. Ed. 2d 158, reh. den. 434 U.S. 977, 98 S. Ct. 540, 54 L. Ed. 2d 471 (1977). See also, Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Proffit v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944; Roberts v. Louisiana, 428 U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 974 (1976).

We clearly recognized in Collins that a trial judge should impose life imprisonment without parole for a capital felony murder, “if he found that there was not sufficient evidence to support the jury’s finding on any aggravating circumstance enumerated in § 41-4711, and that there was not sufficient evidence to support its finding that sufficient aggravating circumstances existed or that there were not sufficient mitigating circumstances to outweigh the aggravating circumstances, but there was sufficient evidence to support the finding of guilt.” [Emphasis mine.] We also said in Collins, in reference to this court’s power to reduce a sentence in death penalty cases, that “[t]here is a vast difference in reviewing a sentence for error (including error resulting from insufficient evidentiary support) in the sentencing procedure and reviewing a sentence resulting from a proper and legal sentencing procedure where sufficiency of evidence is not a basis for review.” In Collins, we emphasized the importance of the jury’s findings on aggravated circumstances, in imposing a death penalty which will pass constitutional examination and in avoiding arbitrary, capricious or freakish imposition of this extreme penalty. We said:

*** If a guilty verdict is returned, the same jury in the sentencing phase of a bifurcated trial may then hear testimony tending to show one of more specifically enumerated groups of aggravating circumstances; but the death penalty cannot be imposed unless the jury unanimously finds, beyond a reasonable doubt, that one or more aggravating circumstance[s] exist (specifying in writing which of them does) and finds that aggravating circumstances outweigh any mitigating circumstances found to exist. **

In pointing out that there was a meaningful appellate review of the imposition of a death penalty, we stated:

There is a meaningful appellate review by this court of the appropriateness of the death penalty in a particular case, considering both the. punishment and any errors on points raised in the trial court, including the sufficiency of the evidence to support any part of the jury verdict. This appellate review includes: (1) a determination whether the sentence was the result of passion, prejudice or any arbitrary factor; (2) whether the evidence support the jury’s finding of any statutory aggravating circumstances; (3) Whether the evidence supports the jury’s findings on the question whether mitigating circumstances outweigh aggravating ones; (4) whether the sentence is excessive. On appellate review, this court can reduce the sentence, or grant a new trial, in -its-discretion, if the sentence is excessive or there-is error affecting the sentence only, or where there is insufficient evidentiary support for the sentence. *** - [Emphasis mine.]

We recognized in Collins that'there is no specific requirement that this court compare sentences, but found that “the scope of permissible review of the sentence on appeal would necessarily require that we consult prior cases as precedent for our determining whether there was error in the sentencing procedure, whether the evidence was sufficient to support any finding made by the jury, whether any of the findings was the result of passion or prejudice or any other arbitrary factor and whether there had been an abuse of the discretion of either the jury or the trial judge in imposing the sentence.” [Emphasis mine.] In Collins, we concluded:

These sentencing and- review procedures certainly leave no substantial risk- that the death sentence will be imposed randomly, arbitrarily, capriciously, wantonly or freakishly, and tend to promote evenhanded, rational and consistent imposition of the death penalty.***

On the basis of this conclusion, review was denied by the United States Supreme Court at 434 U.S. 878, 98 S. Ct. 231, 54 L. Ed. 2d 158. The majority has now effectively sawed off one of the legs upon which that conclusion stood and has rendered our death penalty statute’s constitutionality suspect.

The importance of the' scope of appellate review outlined in Collins was given emphasis in Neal v. State, 261 Ark. 336, 548 S.W. 2d 135. Not only did we point out that “it will at least be as easy to review the record to see if there is súfficient evidentiary support for a jury’s findings on these, particularized circumstances as it is when a jury’s general finding of guilt is questioned,” and we also pointed out that there was no necessity for a mechanism requiring a report from the trial judge and an accumulation of the records of all capital cases. The reason was that a review w;as meaningful when the appellate court undertook to “review a case in which a defendant is sentenced to die in the light of other decisions to determine whether the punishment was too great and taking its function to be to ‘guarantee that the [aggravating and mitigating] reasons present in one case will reach a similar result to that reached under similar circumstances in another case.’” [Emphasis mine.]

I ask, how is an appellate review meaningful if the appellate court does not give any significance to the fact that a jury found an aggravating circumstance for which there was no evidentiary support, or even something less than substantial evidence, as we have defined it. Is the door not thrown .open to arbitrary and capricious imposition of the death penalty? Could the majority have swallowed a verdict in which a jury had, deliberately and conscientiously, given an affirmative answer to the question whether the murder tyas committed for the purpose of disrupting or hindering the lawful exercise of a governmental or political function?

We say that arbitrary means “decisive but unreasoned” and that capricious defined as “not guided by steady judgment-or purpose.” City of North Little Rock v. Habrle, 239 Ark. 1007, 395 S.W. 2d 751. What could be more arbitrary and capricious than finding an aggravating circumstance that did not exist? If we do not require the same degree of proof to sustain a jury verdict on an aggravating circumstance as we require for a finding of guilty, then why do wé not? In what kind of position must we put ourselves to. accept ¿verdict not supported by substantial evidence because we understand what a jury meant? Perhaps there are. others, who, as I, do not' understand it. We have never before upheld a jury’s answer to an interrogatory when there was no substantial evidence to support it, just because the jury answered it as they understood' it. A jury’s answer to a question “as it understood it” is certainly “decisive but unreasoned,” if its understanding was wrong.

I am well aware of the fact that appellant did not object to the instruction given on aggravating circumstances nor to the verdict form including this circumstance; however, this does not bar our review of the sufficiency of evidence when the question has been raised on appeal. I am also aware of the potential argument that an erroneous finding as to one aggravating circumstance should not overturn the verdict because the jury found four aggravating circumstances and no mitigating circumstance.

The flaw in this argument is that it is for the jury, and the jury alone, to impose a death sentence in the first instance, in obedience to statutory guidelines for the exercise of its discretion. It shall impose the sentence, if, but only if, it unanimously finds that aggravating circumstances justify a death sentence beyond a reasonable doubt. Ark. Stat. Ann. § 41-1302 (Repl. 1977). Even with the questioned circumstance eliminated, I agree that the evidence justified the requisite findings of the existence of aggravating circumstances and that the three aggravating circumstances supported by the evidence, would outweigh, beyond a reasonable doubt, mitigating circumstances which did not exist. But there was some reason for including the third statutory requisite that the aggravating circumstances must be found to justify a sentence of death beyond a reasonable doubt. How can this court know how much weight the jury gave a non-existent circumstance in deciding that the. death penalty was justified? That decision rested entirely with the jury. It is not up to this court to say that because a jury could have reached its conclusion on the basis -of three, rather than four, aggravating circumstances that it necessarily did.

The state’s taking of a human life is a serious matter. This is the reason that we have come to the point where we impose elaborate safeguards to make sure that it is done only in. stricly limited types of situations. The mere fact that an appellate court can read a record and say that it thinks a death penalty was justified in a particular case is not an adequate safeguard, any more than the exercise of standardless discretion by a jury, which is primarily the conscience of the community. The courts can only afford protection against a jury’s artibrary or capricious action. There is no way that this court on appellate review of other death penalty cases can properly classify this case in determining whether another death penalty was properly imposed.

I am compelled to register a respectful dissent. Since I find error in the sentencing procedure, I would correct it by reducing the punishment to life imprisonment without parole, unless the state should elect to seek a retrial, in which event, I would reverse the judgment and remand the case for a new trial.

John I. Purtle, Justice, dissenting. I dissent only from that portion of the opinion which covers Point IX in appellant’s appeal. This point covers the aggravating circumstances. I agree that aggravating circumstances one and four as found by the jury were proper. However, I do not agree that the evidence supports finding aggravating circumstances two and three.

I will first discuss aggravating circumstances number two which the jury found to exist. The jury answered yes to the following:

The defendant did, beyond a reasonable doubt, in the commission of the capital felony murder knowingly create a great risk of death to a person other than the victim.

This finding was based upon the theory that the appellant created a great risk of death to the witness, Jim Hudson. Jim Hudson testified that he heard the shots next door and went over to investigate. He stated:

... In fact, I got in the door, had the door pushed open and then right in my face was a black guy and he had a metal box in his hand. Both hands were just carrying it in front of him like this. He was carrying it just like it was a heavy box or something but that is the way he was carrying it. Yes, I am indicating that his fingers were underneath the object and his thumbs encircling the top. ... I recognized that as being his money box . . 1 He turned away from the police station, well he had the gun or he had a gun in his hand. It was more down to his side. He was glancing from side to side as he went toward the alley. I would say approximately half way between the door that he came out of in the alley, he then stuck the gun in front, apparently in his belt or in his clothing. And then he run. And he turned up the alley. . . .

This is the only possible evidence upon which the jury could have found the appellant created a great risk of death to a person other than the victim, and it prevents me from agreeing that this was a proper finding of an aggravating circumstance. When the witness encountered the appellant, both hands were holding a box in front of him. The witness backed out of the building; and, when he next saw the appellant, he was leaving the scene of the crime. When he saw the appellant leaving the scene, the gun was in his hand down by his side, and then it was placed inside the front of his belt or in his clothing. The appellant ran away.

At no time was the gun aimed at the witness nor were any shots fired which could have conceivably struck this witness or any other person. Therefore, I simply cannot see that there is enough evidence to support this finding of an aggravating circumstance.

The second finding of aggravating circumstance which I disagree with was:

The defendant did, beyond a reasonable doubt, commit the.capital felony murder for the purpose of avoiding or preventing an arrest or effecting an escape from custody.

By no stretch of imagination can I believe that the victim was killed for any purpose other than to obtain his money. The majority concludes that the appellant must have had thoughts running through his mind that he should kill the victim to keep from being identified. However, the aggravating circumstance in this case found that the killing was for the purpose of avoiding or preventing an arrest or effecting an escape from custody.- Certainly, he had not been in custody and could not have been attempting to escape. It is certainly more logical to presume that the appellant thought he would never be identified, and no thought was in his mind of preventing an arrest. It is my opinion that this aggravating circumstance is intended to cover a situation, where a person is physically attempting to prevent arrest or trying to escape from custody.

In view of the erroneous findings by the jury of these two mitigating circumstances, I would reduce the sentence to life without parole and return it to the trial court "giving the prosecution an option to either concur in the life without parole sentence or retry the appellant.

I am authorized to state that Mays, J., joins me in this dissent.

       This was the controlling statute at the time of the Collins trial. The present corresponding statute is Ark. Stat. Ann. § 41-1303 (Repl. 1977).

       Cert. dea, .434 U.S. 878, 98 S. Ct. 231, 54 L. Ed. 2d 158, reh. den. 434 U.S. 961; 98 S. Ct. 495, 54 L. Ed. 2d 322 (1977).


author: Richard L. Mays, Justice.

text:
    NEW HAMPSHIRE INSURANCE CO. v. Sheila QUILANTAN
    80-23
    601 S.W. 2d 836
    Supreme Court of Arkansas
    Opinion delivered June 23, 1980

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellant.

      Hobbs & Longinotti, by: Richard W. Hobbs, for appellee.
   Richard L. Mays, Justice.

This appeal is from a judgment an attorney’s fee of $12,500 under Ark. Stat. Ann. § 66-3238 (Repl. 1966) providing for an award of a reasonable attorney’s fee against an insurer who wrongfully refuses to pay under an insurance policy. The only question raised by appellant is whether the attorney’s fee award is excessive.

We previously held the award to be excessive in an earlier appeal in the same case because the record did not indicate the basis for the award. See New Hampshire Ins. Co. v. Quilantan, 263 Ark. 892, 569 S.W. 2d 102 (1978). The first $12,500 award was made after appellee, Sheila Quilantan, obtained a summary judgment for $45,237.50, including penalty and interest, against appellant, New Hampshire Insurance Company, which had refused to pay under a fire insurance policy on appellee’s home. When the appellant appealed, we sustained the summary judgment but found the attorney’s fee to be excessive, providing in the alternative that the appellee’s attorney either accept a reduction to $6,000 or present evidence to support the award. Refusing to accept the reduction, appellee’s attorney presented evidence at a subsequent hearing before the trial court to establish the reasonableness of the fee, at the conclusion of which the court reinstated its original award of $12,500.00.

This Court has consistently held that there is no fixed formula to be used ih determining the reasonableness of a fee. Federal Life Insurance Company v. Hase, 193 Ark. 816, 102 S.W. 2d 841 (1937). The award of an attorney’s fee is a matter which is addressed to the sound discretion of the court and, in the absence of abuse, its judgment will be sustained on appeal. Equitable Life Assurance Society v. Rummell, 257 Ark. 90, 514 S.W. 2d 224 (1974). In reaching any determination, however, the court should be guided by such factors as the experience and ability of the attorney and the time and work required of him, the amount involved in the case and the results obtained and the fee customarily charged in the locality for similar legal services. Equitable Life Assurance Society, supra.

Notwithstanding the evidentiary hearing below, which primarily consisted of the testimony of appellee’s attorney and four other local counsel, appellant contends that there is no rational basis to support a $12,500 attorney’s fee award. However, our review of the record reveals evidentiary support for the award. Appellee’s attorney has been practicing law for 38 years and is highly respected in the legal community. He spent 91 to 100 hours in preparing the case and demonstrated unusual skill in obtaining a particularly impressive result. The fee awarded him is compatible with the customary fee charged in the community for similar services. Under such circumstances, we cannot say that the award of $12,500 is without a rational basis.

Affirmed.


text:
    Karl FARRELL v. STATE of Arkansas
    CR 80-13
    601 S.W. 2d 835
    Supreme Court of Arkansas
    Opinion delivered June 23, 1980

      Robert. R. Cloar, for appellant.

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

This is an interlocutory appeal an order prohibiting appellant, who is charged with rape, from introducing evidence of the victim’s prior sexual conduct. We do not reach the merits of the appellant’s argument because the offer of proof of the victim’s prior sexual conduct was inadequate.

On September 4, 1978, appellant, Karl Farrell, was charged by information in the Sebastian County Circuit Court with engaging in deviate sexual activity, with a child ten years of age. Seeking to introduce evidence of the child’s prior sexual conduct, appellant filed a written motion to establish the admissibility of the evidence. Under Ark. Stat. Ann. § 41-1810 (Repl. 1977), commonly referred to as the “rape shield” statute, such evidence may be introduced by a defendant if the trial court determines at a pre-trial hearing that it is relevant and that its probative value outweighs its inflammatory or prejudicial nature. At the hearing on appellant’s motion, . appellant presented no testimony but simply indicated to the trial court that he believed that the victim would admit having prior sexual conduct with others of a nature similar to that involved in the charge against appellant if questioned. Appellant contends that such evidence should be considered by the jury in mitigation of the penalty for rape. When the court denied the motion, appellant filed this interlocutory appeal.

Although we understand the purpose for which appellant offers to introduce evidence of the victim’s prior sexual conduct, no court can determine its relevancy and whether that relevancy outweighs its inflammatory or prejudicial nature without hearing the evidence. At the hearing below, appellant not only did not produce any facts of the child’s prior sexual conduct, he did not even contend that he knew of any. We have held many times that an evidentiary proffer must be sufficiently concrete and provide enough details for the trier of fact to perform its tasks. Duncan v. State, 263 Ark. 242, 565 S.W. 2d 1 (1978). Marion v. State, 267 Ark. 345, 590 S.W. 2d 288 (1979). Even without the “rape shield” statute one rule of evidence remains quite clear: no proof of the victim’s prior sexual, conduct means ao admission of it.

Affirmed.


author: PER CURIAM

text:
    Ada STEWART, Administratrix of the Estate of Wesley SHAW, Sr., and Dixie Mae SHAW v. Dessie K. SMITH, Administratrix of the Estate of Carolyn SHAW, Deceased, and Wesley SHAW, Jr.
    80-91
    601 S.W. 2d 837
    Supreme Court of Arkansas
    Opinion delivered June 23, 1980

      Charles A. Brown, for petitioners.

      Jewell Brown, P.A., for respondents.
   PER CURIAM

We granted certiorari in this case since it involves the interpretation of Ark. Stat. Ann. § 50-411 (Repl. 1971) and Ark. Stat. Ann. § 61-141 (d) (Supp. 1979).

In affirming the Court of Appeals, we only amplify its opinion on the issue of illegitimacy, § 61-141 (d). The verified petition for appointment of a personal representative for the estate of the decedent, Wesley Shaw, Sr., signed by petitioner Shaw, was filed by him on December 1, 1975. He listed himself as an heir with the relationship of “son”. He also listed as grandchildren the two infant children of petitioner Smith’s decedent. As indicated in the Court of Appeals’ opinion, the respondent, Ada Stewart, filed an objection to this proceeding on December 24, 1975, raising the question of their illegitimacy. That objection specifically asserted that as a “natural sister” of the decedent, she might have an interest as an intestate heir and that any claim by petitioner Smith’s decedent and petitioner Shaw “derives solely from their status as alleged illegitimate children and or descendants of such illegitimate children of the decedent.” Further, the personal representative, appointed at the request of petitioner Shaw, “is the nominee of persons whose interest in this litigation is adverse to petitioner both in theory and in fact.”

In the circumstances, we hold as of April 26, 1977 (the date of the decision in Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 [1977]), litigation was pending as to the right of petitioners to inherit as illegitimate descendants of the decedent. Lucas v. Handcock, 266 Ark. 142, 583 S.W. 2d 491 (1979). See also Compton, Adm’x v. White, Guardian, 266 Ark. 648, 587 S.W. 2d 829 (1979). With this additional observation, the opinion of the Court of Appeals is affirmed in its entirety.

Affirmed.