author: Carleton Harris, Chief Justice.

text:
    Rachel Mae ROSE v. S. C. ROSE, Jr
    5-6222
    495 S.W. 2d 524
    Opinion delivered June 4, 1973

      Lohnes T. Tiner, for appellant.

      Carrold E. Ray, for appellee.
   Carleton Harris, Chief Justice.

This is a divorce case. Rachel Mae Rose, appellant herein, and S. C. Rose, Jr., appellee, were married on December 10, 1944, and separated in June, 1968. One child, Sammy Kieth Rose, an invalid, age 18 at the time of the final hearing, was born to the marriage. In July, 1968, Mrs. Rose im stituted suit alleging that the parties had not lived together as husband and wife since June 21, 1968; that Mr. Rose was guilty of adultery and she was entitled to an absolute divorce. Thereafter, on April 9, 1969, the complaint was amended whereby Mrs. Rose sought only a divorce from bed and board. After a hearing, the St. Francis County Chancery Court held that Mrs. Rose was entitled to a divorce from bed and board; granted to her possession of the home owned by the parties, together with household items contained therein and also gave her possession of a Buick automobile; awarded Mrs. Rose $100.00 per week; awarded custody of the minor child to Mrs. Rose and directed Mr. Rose to pay all necessary medical and hospital expenses of the son. Mr. Rose was further directed to pay taxes on the home and premiums on an adequate insurance policy. The court also found that certain certificates of deposit purchased by Rose in his wife’s name were a gift and that Mrs. Rose was entitled to these certificates which had a total face value of $35,400.00. The court held that certificates of deposit in the name of the son were not within the jurisdiction of the court since he was not a party. Mr. Rose was awarded one certificate of deposit in the amount of $10,000, plus interest collected by his wife, .and after Mrs. Rose’s failure to surrender the certificate of deposit to appellant, the court ordered its cancellation by the bank and the issuance of a new certificate. Subsequently, Mrs. Rose amended her complaint and again sought an absolute divorce and the present action was commenced by appellant alleging general indignities and adultery as her grounds for absolute divorce. Appellee filed a cross-complaint seeking a divorce, alleging general indignities, and continuous separation without cohabitation since June 15, 1968. By decree of August 10, 1971, the court granted a divorce on three years separation without cohabitation, but this divorce was not given to either party, and the court reserved for future disposition other issues, which, of course, included property rights. Thereafter, other hearings were held on the question of property rights and the court entered its decree, finding that Mrs. Rose’s prayer for property settlement, because of facts hereafter discussed, should be dismissed. From the decree of divorce and the order just mentioned, appellant brings this appeal. For reversal, it is first asserted that the trial court erred in dissolving the marriage without awarding one of the parties a divorce and that the court was in error in failing to grant Mrs. Rose a divorce on the grounds of adultery.

The seventh ground of our statute on divorce, Ark. Stat. Ann. § 34-1202 (Supp. 1971), provides as follows:

“Where either husband or wife have lived separate and apart from the other for three (3) consecutive years, without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether such separation was the voluntary act or by the mutual consent of the parties and the question of who is the injured party shall be considered only in cases wherein by the pleadings thé wife seeks either alimony under Section 34-1211, Arkansas Statutes 1947, or a division of property under Section 34-1214, Arkansas Statutes 1947,. as hereby amended, or both.”

This section is applicable to this litigation and the court should have rendered a ruling'as to fault. We know of no change in the law that would affect our opinion in Jones v. Jones, 201 Ark. 546, 145 S.W. 2d 748, which involved the question of three years separation and the awarding of property rights. This court said:

“Act 20, after stating that’the court shall grant an absolute decree of divorce at the suit of either party where husband and wife have lived apart from each other for three consecutive years without cohabitation, contains this language: ‘ . . .and the question of who is the injured party shall be considéred only in the settlement of the property rights of the parties and the question of alimony.’
“Clearly (insofar as property may be used to compensate) here is an, express direction that courts ascertain which spouse occasioned the injury resulting in divorce by expiration of time, and that compensation be in proportion to the degree of injury; otherwise the sentence would be meaningless.”

In the litigation now before us, the' court found that Mr. Rose was guilty of adultery and indeed, the charge was not even denied by appellee in his testimony. He admitted adultery with two different women and, in fact, admitted that he was living in adultery at the time of this litigation and the granting of the decree. We think the divorce should have been granted to Mrs. Rose on this ground, and we so hold. While Arkansas apparently has no cases on the exact point of whether a divorce should be granted specifically to one of the parties, we certainly think, at the least, that this is far the better procedure. In Friedman v. Friedman, 100 So. 2d 167, the Supreme Court of Florida in a well-considered opinion by Justice Thornal, stated:

“The problem will arise only in those cases where both parties seek a divorce such as in the case before us. It will be recalled that the Chancellor merely ‘dissolved the bonds of matrimony,’ without finding the equities prevailing either way and without determining which party had established his or her entitlement to the divorce. In fairness to the Chancellor we should point out that within the confines of our own decisions there appear to be two lines of cases which could lead a trial judge in either direction. It is, therefore, quite understandable that the Chancellor here concluded that he was within the limits of controlling precedents when he found as he did merely dissolving the bonds of matrimony. We think this problem could be of importance in future cases and we, therefore, feel that we should resolve the problem and set the point at rest for the benefit of the Bar and future litigants.
“Admittedly, there is a division of authority around the country. In 17 Am. Jur., Divorce and Separation, Sec. 465, p. 574, it is stated generally that it has been held that a divorce decree does not necessarily have to state the party in whose favor it is granted. To support this statement the authors cite several cases from the Supreme Court of Arizona. This does seem to be the rule in Arizona and possibly some other states. Coming to our own prior decisions we encounter Williamson v. Williamson, 153 Fla. 357, 14 So. 2d 712, where the Chancellor merely divorced each party from the other. On appeal this court declined to reverse the Chancellor by adhering to the general statement of the proposition that the failure of a Chancellor to make specific findings of fact in an equity suit is not reversible error.
“However, we next examine Sahler v. Sahler, 154 Fla. 206, 17 So. 2d 105, where this court specifically held that it is incumbent upon the trial Chancellor in a divorce proceeding where both parties claim a right to a divorce to determine from the evidence who is at fault and specifically grant relief to the innocent party.
In Macfadden v. Macfadden, 157 Fla. 477, 26 So. 2d 502, we again stated that the final decree in a divorce proceeding such as the one now here should specifically designate the successful party. * * *
“After carefully considering the prior decisions we are of the view that the better rule as well as one which provides a more orderly procedure consistent with equitable principles requires that in a divorce proceeding where both parties lay claim to a divorce, it is the responsibility of the Chancellor in the first instance to specifically determine by his final decree the relative equities and designate the party entitled to the divorce and the one to whom it is granted. Consonant with this conclusion, therefore, we recede from anything appearing to the contrary in Williamson v. Williamson, supra, and adhere to the rule on this point as announced in Sahler v. Sahler, supra, and Macfadden v. Macfadden, supra.”

We hold that a divorce must be granted to one of the parties, and in the present instance, that divorce should have been granted to Mrs. Rose.

The next two points really deal with the same subject and will be discussed together. It is contended that the trial court erred in refusing to award appellant her statutory interest in appellee’s property, alimony, and in denying her any relief.

Normally, of course, it being determined that Mrs. Rose was the party entitled to the divorce, appellant would be awarded her statutory interest in the property, and perhaps an award of alimony would be. in order. The chancellor refused to make any such award due to the fact that Mrs. Rose had taken, and used or secluded monies that were not her own, and would not account for those sums to the court. It will be recalled that after dissolving the bonds of matrimony between the parties, the chancellor had held in abeyance any further findings until an additional hearing was held. This developed into several additional hearings, after which, the court entered lengthy findings in support of its action in dismissing appellant’s prayer for a property settlement. The additional hearings were due to the efforts of the court in endeavoring to persuade Mrs. Rose to advise the court the disposition of the personal properties wrongfully taken. While it will add considerably to the length of this opinion, we think, because of the denial of any further property rights to appellant, and the unusual circumstances of this case, the clear defiance of, and lack of cooperation with, the trial court, that large portions of the record should be included in this opinion.

While the evidence is conflicting and confusing, partly because there were numerous certificates and several different bank accounts, as well as the inconsistencies in the testimony hereafter set out, it appears that the funds the court was particularly seeking information about were those derived from a certificate of deposit in the amount of $10,000.00, held to be the property of Mr. Rose, the $3,886.34 which had been deposited for the benefit of the son, and the sum of $5,711.30 which had been withdrawn and then deposited by Mrs. Rose in her own name in Leader Federal.

While these were the properties the court was principally interested in, the examination of Mrs. Rose covered all of the funds that appellant had taken possession of, the bulk ($35,400.00) of which had been awarded her as a gift from her husband at the time she was awarded a divorce from bed and board. Of course, all funds had been commingled and in ascertaining the disposition of funds not properly held by appellant, it was necessary to include interrogation about all. The evidence of how much money Mrs. Rose held in her own right was only, of course, pertinent to the question of a proper award of alimony, and the question of the payment of attorney’s fees. The record reflects the difficulty encountered in seeking information from appellant.

Mrs. Katherine Ladd, who has served as the court reporter for the previous judge (Judge Ford Smith) was ' subpoenaed and testified from her notes at a hearing held on October 14, 1970 before Judge Smith. That portion of the record is as follows:

“Q. What about the interest on this $35,000?
A. I have spent it and paid bills and repaired the home.
Q. You are still drawing interest on it?
A. I don’t have it anymore.
Judge Smith. They do pay you interest on it?
A. Yes
Judge Smith. But you have disposed of the $35,-000.00?
A. I have needed it this year.
Q. Do you not own the $35,000.00 anymore?
A. Yes, that is true.
Q. You are telling the Court that you have disposed of since last April of $35,000.00?
A. Yes, but a lot of that was past due debts.
Q. What did you owe?
A. Several debts.
Q. You can’t tell me what you did with the $35,000.00?
A. No.
Q. You are still receiving the interest on $13,800.00 in Sammy’s name?
A. No.
Q. Have you disposed of that?
A. Yes.
Q. Did you use it for Sammy’s benefit?
A. Yes, anything we needed.
Q. In addition you spent $15,886.34 for Sammy’s benefit?
A. For the home, for me and for Sammy.
Q. You have spent a total of $48,000.00?
A. I did not say I spent it. I do not have it anymore.
Q. Can you tell me what you did with any part of it?
A. No.
Q. Is it a fact that you won’t tell me or you cannot tell me?
A. It is partly both.
Q. You are refusing to answer the question?
A. Yes, I cannot.
Mr. Ray. Tell the witness to answer the question please.
Judge Smith. She says she cannot tell you.
Q. Mrs. Rose, you are — do you realize that you are under oath?
A. Yes.
Q. And you are telling me now that you do not know what you did with Certificate of Deposit No. 196, in the amount of $10,000.00?
A. I can’t even tell you if you are reading the right number.
Judge Smith. You cannot or you will not?
A. Both.
Judge Smith. If you can, you will answer the question; if you cannot, then you cannot.
A. I cannot.
Judge Smith. But you have disposed of it?
A. Yes.
Judge Smith. By gift or otherwise?
A. By debt and gift and entertainment for me and Sammy, that we have never had before. Sammy has never been left out of anything I have ever done.
Judge Smith. She says she spent it for entertainment on herself and for her son.
Q. I am looking at a Certificate of Deposit at Forrest City, made payable to you and Mr. Rose, in the amount of $10,000.00. What did you do with that?
A. The same thing I did with the last one.
Judge Smith. How did you spend the money that belonged to the boy? Did you endorse his name to it?
A. Yes, sir.
Q. I am looking at a Certificate of Deposit issued by the Bank of West Memphis, dated July 18, 1966, made payable to you in the amount of $10,000.00, what did you do with that?
A. The same thing.
Q. If I should read all of these certificate numbers, you would tell me the same thing on each one?
A. Yes, sir.
Judge Smith: How much does this total?
Mr. Ray. To her $35,000.00, and the son was $13,-886.34.
Judge Smith. Making a total of $48,886.00 ***
Q. I ask you, do you have any of this money in any account?
A. Not any of this money, I do not have.
Q. Do you have any money that he has paid you?
A. No, sir.
Q. You have in addition spent, a year from to date, and assuming that he has paid you every payment, you have spent $5,000.00 in addition to this money?
A. I can’t say I have spent it; it has slipped through my hands.” ,

At a hearing held on November 23, 1971, before the present chancellor, the transcript of the proceedings includes the following:

“BY THE WITNESS [Mrs. Rose]: Your Honor, there has been a lot of money, and this money has all — these certificates has all been cashed in the banks that they were in. They were everywhere, and they were— —And I have deposited every dime I could get my hands on in this one bank, and the way he is doing it, one at a time, if he would do it all at one tíme and ask me, I can explain every bit of it to you —and would be happy to do it.
Q. Mrs. Rose, let me ask you a question. Did you not between February 2, 1970, and June — July 15, 1970, deposit $37,527.31 in the National Bank of Commerce in Account 01-151-998-2?
A. Ah, do you mean deposit it in the bank?
Q. Yes ma’am.
A. I probably did, but it was left there no longer than I could write another check on it. *** I have deposited everything I had in the bank and turned around and bought stock with it in the National Bank of Commerce in this year you are talking about, and then it has all been take — every dime I had, all these you are talking about, Leader Federal and all these other banks, every dime I had from every source, my money, the money that the Court gave me before — every dime, was all put in this bank and that’s all I had everywhere, except maybe two or three hundred dollars ($200 or $300) in the bank at Hughes. ***
Q. There are checks here that I would like to submit to you to help the showing that there have been deposits of $55,830.35 in that bank, and there .is only withdrawals there of $43,000.00.
A. Well, if it hadn’t been draw — withdrawed, it’s still there and I don’t know nothing about that either, — but it has been withdrawed and put in this and I bought stock with every dime I had. There is no money nowhere. I have $11.00 in the bank. Everything has been put right here, everything. *** I have said that my money has been withdrawed from all banks, all sources, everywhere — money I had in the deep freeze or safe at home, everywhere, — has been brought out and put in this one bank and I had two (2) — ah, ah, stocks or bond, I don’t know what they call them, sir. I had them there, one of them was $28,000.00, and one — around $58,000.00, and it was all put there in the bank together, after I got it all together. He could drag up things like this for a week in the — in the last twenty years (20 yrs.) we’ve been married. ***
Q. Mrs. Rose, assuming for the purposes of the record, that the checks introduced here as being deposited in the National Bank of Commerce, totaled $55,838.35, and the deposits on the accounts which have been introduced in the same bank, only shows a little more than $44,000.00, do you recall drawing $11,000.00 in cash at anytime in that — in the checks that vou deposited in that bank?
A. It shows — what did I have in the bank at one time?
Q. It shows that you had checks going through that bank, to be apparently deposited, of $55,838.35. Your deposits show that I believe you deposited $44,165.00.
A. I don’t recall without the balance could be interest that I just—
Q. Do you recall at anytime withdrawing cash of $11,000.00?
A. No sir, I don’t. I just don’t know.”

Subsequently, Mrs. Rose stated she had withdrawn all of her deposits and she was then asked what she had done with the withdrawals:

“A. Well, it’ll be hard to explain and you’ll never believe it. I don’t know why — how to explain it. All I can tell you is now I have $30,000.00 and I owe at least $15,000.00 .of that.
Q. Mrs. Rose, your attorney can bring out what you owe, I’m interested in what you have.
A. I have $30,000.00, sir.
Q. Where do you have that?
A. I have it in cash, and it’s buried.
Q. And it’s buried.
A. And it’s not in no bank.
Q. It’s not in anybody’s possession but your’s?
A. But mine.
Q. Yes ma’am, you have now — you are telling this Court now that you have $50,000.00 buried?
A. In cash money.
Q. Are you -
A. Cold cash.
Q. Are you talking about buried in the ground?
A. Yes, sir.
Q. And when did you bury that?
A. I couldn’t tell you the date when I buried it.
Q. Well, has it been recently?
A. Yes, sir.
Q. Within what period of time? Six months — three months?
A. The last year, anyway.
Q. Mrs. Rose has it been within the last three months?
A. I don’t know.
Q. Ma’am?
A. I wouldn’t recall.”

Subsequently, she stated she had given the money to her father to keep for her.

All in all, four or five different versions were given.

At a hearing in early January, 1972, the court again emphasized that it was interested in what she did with the approximately $20,000 that she had taken that was not awarded to her by the court and was commingled with her property. Another hearing was conducted in February, 1972, but like the others, it shed but little, if any, light on the subject. After repeated questioning relative to what had been done with the money, Mrs. Rose responded, “I spent all of our money, my money, everybody’s money, but $26,000. I don’t know how to put it to you any better.”

Following this last hearing, the court entered its findings, pertinent portions reading as follows:

“Her testimony at this time was more evasive, contained more inconsistencies and was less credible than that at previous hearings. One who has on that and all other occasions observed her manner and demeanor and noted the inconsistencies between her direct and cross examination can attribute little or no credibility to her testimony. The Chancellor will not here attempt to point them out, but the record is replete with these variations.
“If. the Court was to accept her testimony as to the accounting or if she had been able to fully document it, could anyone say that her stated reasons for her actions here improves her position? To the contrary, she would have slain herself with her own sword. She stated to the Court that she had come into this Court in the prior action asking its protection and relief, but not being satisfied with what she had received at the hands of the Court she did what she felt she wanted to do; took that which the Court gave her and whatever else she wanted, desired or could find.
“As she did not feel that the award of the Coiirt was sufficient to maintain her in the standard to which she had become accustomed, she, while accepting all the benefits, felt relieved of the burdens of that award.
“In so far as her disposition of the money in issue is concerned, the Chancellor, quite frankly, does not know what to believe. However, if she spent, as she now indicates (rather than in the manner which she has on two or three other occasions testified) would she be in any more tenable position that if she in fact, has these funds invested in treasury bills which defendant suspects and offered testimony to prove but which she says she lost at the races?
“The Court finds that the funds in issue in both Chancery cases were derived solely from the earnings of the husband. ****
“This conduct on her part in converting all three (3) sums to her own use, was wrongful and under the circumstances making it unconscionable. The Court finds from all the facts and circumstances here present, that she has not done equity while seeking it, and that her conduct disqualified her from receiving further consideration in this Court.
“The Court directs: All further relief prayed by the plaintiff herein denied.”

The court kept in effect the order requiring Mr. Rose to pay medical expense and take care of the needs of his child.

One cannot read this record without feeling that Mrs. Rose deliberately set for herself a course of action so as to preclude the court from becoming informed as to what happened to the money at issue. Also, it seems clear that the chancellor gave her every opportunity to comply with his request and order. In fact, he exhibited a great deal of patience under most trying circumstances. There is no way, even though we were inclined to overlook Mrs. Rose’s attitude in refusing to comply with the court’s request, to determine what statutory allowances should amount to. It could even be that she has already received all that she would be entitled to under the law. At any rate, if her statutory share is deficient, Mrs. Rose can only blame herself. The burden was on her to establish the amount to which she was entitled.

An additional attorney’s fee is sought by appellant, but under the state of the record, and it appearing that the additional hearings and voluminous testimony were largely the result of appellant’s refusal to furnish the desired information, we feel constrained to deny the request.

In accordance with what has been said, we think the decree should bé affirmed as herein modified, and the cause is remanded for the entry of a decree consistent with this opinion.

It is so ordered.

Byrd, J. dissents as to modification.

      Mr. Rose married the person with whom he was liying soon after this divorce was granted.

       It might be mentioned that the Florida Legislature has now enacted legis'lation, setting up whaf'is commonly called “No-Fault Divorce”, such legislation becoming effective on July 1, 1971. See Fla. Stat. Ann. § 61.052 (Suppl. 1973).

      Mr. Rose’s financial statement reflected a net worth of $28,169.20.


source: Caselaw Access Project

license: Public Domain

text:
    Larry Edward TAYLOR v. STATE of Arkansas
    CR 73-38
    495 S.W. 2d 532
    Opinion delivered June 4, 1973

      George Edward Thiel, for appellant.

      Jim Guy Tucker Atty. Gen. by: Charles A. Banks, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Larry Edward Taylor, appellant herein, was'arrested at about 1:15 A.M. on November 23, 1972, at a cafe in Paragould for drinking in public. After the arrest, he was taken to the Paragould City Hall and given an alcohol breathalizer test which tested .11. This alcoholic content was not considered sufficient to justify a charge of public drunkenness, but, of course, drinking in public is an offense within itself. See Ark. Stat. Ann. § 48-943 (Repl. 1964), which provides .that:

“Any person who shall in any public place, or highway, or street, or in or upon any passenger coach, street car, or in or upon any vehicle commonly used for the transportation of passengers, or in or about any depot, platform waiting station or room, drink any intoxicating liquor *** shall be guilty of a misdemeanor***.”

After the taking of the test, Taylor was requested to remove the contents of his pockets, and this revealed an unusual amount of change ($34.85) as well as $34.00 in bills. According to Assistant Chief of Police Jack Rogers, it was unusual for one to be carrying that much change. “I figured it was probably business for the CID boys so I sent for him.” Rogers and another officer started with Taylor to the jail, but Taylor broke and ran, the officers pursuing. Finally, when Taylor fell, they caught him and took him back. The officer testified that before taking a prisoner to jail, personal belongings are taken, even including a belt, and an officer, running his thumbs around Taylor’s waistline felt paper inside. Taylor was directed to undo the front of his pants and when he did, money, a check, and an IOU fell out to the floor. There was $231.00 in money, a $5.00 check, and a $5.00 IOU. The check was made out to K & M Auto Machine Company, and the IOU (subsequently developed) had been placed in the cash register by Jim Prewitt, an eleven-year employee of K & M Auto Machine Company, as notice that he had taken $5.00 in cash. Later in the day, Paragould police learned that there had been a burglary and a theft of money from K 8c M Auto Machine Company. The next day, an Information was filed in the Greene County Circuit Court charging Taylor with burglary and grand larceny and on trial he was convicted on each count and sentenced to twenty-one years imprisonment in the Arkansas Department of Correction on each count, as an habitual criminal with four previous convictions. From the judgment entered in accordance with the jury verdict, appellant brings this appeal. For reversal, it is first urged that the trial court erred in failing to suppress the evidence taken from appellant by the Paragould police officers since it was obtained without a search warrant having first been properly issued; further, that the court erred in failing to direct a verdict of acquittal, and finally that the court erred when it failed to give appellant’s requested Instruction No. 2. We proceed to discuss these points in the order listed.

As to the first point, we cannot agree with appellant’s contention. The initial arrest was entirely proper, one of the officers testifying that he observed a partially filled half-pint (whiskey) on appellant’s person, and that Taylor was carrying and drinking out of a Seven-Up bottle that very obviously contained something besides the soft drink. As previously stated, this was a misdemeanor, the offense being observed by the officers. An officer can legally make an arrest for a misdemeanor when the offense is committed in his presence. Johnson v. State, 100 Ark. 139, 139 S.W. 1117.

The direction by the officers to Taylor to empty his pockets at City Hall preparatory to jailing appellant for the offense committed, as well as the request to open his pants after the bulk of paper was felt within his clothing, were entirely proper. The requirement is certainly a valid precaution since Taylor could have possessed some item dangerous to the officers, fellow prisoners, or himself. It will also be recalled that Taylor had tried to run away after removing the change and bills from his person, a rather suspicious circumstance.

Nor can we agree that the court erred in failing to direct a verdict of acquittal. Evidence at the trial reflected that the K & M Auto Machine Company of Paragould had been burglarized on November 22, 1972; that $293.28 in cash, the $5.00 IOU previously mentioned, a check in the amount of $5.00 made payable to K & M Auto Machine Company, and other items had been taken. This testimony, together with the fact that Taylor had been in possession of the specific items mentioned, was sufficient to make a jury question. Taylor did not testify.

Finally, it is asserted that the court erred in not giving appellant’s requested Instruction No. 2. This instruction related to the defense of drunkenness. We agree with the trial court that the instruction was not justified under the evidence. No officer testified that Taylor was drunk or that his speech and coordination were impaired, nor did appellant, through any witness, offer any such defense.

Finding no reversible error, the judgment is affirmed.

It is so ordered.

      The officer identified whiskey by smelling the contents.

      ‘‘You are instructed that a person is ‘drunk’ when he is so far under the influence of liquor that his passions are visibly excited or his judgment impaired, or when his brain is so far affected by potations of liquor that his intelligence, sense-perceptions, judgment, continuity of thought, or of ideas, speech, and coordination of volition with muscular action (or some of these facilities or processes) are impaired or not under normal control. That if you find that the Defendant did the acts alleged by the State of Arkansas, and if you find that the Defendant was so under the influence of liquors, then you will mitigate the punishment for his acts because of his drunkenness in accordance with the degree of drunkenness at the time.”


author: George Rose Smith, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Leon FLAKE et al
    5-6231
    495 S.W. 2d 855
    Opinion delivered June 4, 1973
    [Rehearing denied July 9, 1973.]

      Thomas B. Keys and James N. Dowell, for appellant.

      Thomas J. Bonner, for appellees.
   George Rose Smith, Justice.

The appellees own two parcels of land, used as a parking lot, at the intersection of Scott Street and Bridge Street (actually an alley) in Little Rock. In 1971 the Highway Corhmission, in the process of replacing the Main Street bridge across the Arkansas River, began the construction of a ramp within the Scott Street right of way. The raised ramp was designed to (and now does) occupy Scott Street for about two thirds of the appellees’ frontage along that street.

The landowners,., contending that the value of their land would be diminished by their partial loss of direct access to Scott Street, brought this suit to recover compensation for the damage to their property. This appeal is from a decree awarding the plaintiffs $15,000 in damages. The Highway Commission argues several points for reversal, but we need consider only the contention that the suit is actually against the State and is therefore prohibited by Article 5, § 20, of the Constitution of 1874.

Ordinarily the Highway Commission, as an agency of the State, cannot be sued. Ark. State Highway Commn. v. Nelson Bros., 191 Ark. 629, 87 S.W. 2d 394 (1935). Our cases, however, recognize a clear-cut distinction between the position of the landowner whose suit succeeds in stopping the Highway Commission’s project before the damage has occurred and the position of the landowner who delays his suit until after he has been damaged. As we said in Bryant v. Ark. State Highway Commn., 233 Ark. 41, 342 S.W. 2d 415 (1961):

“The suability of the Highway Commission was considered in a series of decisions closely following the Nelson Brothers case. In Ark. State Highway Comm. v. Partain, 192 Ark. 127, 90 S.W. 2d 968, it was held that where the Commission was threatening to take private property without making any provision for compensation, the landowner was entitled to enjoin the Commission from taking the property until an amount sufficient to cover the damages had first been deposited in court. Such an injunction, restraining the commissioners from acting illegally, was not regarded as a prohibited suit against the State. But where the landowner stood by and permitted the Commission to take, occupy, and damage his lands, he could not maintain an action against the Commission to recover his damages, for such a coercive proceeding would constitute a suit against the State. Federal Land Bank of St. Louis v. Ark. State Highway Comm., 194 Ark. 616, 108 S.W. 2d 1077; Ark. State Highway Comm. v. Bush, 195 Ark. 920, 114 S.W. 2d 1061.”

Whether the taking or the damage has yet occurred determines whether the landowner’s suit is timely. In the Partain case, supra, where, as here, there was damage to land not actually taken, the suit was in time, because the plaintiff acted before the Commission started construction. By contrast, other neighboring landowners who intervened in Partain’s suit after the damage had been done were too late, for their intervention was a suit against the State. Ark. State Highway Commn. v. Kincannon, 193 Ark. 450, 100 S.W. 2d 969 (1937). We have indicated that the taking occurs when the owner gan no longer use his land for its normal and natural purposes. State Highway Commn. v. Holden, 217 Ark. 466, 231 S.W. 2d 113 (1950). In an analogous county case the landowner waited too long when he stood by and permitted “substantial road work” to be done. Miller County v. Beasley, 203 Ark. 370, 156 S.W. 2d 791 (1941). Our holdings were summarized in the Federal Land Bank case, supra:

“Appellant had, therefore, the right to prohibit the Highway Commission, or any other agency of government, from taking its property until compensation had been paid. It was so expressly held in the case of Arkansas State Highway Commission v. Partain, 192 Ark. 127, 90 S.W. 2d 968. But if the property owner fails to assert this right and permits the state to take and occupy his property before compensating him, he may not thereafter coerce compensation by retaking the property from the possession of the state. He must thereafter trust the state to deal fairly with its citizens. He then has no other remedy.”

In the case at bar the landowners undoubtedly waited too long before they made any effort to prevent the construction of the ramp. The suit was filed on April 20, 1971. Counsel for the plaintiffs, knowing that the project was about to begin, instructed the witness Barnes to examine the site on that date. Barnes testified that holes were being drilled in the pavement on Scott Street, but patrons of the parking lot continued to use the street for a period of ten days to two weeks. A highway department engineer, who kept a daily log, testified that barricades were erected on Scott Street on April 20 and that construction began on April 23. A photograph indicates that the street was completely obstructed by the middle of May. Work on the ramp continued without interference and was virtually complete and in use by the public when the case was tried in June and July of 1972, more than a year later.

The appellees’ original complaint was deficient, for it asked that the defendant. Commission be enjoined from proceeding with the work “until the defendant has commenced a suit in which the plaintiffs’ damages may be ascertained and awarded.” In the Bryant case, supra, we held that a complaint seeking precisely that coercive remedy against the Highway Commission was a suit against the State and therefore not maintainable.

On May 17, after the plaintiffs’ access to Scott Street had been blocked, the complaint was amended to assert the cause of action allowed by the holding in Partain, “that the defendants be enjoined from commencing or proceeding with the proposed construction . . . until the plaintiffs’ damages have been paid, or provision for payment made.” On August 4 the trial court sustained a demurrer to the complaint and dismissed the case, as a suit against the State. We reversed that decree, because the complaint, standing alone and making no reference to the commencement or progress of the .work, did state a cause of action under Partain. Flake v. Ark. State Highway Commn., 251 Ark. 1084, 476 S.W. 2d 801 (1972).

It is apparent that, under our decisions, the appellees’ position is untenable. The denial of their access to Scott Street, which is the injury complained of, occurred not later than the middle of May, 1971. Yet, as. far as the record shows, they did not even request the chancellor to stop the progress of the work until more than a year later. No injunctive order was actually entered until after the june, 1972, hearing, at which time the construction work was virtually complete. Thus the trial court’s award is in fact a money judgment against the State for a past injury, which is prohibited by our Constitution as construed in the cases cited.

Counsel for the appellees, perforce' conceding that “the award may appear to conflict with prior decisions of this court,” nevertheless insists that the landowners’ inability to sue the State involves a denial of due process of law. We cannot agree. Sovereign immunity was a common law doctrine that originated centuries before the Fourteenth Amendment was adopted. It still exists in many forms. In the Bryant case, supra, we considered and rejected the same arguments that are now presented by the appellees. We are urged to overrule that decision, but we think it to be sound.

Reversed and dismissed.

Byrd, J., dissents. '


author: Lyle Brown, Justice.

text:
    Ernest B. BAILEY v. STATE of Arkansas
    CR 73-22
    495 S.W. 2d 150
    Opinion delivered June 4, 1973

      Floyd J. Lofton, for appellant.

      Jim Guy Tucker, Atty. Gen. by: James W. Atkins, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

This is an appeal from a Rule I hearing in which appellant was denied relief. Six points are listed for reversal, not one of which was listed in his petition. He never amended his petition. We are asked to treat the petition as amended to conform to the proof. We cannot agree to such procedure. We have many times held that the allegations for relief under Rule I must be stated in the petition or amendments thereto. The latest case is that of Fleschner v. State, 253 Ark. 58, 484 S.W. 2d 342 (1972), where we said:

The basis of this complaint [point on appeal] was not asserted among the several allegations contained in appellant’s pro se petition for post conviction relief. Ark. Stat. Ann. (1971 Supp.), Criminal Procedure Rule I, p. 107, (H) provides: ‘All grounds for relief available to a prisoner under this rule must be raised in his original or amended petition’. Nor can a ground for relief which is available to a petitioner be raised for the first time on appeal. Orman v. Bishop, 245 Ark. 887, 435 S.W. 2d 440 (1968); Credit v. State, 247 Ark. 424, 445 S.W. 2d 718 (1969); Ballew v. State, 249 Ark. 480, 459 S.W. 2d 577 (1970); Carney v. State, 250 Ark. 205, 464 S.W. 2d 612 (1971).

We have no way of knowing why appellant did not amend his petition. We point out that.the context of his pro se petition shows appellant to be knowledgeable; and further, that his attorney was appointed more than thirty days prior to the Rule I hearing-, thus of course allowing ample time within which to amend the petition.

The three points listed in the Rule I petition were inadequacy of counsel, no advice of rights at the time of arrest, and handwriting exemplars being taken without his consent.

On the first point appellant based his plea of inadequacy of counsel on the fact that a twenty-one year sentence was imposed, and that his counsel should have asked for an appeal or should have requested a suspended sentence. When those assertions were made in the testimony, the court explained that his trial counsel had nothing to do with the length of the sentence. (Incidentally, appellant was sentenced as an habitual criminal.) Of the other assertions on the first point, petitioner’s counsel conceded that they were outside the area of the trial attorney’s responsibility and the presence of the trial attorney at the hearing was waived.

The second allegation is that appellant was not advised of his rights at the time of arrest. Officer Kitchens testified that when appellant was taken into custody, Kitchens advised appellant of his rights and that appellant signed a waiver. The officer added that appellant was drinking at the time of arrest but that appellant had control of his mental faculties.

Appellant’s final assertion was that specimens of his handwriting were taken without his consent. His consent was not required. Gilbert v. State of California, 388 U.S. 263 (1967); Williams v. State, 239 Ark. 1109, 396 S.W. 2d 834 (1965); McGinnis v. State, 251 Ark. 160, 471 S.W. 2d 539 (1971).

Affirmed.


author: John A. Fogleman, Justice.

text:
    Johnny REED et al v. Ralph BAKER et al
    73-24
    495 S.W. 2d 849
    Opinion delivered June 4, 1973
    [Rehearing denied July 9, 1973.]

      Wommack if Lineberger, by: Ervin L. Davis, for appellants.

      W. Q. Hall and Murphy, Carlisle if Taylor, for appellees.
   John A. Fogleman, Justice.

Appellants are Johnny Reed, Larry Easterling and Tom Jackson, unsuccessful Republican candidates for the offices of Sheriff, Treasurer and Clerk of Madison County, respectively, at the 1972 General Election. Their contest of the election was dismissed by the circuit court on a pretrial motion of appellees Ralph Baker, Jerry Bollinger and Herbert Haython, the successful Democratic candidates. The motion alleged that the contestants failed to properly swear to the allegations of the complaint. The motion was granted on the basis of the pleadings and depositions filed in the case. Before granting the motion, the circuit judge overruled a general demurrer to the complaint. Appellants contend that the circuit court erred in dismissing the contest. We agree.

In pronouncing judgment, the judge stated that while the complaint contained all the allegations necessary to state a cause of action, the law requiring verification of the complaint carries an implication that a contestant must have a reasonable basis for his belief in the truth of his allegations founded upon his own investigation of the facts. We do not believe that our statutes make this requirement.

I . was revealed through discovery depositions of the contestants taken pursuant to court otder that the contesta'- us had relied entirely upon reports of investigators acting in their behalf, along with other hearsay, for the essential allegations of their complaint. None had personal knowledge of any of the facts, and actually became aware of some errors in these allegations before the hearing. The depositions did disclose that the contestants verified the complaint before the notary public who signed the jurat. The verification read as follows:

We, the undersigned plaintiffs, state on oath that we have read the above and foregoing Election Contest Complaint and the facts and allegations contained therein are true and correct to the best of our knowledge, information, and belief.

Appellees do not seriously contend that the complaint does not state a cause of action or that the form of the affidavit of verification or the observance of formalities required in connection with its execution was in anywise deficient. Their motion was directed to the disclosures in the discovery depositions revealing that neither of the appellants knew how any of the voters named in their complaint voted, that it is not shown to what extent appellants were informed of facts by their investigators, and that appellants were riot really able to say that the results of the election would be changed by eliminating the votes they alleged were illegal. Thus, say appellees, the contest is reduced to a fishing expedition on which the court is called to recanvass the results of the election.

As previously indicated, we do not agree with the argument of appellees or the holding of the circuit court in this regard. The pertinent statutory requirement of the present Election Code is set out by Ark. Stat. Ann. § 3-1001 (Supp. 1971). Insofar as applicablé here, it reads:

A right of action is hereby conferred on any candidate to contest * * * the certificate of vote as made by the appropriate officials in any election. The action shall be brought in the Circuit Court of the county in which the * * * certificate of vote is made when a county * * * office, * * * is involved, * * * . The complaint shall be verified by the affidavit of the contestant to the effect that he believes the statements thereof to be true, and shall be filed within twenty (20) days of the certification complained of. The complaint shall be answered within twenty (20) days.

It should be noted that appellant Reed testified that he employed an attorney and investigators whom he was willing to trust, that the signers of certain affidavits attached to the complaint and relating facts alleged therein were made by the people whom he knew to be trustworthy and, in conclusion, that he believed, but did not know, the facts stated in the complaint to be true. Easterling testified that he was willing to believe the results of the investigation and that, after reading the complaint, he was fairly well convinced that the facts alleged therein were true and correct. Jackson stated that he had nothing to offer different from the testimony of Reed and Easterling in regard to the facts and that he did not swear that all the challenged electors voted for his opponent, but believed that he alleged that they did.

At the outset, we should say that the procedure for contesting an election for county office is purely statutory, and a strict observance of statutory requirements is essential to the exercise of jurisdiction by the court, as it is desirable that election results have a degree of stability and finality. Article 19, Section 24, Constitution of Arkansas; Ferguson v. Wolchansky, 133 Ark. 516, 202 S. W. 826; Casey v. Burdine, 214 Ark. 680, 217 S.W. 2d 613; Curry v. Dawson, 238 Ark. 310, 379 S.W. 2d 287; Murphy v. Trimble, 200 Ark. 1173, 143 S.W. 2d 534. See also, Terry v. Harris, 188 Ark. 60, 64 S.W. 2d 80. But. the purpose of such statutes is to aid the democratic processes upon which our system of government is based by providing a ready remedy whereby compliance with election laws may be assured and to facilitate, not hinder by technical requirements, the quick initiation and disposition of such contests. Gunter v. Fletcher, 217 Ark. 800, 233 S.W. 2d 242; LaFargue v. Waggoner, 189 Ark. 757, 75 S.W. 2d 235. To that end, statutes providing for contests should be liberally construed. Gunter v. Fletcher, supra; Hailey v. Barker, 193 Ark. 101, 97 S.W. 2d 923; Smith v. Smith, 189 Ark. 997, 75 S.W. 2d 804; Logan v. Russell, 136 Ark. 217, 206 S.W. 131. See Also, Ferguson v. Montgomery, 148 Ark. 83, 229 S.W. 30.

Under our statute, the required affidavit is jurisdictional. See Brown v. Anderson, 210 Ark. 970, 198 S.W. 2d 188; Walton v. Rucker, 193 Ark. 40, 97 S.W. 2d 442; Kirk v. Hartlieb, 193 Ark. 37, 97 S.W. 2d 434. The requisites of an affidavit are that it be a voluntary written statement, sworn to or affirmed before some person legally authorized to administer an oath or affirmation. Kirk v. Hartlieb, supra. Jurisdiction of the case attached when the required affidavit was filed. Walton v. Rucker, supra.

Jurisdictional facts must appear upon the face of the proceedings. Casey v. Burdine, 214 Ark. 680, 217 S.W. 2d 613. Since the affidavit verifying the complaint is jurisdictional, however, the contestee has the right to question its sufficiency as to form and manner of execution, i.e., whether a duly qualified affiant was sworn before the notary public executing the jurat, and whether the person acting as such was actually a legally authorized notary public. Murphy v. Trimble, 200 Ark. 1173, 143 S.W. 2d 534; Brown v. Anderson, supra; Terry v. Harris, 188 Ark. 173, 64 S.W. 2d 324. And this is so, even if the affidavit appears to be sufficient upon its face. Thompson v. Self, 197 Ark. 70, 122 S.W. 2d 182.

Under the former statutes governing primary election contests, it was required that a complaint be supported by the affidavits of at least 10 reputable citizens. We held that these affidavits made upon belief of the affiants merely, without setting forth the facts upon which their belief was based, were sufficient to confer jurisdiction and that there was no error in denying a motion to dismiss for insufficiency of these affidavits. Ferguson v. Montgomery, 148 Ark. 83, 229 S.W. 30. There is really no basic difference in the purposes of the former primary election contest statute and the present statute which seems to govern both primary and general election contests, particularly in considering jurisdictional requirements, and many of the cases cited herein are cases involving contests of primary elections. Furthermore, the fact that the primary election statute required the affidavits of 10 persons and the statute now under consideration requires that of the contestant only is immaterial insofar as the question of sufficiency of the affidavit is concerned.

In Matthews v. Warfield, 201 Ark. 296, 144 S.W. 2d 22, we held that the affidavit verifying a contestant’s complaint upon knowledge, information and belief of affiants was sufficient when each affiant signed it in the presence of a notary public, after having read the complaint or having been told its substance and object, with an understanding of the purpose of the affidavit, and the knowledge that he was signing it for the purpose of swearing to it or as a method of affirmation. We held that the trial court erred in granting a motion to dismiss for want of jurisdiction based on allegations that the affidavit was deficient in that some of the affiants signed it without being under oath, without reading or having the complaint read to them and without swearing that the allegations were true. It is not required under the primary election statute that an affiant state the facts upon which his support of the complaint rests, if the affidavit was made upon the belief of the affiant. Logan v. Russell, 136 Ark. 217, 206 S.W. 131. After the primary election law was changed so that verification of a complaint by the contestant only was sufficient, we held that the contestant must personally assert his belief in the truthfulness of the allegations in the presence of the officer before whom his affidavit is subscribed. Thomas v. Hawkins, 217 Ark. 787, 233 S.W. 2d 247. We have not held, or even indicated, that the reasonableness or basis of the affiant’s belief may be inquired into on a challenge of its sufficiency to confer jurisdiction on the court. To do so, would be to extend our previous holdings to make the jurisdictional requirements more strict, rather than less so; and would be in contravention of the purposes of our contest statutes we have so often recognized. In considering whether we should do so, we may consider the history of legislation on the subject to assist us in determining the legislative purpose. LaFargue v. Waggoner, 189 Ark. 757, 75 S.W. 2d 235. When we do so, it seems that the legislative purpose has been directed toward less, rather than more, strict requirements for contesting elections. Former law required a contestant to give and obtain approval of a bond to secure the payment to the contestee and officers of the court of any sums adjudged against him. Ark. Stat. Ann. §§ 3-1210, 1211 (Repl. 1956). No such requirement exists under present law. The time allowed for filing contest for some officers was materially reduced. Cf. Ark. Stat. Ann. § 3-1202 (Repl. 1956), § 3-1001. This seems to call for increased liberality.

We do not feel the inquiry into the basis or grounds of the contestants’ belief in the truth of their allegations was in keeping with the purposes of the pertinent statutes or appropriate to the question of jurisdiction. We find that there was error in the order of dismissal. We certainly do not find this holding to be in anywise conflicting with that in Jones v. Etheridge, 242 Ark. 907, 416 S.W. 2d 306, upon which appellees’ principal reliance is placed, or to permit the launching of fishing expeditions there condemned. The fault in the contestant’s petition in Jones was that it contained only statements of conclusions and generalitites to the effect that illegal votes were cast without any allegations that ány specified vote was illegally cast. We did not mean to there imply that a contestant must base his allegations upon his own direct, personal knowledge. Similar defects voided the complaint in Wilson v. Ellis, 230 Ark. 775, 324 S.W. 2d 513, also relied upon by appellees. Other cases cited by appellees may be similarly distinguished.

We might well forego the discussion of the other points for reversal asserted by appellants, were it not for the fact that this is an election contest and the possibility that the question might again arise in this case after remand. This point has to do with the application of the statutes permitting the taking of depositions for discovery purposes. The argument is primarily based upon the contention that our discovery act, Ark. Stat. Ann. §§ 28-347, et seq. (Repl. 1962), does not apply because, as we have held, an election contest is not a civil action but a special proceeding and not subject to all rules governing civil actions. See Hailey v. Barker, 193 Ark. 101, 97 S.W. 2d 923; Bland v. Benton, 171 Ark. 805, 286 S.W. 976; Davis v. Moore, 70 Ark. 240, 67 S.W. 311. Still, we have considered a contest to be a cause of action. Brown v. Anderson, 210 Ark. 970, 198 S.W. 2d 188.

The act governing depositions specifically states that it is applicable to proceedings in the Circuit, Chancery and Probate Courts of this State. We have held that it did not apply in criminal cases, pointing out that the terminology of the deposition act was not consistent with that normally used in criminal cases and the legislature’s failure to indicate that it should apply to criminal cases. We cannot make the same distinction here and point out that the act’s application is not restricted to “civil actions” but is extended to “proceedings,” a term comprehensive enough to encompass special proceedings such as election contests. Under the Civil Code, a civil action is an ordinary proceeding in a court of justice by one party against another for the enforcement or protection of a private right or redress or prevention of a private wrong. Every other remedy is a special proceeding. Ark. Stat. Ann. §§ 27-106, 107 (Repl. 1962). We als'o point out that there is nothing in our present Elecdon Code to indicate that the general statutes relating to depositions should not apply. The code, Ark. Stat. Ann. §§ 3-1001, et seq., does not specify procedures after the institution of the contest. Previous procedural acts, such as Ark. Stat. Ann. § 3-1206 (Repl. 1956), governing the taking of depositions were repealed. We find no indication of a legislative intent that Ark. Stat. Ann. §§ 28-347, et seq., have no application in election contests. There is an implication in Davis v. Moore, supra, that procedures prescribed by election contest statutes govern only when there is a pertinent statute. In the absence of a specific provision in the contest statute, it would be impossible to proceed without resort to rules governing civil procedure.

We do not share appellants’ fear that permitting the taking of discovery depositions will frustrate the overriding purpose of expeditious disposition of contest cases so clearly indicated by requiring the convening of special terras to hear the case and the adjournment of conflicting courts and permitting the calling in of judges on exchange or naming of special judges. Ark. Stat. Ann. §§ 3-1002, 1003. See also, Bland v. Benton, 171 Ark. 805, 286 S.W. 976. We are confident that circuit judges, in the exercise of judicial discretion, will not permit the taking of such depositions as a dilatory tactic. Judicial application of procedural rules in election contests must not be so strict as to afford protection to fraud which would set the will of the people at naught, nor so loose as to permit the acts of sworn officers chosen by the people to be inquired into without adequate and well defined cause. Lafargue v. Waggoner, 189 Ark. 757, 75 S.W. 2d 235. The deposition act itself specifies that the court in which an action is pending may prohibit the taking of a deposition, limit the place, time and manner of its taking, the extent of the examination or “make any other order which justice requires to protect the party or witness from annoyance, embarrassment or oppression.” Ark. Stat. Ann. § 28-352 (Repl. 1962). This provision certainly vests the trial court with discretion to control the taking of discovery depositions, and attempts to use the procedure for delay would certainly be oppreásive to a contestant, to say the least.

The judgment is reversed and the cause remanded for further proceedings.


author: J. Fred Jones, Justice.

text:
    SOUTHLAND THEATERS, Inc.-Arkansas, v Joy Twin Theaters, Robert LUNDRY and Any and All Other Employees v. STATE of Arkansas, ex rel. Jim Guy TUCKER
    73-18
    495 S.W. 2d 148
    Opinion delivered June 4, 1973

      Judith Rogers and, of Counsel, Frierson M. Graves Jr., Memphis, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Lonnie A. Powers, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

This is an appeal by South-land Theaters, Inc. — Arkansas, Joy Twin Theaters, Robert Lundry and other employees, from a judgment of the Pulaski County Circuit Court, Criminal Division, enjoining the appellants from operating the Joy Twin Theaters in Pulaski County, Arkansas, and abating the operation of the theater and premises, as a public nuisance.

The facts appear as follows: On May 4, 1972, the prosecuting attorney in Pulaski County filed a petition in the criminal division of the circuit court, against the appellants in this case, to abate the operation of the theater as a nuisance under Ark. Stat. Ann. §§ 34-[ XXX-XX-XXXX ] (Repl. 1962 and 1964). The petition alleged the exhibition of specifically titled and designated obscene moving picture shows in violation of Ark. Stat. Ann. § 41-2729 (Supp. 1971). The record on appeal in the case at bar, was not filed in this court until January 23, 1973. In the meantime, on August 30, 1972, the prosecuting attorney filed a similar petition against the same parties in the Pulaski County Chancery Court alleging that the showing of the films constituted a nuisance and should be enjoined pursuant to § 34-101. The petition was granted by the chancellor in that case and the appeal from the chancellor’s decree was submitted in this court while the appeal in the present case was still pending. Our opinion in the chancery case was delivered on April 9, 1973, Southland Theaters, Inc. v. State, 254 Ark. 192, 492 S.W. 2d 421, and our opinion in that case is determinative of the issues raised in the case at bar. In our opinion in the chancery case, we said:

“We find no merit in the appellee’s argument that the exhibition of the films may be abated as a public nuisance under the provisions of Ark. Stat. Ann. § 34-101. The only pertinent language in that statute has to do with the operation of ‘roadhouses and similar places of entertainment’ in violation of law. The statute is penal and must be strictly construed. Mini-Art Operating Co. v. State, 253 Ark. 364, 486 S.W. 2d 8 (1972). When so construed, the statutory reference to roadhouses and similar places of entertainment cannot be interpreted to include motion picture theaters.”

There is little material difference in the chancery case and the case at bar. The chancery case was in the nature of a civil action brought under the provisions of § 34-101 the pertinent portion of which, reads as follows:

“. . . [T]he conducting, maintaining, carrying on, or engaging in the operation of any so called roadhouses or other similar places of entertainment, or of any so called tourist camp, or of any public dance hall or place, or of any nudist camp or club or building or place used to practice nudism, in violation of any of the laws of this State, and all means, appliances, fixtures, appurtenances, materials and supplies used for the purpose of conducting, maintaining, or carrying on of either of such unlawful or unlawfully operated businesses or occupations or practices or places of business or occupation or practice, are hereby declared to be public nuisances, and may be abated under the provisions of this Act. ...”

In the case at bar the state alleged the violation to be under Ark. Stat. Ann. § 41-2729 (Supp. 1971) which provides as follows:

“Hereafter, it shall be unlawful for any person knowingly to exhibit, sell, offer to sell, give away, circulate, produce, distribute, attempt to distribute, or have in his or her possession any obscene film.”

This statute then defines “person” to mean any individual, partnership, firm, association or club, corporation or other legal entity, and the penalty for violation is fixed by § 41-2731 as a fine of not more than $2,000 or imprisonment for not less than one year nor more than five years, or both such fine and imprisonment. Mere possession constitutes a misdemeanor under § 41-2731 and is punishable by a fine of not more than $1,000 or imprisonment in the county jail for a period not to exceed one year, or both such fine and imprisonment.

In the case at bar the state alleged that the conduct and activities of the appellants constituted a public nuisance under Ark. Stat. Ann. § 34-101, supra, (as alleged in the chancery case), and also constituted a nuisance under Ark. Stat. Ann. § 41-3207 (Repl. 1964) which provides as follows:

“The operation of a house of ill fame, a bawdy house, a disorderly house or any house for the purpose of assignation or prostitution in this state to which men and women resort for the purpose of prostitution or lewdness, is hereby declared to be a public nuisance, detrimental to public morals and may be abated under the present provisions of law for the suppression of public nuisances.”

Apparently the state equates the theater in this case with “so called roadhouses or other similar places of entertainment” (emphasis added) under § 34-101; and also takes the position that men and women resorted to the theater involved in this case for the purpose of lewdness, thus bringing the theater within the definition of “public nuisance” and subject to abatement as such, under § 41-3207, supra. It will be noted, however, that both statutes specifically define the houses referred to therein and obviously do not refer to, or include, movie theaters where lewd films are shown, and as pointed out in the above quote from our opinion on April 9 in the chancery court, case, penal statutes must be strictly construed.

The appellee calls attention to our decision in Vandergriff v. State, 239 Ark. 1119, 396 S.W. 2d 818, and State, Ex Rel. Atty Gen. v. Karston, 208 Ark. 703, 187 S.W. 2d 327, wherein we approved the abatement of gambling houses as public nuisances. But as pointed out in Karston, the operation of a gambling house is not only a felony under our statutes, but gambling houses were public nuisances under the common law. No such rule applies to theaters.

While we recognize that in recent years the floodgates have been opened wide to the flow of obscene materials, including moving picture film, into the stream of interstate commerce, we are not impressed by the testimony of the psychologist who testified for the appellants in the case at bar. This testimony was to the effect that such filmed scenes of sexual orgies described by the witnesses in this case, may be considered as educational and conducive to happy marital relationship when viewed together by normal married couples. We base this opinion, however, on the fact that when the Legislature enacted § 41-2729, supra, with the attending penalties, it did not designate theaters where such films are shown as public nuisances as was done in the unlawful operation of roadhouses, tourist camps, dance halls and nudist camps under § 34-101, and houses of ill fame, bawdy houses, disorderly houses and houses for the purpose of assignation and prostitution under § 41-3207, supra.

We have no alternative, therefore, but to reverse the judgment of the trial court and relegate the state to its remedy provided by Ark. Stat. Ann. § 41-2729, supra, et seq.

Reversed.

Byrd, J., concurs.

      . The witnesses for the state who viewed the films described some of them as depicting acts of sodomy and all forms of sexual perversion and deviation being engaged in by more than two individuals at the same time.


author: Conley Byrd, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Hubert SMITH JR., et al
    73-15
    495 S.W. 2d 147
    Opinion delivered June 4, 1973

      Thomas B. Keys ánd Philip N. Gozuen,.for appellant.

      Lightle, Tedder 6- Hannah, for appellees.
   Conley Byrd, Justice.

The Arkansas State Highway Commission contends on this appeal that the trial, court committed error in allowing the. landowners’ witness to use a sale occurring three years after the taking in arriving at his valuation of the property taken. We do not agree.

The record shows thát the property in question lies at the southern intersection of Highway 67 and Highway 67B. Prior to the taking, the landowners held a total of 40.5 acres with 9.5 acres being north and west of Highway 67 and 31 acres south and east of Highway 67. After the taking, there remains only 3.31 acres in “Y” created by No. 67 and No. 67B and 22.32 acres south and east of the freeway. By this action the Highway Commission took all of the access except seventy feet on the remaining 3.31 acre tract. The 22.32 acre tract is landlocked. All of the witnesses for the landowners described the property in the area as being closely held. Admittedly there were no comparable sales within the immediate vicinity. In testifying to comparables Terrill Huff, an expert witness for the landowners, stated that he considered a sale of property of Ruben Adams to J. W. Southerland on March 5, 1965, at $1785 per acre. He also stated that there was another sale of the same piece of property in July, 1971. At that time the Highway Commission objected on the ground that it was three years after the date of taking. The trial, court permitted the witness to use the subsequent sale at $2,857 per acre for the purpose of interpolating — i.e., to show market value as of the date of taking on July 25, 1968. By this method the witness arrived at a before value of $2000 per acre foi the 9.5 acre tract.

Two. other witnesses for the landowners used the same process without, objection and at least one of the witnesses for the Highway Commission stated that in making his appraisal he considered the Adams to Southerland sale and also the resale.

The Highway Commission now argues that it is common knowledge that the construction of the freeway through that area has caused substantial increases in land values and that the sale was too remote in time. The record here does not show that the highway construction involved has increased land values in general or that the freeway construction eroes bv or affects the 1971 resale of the Southerland tract. On the record here made we cannot say that the trial court erred in admitting the testimony for the purpose stated.

When viewed in the light most favorable to the jury’s verdict, we find substantial evidence to support the award in the amount of $34,637.00.

Affirmed.


text:
    Jeanette Murlene GRAHAM v. Ernest LeeRoy GRAHAM
    73-45
    495 S.W. 2d 144
    Opinion delivered June 4, 1973

      Arnold, Hamilton ¿r Streetman, for appellant.

      James M. Barker, for appellee.
   Conley Byrd, Justice.

Involved on this appeal by appellant Jeanette Murlene Graham Ernest LeeRoy Graham was a resident of this State for the time required by Ark. Stat. Ann. § 34-1208 (Repl. 1962), before obtaining a divorce on May 2, 1972. The trial court ruled that appellee was a resident within the terms of our divorce statutes and hence this appeal.

Ark. Stat. Ann. § 34-1208 provides:

“The plaintiff, to obtain a divorce, must prove, but need not allege, in addition to a legal cause of divorce:
“First: A residence in the State by either the plaintiff or defendant for 60 days next before the commencement of the action, and á residence in the State for three (3) full months before the final judgment granting the decree of divorce. ...”

Ark. Stat. Ann. § 34-1208.1 provides:

“The word ‘residence’ as used in Section 34-1208 is defined to mean actual presence and upon proof of such the party alleging and offering such proof shall be considered domiciled in the State and this is declared to be the legislative intent and public policy of the State of Arkansas.”

Some of the facts surrounding this proceeding are undisputed. The parties hereto separated in Oklahoma. Appellant went to her parents’ home in Missouri. Appellee went to his parents’ home in Walker, Louisiana. Appellee had had no prior connections with Ashley County, Arkansas before making a visit on January 8, 1972. While visiting on that occasion he consulted a lawyer and obtained a form letter explaining the Arkansas divorce laws. He intended to return the next week to establish a residence for the purpose of obtaining a divorce but was prevented from returning at that time because of an industrial accident. As a result of the accident he was hospitalized for six days and had casts on both legs and feet. He was treated at all times By Dr. Allan C. Farries of Baton Rouge, Louisiana. March 30, 1972, appellee caused a divorce complaint to be filed. March 6, 1972, his lawyer wrote the appellant advising her of appellee’s intention to file for divorce and requested her to sign a power of attorney. March 9, 1972, appellant’s Missouri lawyers advised appellee’s lawyer that she did not consider appellee to be a resident of the State of Arkansas and that she would resist the granting of a divorce. March 19, 1972, appellee’s lawyer advised appellant’s Missouri counsel that he would proceed with the divorce. Aftef receipt of notice of the filing of the complaint from the attorney ad litem, appellant through her North Arkansas lawyer on April 14, 1972, wrote the attorney ad litem, with a copy sent to appellee’s attorney, that appellee was a resident of Louisiana and that they were in the process of finding local counsel for her. The attorney ad litem caused the letter from the North Arkansas lawyer to be placed with the files in the clerk’s office. Without any attempt to comply with Ark. Stat. Ann. § 28-353 (2) (Repl. 1962), and before the 30 day time limit for appellant to respond to the complaint had expired, the secretary in appellee’s lawyer’s office on April 17, took the deposition of appellee and his sister Gail Graham. At that time both witnesses swore that appellee had been a resident of the State of Arkansas for more than three full months. The sister also swore that she was a resident of Arkansas. April 25th appellant’s North Arkansas counsel forwarded a demurrer to the clerk of the court. This demurrer, which contained no certificate of service and was filed on April 28th, stated that appellee was not a resident of Arkansas. On May 2, 1972, the trial court without ruling on the demurrer and based upon the evidence contained in the depositions taken by the lawyer’s secretary signed a decree granting appellee a divorce. May 7th appellant’s North Arkansas counsel caused a copy of the demurrer filed on April 28th to be served on appellee’s counsel and on May 15th filed a petition to vacate.

In taking thet deposition of appellee, he stated that he moved to Arkansas on January 29th to establish a residence for divorce purposes. He admitted that both legs and feet were in a cast for sometime and that during part of that time he was in a wheelchair. Admittedly he went back to the doctor in Baton Rouge at intervals, a distance of three hundred miles. He received Workmen’s Compensation checks during the time from January 29th through May 2nd and he cashed them at a bank in Denham, Louisiana, a small town not far from Baton Rouge. While living in Arkansas from January 29th to May 2nd, he stáyed at a motel. His sister Gail Graham stayed with him some on week-ends and Atonia Leah Harris took care of him some during the week. Mrs. Paul Graham and his mother Lorene Graham did not visit him in Arkansas. Mrs. Harris was in the process of obtaining a divorce at the time but he did not know when her divorce became final. He married Mrs. Harris on May 26, 1972, in Walker, Louisiana. He has resided in Walker, Louisiana with his mother since sometime in June, 1972. His receipts show that he rented No. 19, at a motel from January 29th to February 5th; No. 17, from February 5th to February 12th and No. 47 from February 12th through April 29, 1972. He testified that he lived in room No. 11. Appellee in answer to questions such as how long he stayed in room No. 11, how he went back and forth to see the doctor and how often he went back and forth to see the doctor, took the Fifth Amendment on the ground that to answer might tend to incriminate him. Admittedly he did not know anybody in Ashley County other than his lawyer and the lawyer’s son that ran the motel. He testified that Mrs. Harris and his sister Gail Graham lived in Walker, Louisiana during the time here involved. His pickup truck still had Oklahoma licenses on it at the time of taking his deposition.

Appellee’s lawyer testified that appellee contacted him on January 8 th and called him again when he established his residence on January 29th. That the motel where appellee stayed was owned by a corporation which in turn was owned by his wife and two of his sons. He saw appellee at the motel on a number of occasions when he was out there to visit his grandchildren. When asked if he was aware that appellee made trips to see his doctor, the lawyer stated that he was and that there were occasions when he spent several days away.

Notwithstanding that the lawyer testified that appellee was absent for several days on occasion, the lawyer’s son testified that appellee was not absent for any length of time — in other words it was his testimony that appellee was there at all times during the period involved.

Lloyd W. Albright of Alexandria, Louisiana, the manager of State Adjusters, an adjusting agency for Rockwood Insurance Company, testified that according to his records appellee was a resident of Walker, Louisiana during the period involved. He introduced letters written by appellee to his office under dates of February 10, 1972; February 26, 1972; March 10, 1972; April 24, 1972; May 4, 1972 and May 8, 1972, all of which showed a return address to Ernest LeeRoy Graham, Route 1, Walker, Louisiana. One of these letters contained receipts from Lorene Graham, Toni Harris and Mrs. Paul E. Graham showing that each of them has received of Ernest LeeRoy Graham compensation for 16 days from February 10 to February 25, 1972, for constant sitting care at the rate of $1.50 per hour for 8 hours per day. Appellee’s doctor had certified to State Adjusters that full time sitting services were necessary for appellee. The letter of May 4th was a complaint from appellee to State Adjuster’s agent Mr. Benefield saying: “I waited for you to come oh Monday, however, for some reason you did not make it.” Mr. Albright’s records showed that his agents had always contacted appellee in Walker, Louisiana. Mr. Albright also introduced fifteen drafts under dates from 1-26-72 through 5-3-72, which appellee had cashed in Louisiana. The draft dated 3-29-72, was endorsed “Ernest LeeRoy Graham, Okla Lie No. 8239454, Rt. 1, Box 509, Walker, Louisiana.”

In addition to the foregoing, the record shows that Atonia Leah Harris, on March 21, 1972, filed a form complaint for divorce in the same jurisdiction by the same lawyer representing appellee and that a divorce decree was also rendered in her favor on May 2, 1972.

Upon the foregoing record it is rather obvious that appellee was not a resident of the State for the required length of time within the meaning of Ark. Stat. Ann. § 34-1208.1 supra. Appellee not only used Walker, Louisiana as his address when corresponding with the Workmen’s Compensation Carrier but he had to have been there a substantial number of times to cash the fifteen drafts. Furthermore, he used Walker, Louisiana as his address when cashing the drafts.

It is not necessary to allege or show a meritorious defense to set aside a divorce for lack of jurisdiction of the subject matter. See Corney v. Corney, 79 Ark. 289, 95 S.W. 135 (1906), and Feldstein v. Feldstein, 208 Ark. 928, 188 S.W. 2d 295 (1945).

Reversed and remanded.

      The complaint seems to be a form in which the appropriate names and dates are filled out on a typewriter.


author: Frank Holt, Justice.

text:
    Robert HORN v. STATE of Arkansas
    CR 73-42
    495 S.W. 2d 152
    Opinion delivered June 4, 1973

      Don Lampton, Public Defender, for appellant.

      Jim Guy Tucker• Atty. Gen. by: Richard Mattison, Assty. Atty. Gen. for appellee:
   Frank Holt, Justice.

Upon a plea of guilty, appellant received a sentence of 15 years for kidnapping and 15 years for robbery to be served concurrently. He was credited with the time he was in jail awaiting trial. Approximately a year later, he filed his present pro se motion to vacate his sentence pursuant to our Criminal Procedure Rule 1. He alleged, inter alia, that he was denied the effective assistance of counsel. The trial court, pursuant to subparagraph (C) of Rule 1, held in written findings of fact and conclusions of law that the records in the case conclusively show that the appellant was not entitled to. an evidentiary hearing. On appeal the appellant. contends for reversal that the trial court erred in refusing to grant him a hearing on his petition for postconviction relief. ' •

Essentially, áppellant’s pro ■ se • allegations were that his retained counsel repeatedly, told him that upon a trial he would receive 99 years for kidnapping and 21 years for robbery and would, receive additional time inasmuch as he was . charged ' as a habitual, criminal; that these sentences would run, consecutively and there wasn’t anything he (counsel) could do to prevent it; that appellant first refused to plead, guilty because he was innocent.of the alleged crimes; that his attorney “kept pressuring me to take his advice,” and after several conferences that “I was placed in such fear as to be unable to adequately confer and consult with him, due to the Undue pressure brought to bear upon - me by the court and by my attorney;” that his plea of guilty was coerced and improperly induced by his. defense attorney rather than being voluntary; that his defense counsel overreached and improperly pressured him to plead guilty; that his attorney refused to file motions and question illegal procedures, and evidence; and that the trial court failed to-protect the'defendant from the “above mentioned acts of defense counsel and trial prosecutor. . .”

When appellant appeared and pleaded guilty to the alleged offenses as a habitual criminal, a record of the proceedings, was' made. He was accompanied by his retained counsel, Before accepting the • appellant’s plea of guilty, the trial court thoroughly and extensively questioned the appellant with reference to whether his plea was voluntarily made. Actually, the court’s searching inquiries constituted 7 1/2 pages of the transcription of the plea proceedings. Summarizing- appellant’s anwers to the trial court’s inquiries, appellant stated that the trial court had previously read to him the charges pending against him; that he knew the nature of the charges, when they allegedly occurred and acknowledged to the court some of the-circumstances attending them; that he was previously convicted of a felony which invoked the provisions of the habitual criminal statute; that the effect would be to incréase the minimum punishment if found guilty either by the jury or the court; that he had employed his own counsel “sometime back;” that he had had ample time to consult with him; that he had read, understood and signed a “Plea Statement;” that before dong só he had had'time to discuss it with his counsel; that he had no questions he desired to ask the court; that there was no language in the plea statement that needed any explanation; that the court could rely upon what he was representing to the court; that he desired to plead guilty to the charges of robbery and kidnapping; that he had had time to discuss his plea that morning again with his counsel and that his plea was freely and .voluntarily made by him; that the court advised him the processing of his plea was being made a part of the record. Then he told the' court in answer to a specific inquiry that he had nothing to say before the court pronounced sentence.

The “Plea Statement” essentially reiterates the inquiries made by the trial court at the time of accepting the plea. It, also, apprised appellant that he had the right to a jury trial with the burden upon the state to prove his .guilt beyond a reasonable doubt and that by signing the plea statémerit the appellant acknowledges that he had discussed his case fully with his attorney and was “satisfied with his services.” The last paragraph of this document reads:

“I HAVE READ EVERYTHING ON THIS PAPER. I UNDERSTAND WHAT IS BEING TOLD ME, WHAT MY RIGHTS ARE, AND THE QUESTIONS THAT HAVE BEEN ASKED. MY ANSWER IS ‘YES’ TO ALL 5 QUESTIONS. I KNOW WHAT I AM DOING AND AM VOLUNTARILY PLEADING GUILTY BECAUSE I AM GUILTY AS CHARGED.”

It was, also, signed by his counsel to the effect that' he had reviewed the document with the appellant; that to the best of his judgment the appellant understands it and the appellant’s plea of guilty is consistent with the facts related to him by appellant as well as counsel’s own investigation of the case.

We think the language in Robertson v. State, 252 Ark. 333, 478 S.W. 2d 878 (1972), is apt in the case at bar. There we' said:

“According to the record we have summarized, this appellant was given every opportunity to speak out, either in person or by employed counsel, and to raise any possible defense he had to the charges. If he had any such defenses it was incumbent that he raise them. In the face of the record made by the trial court and here summarized, appellant is not entitled at this late date to collaterally attack his sentence.”

See, also, Stallins v. State, 254 Ark. 137, 491 S.W. 2d 788 (1973). Our view is reinforced by the very recent case of Tollett, Warden v. Henderson, 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973), where a collateral attack was made upon a guilty plea rendered upon the advice of counsel. The appropriate language is:

“*##But the Court in Brady and Parker, as well as in McMann, refused to address the merits of the claimed constitutional deprivations that occurred prior to the guilty plea. Instead, it concluded in each case that the issue was not the merits of these constitutional claims as such, but rather whether the guilty plea had been made intelligently and voluntarily with the advice of competent counsel. ....
“We hold that after a criminal defendant pleads guilty, on the advice of counsel, he is not automatically entitled to federal collateral relief on proof that the indicting grand jury was unconstitutionally selected. The focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of antecedent constitutional infirmity. A state prisoner must, of course, prove that some constitutional infirmity occurred in the proceedings. But the inquiry does not end at that point, as the Court of Appeals apparently thought. If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not ‘within the range of competence demanded of attorneys in criminal cases,’ McMann v. Richardson, supra, at 771. . . .
“Thus while claims of prior constitutional deprivation may play a part in evaluating the advice rendered by counsel, they are not themselves independent grounds for federal collateral relief ....
“He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.”

The presumption that counsel is competent is recognized in both our state and federal courts. Davis v. State, 253 Ark. 484, 486 S.W. 2d 904 (1972), Slawek v. United States, 413 F. 2d 957 (8th Cir. 1969). Appellant relies upon our recent decision in Cullens v. State, 252 Ark. 995, 482 S.W. 2d 95 (1972). We do not consider it applicable in the case at bar. There the proceeding attending the plea was not nearly as comprehensive as here.

In the case at bar we note that the appellant is 28 years of age, who is not unfamiliar with court proceedings inasmuch as he was charged and pleaded guilty as a habitual criminal. If the very thorough and painstaking proceedings conducted by the trial court attending appellant’s plea of guilty cannot pass constitutional muster, it is most difficult to see how any plea of guilty cannot be collaterally attacked in a postconviction proceeding requiring an evidentiary hearing upon the mere assertion that a plea of guilty was the result of “undue pressure” and ineffective assistance of counsel.

Inasmuch as we agree with the trial court that appellant’s plea of guilty was freely and voluntarily made and not a result of ineffective assistance of counsel, any other possible defenses asserted in appellant’s petition were waived. Rimmer v. State, 251 Ark. 444, 472 S.W. 2d 959 (1971), Wilson v. State, 251 Ark. 900, 475 S.W. 2d 543 (1972).

Affirmed.

Fogleman, J., not participating


text:
    STATE of Arkansas, Ex Rel Alex STREETT, Prosecuting Attorney v. Leroy STELL et al
    CR 73-29
    495 S.W. 2d 846
    Opinion delivered June 11, 1973
    [Rehearing denied July 9, 1973.]

      Jim Guy Tucker, Atty. Gen., by: Ralph C. Hamner Jr., Asst. Atty. Gen., for appellant.

      Gordon ir Gordon, for appellee.
   Carleton Harris, Chief Justice.

Felver A. Rowell, Deputy Prosecuting Attorney for Conway County, under the authority of Ark. Stat. Ann. § 43-801 (Repl. 1964), issued subpoenas directing certain residents of Conway County, appellees herein, to appear at the office of Prosecuting Attorney Alex G. Streett of the Fifth Judicial District, at Russellville, Pope County, on October 31, 1972, at 1:00 P. M. The subpoenas were issued in furtherance of an investigation of "vote buying” in Conway County. The subpoenas were placed in the hands of the Conway County Sheriff and were served on appellees in that county. When those subpoenaed failed to comply, the Prosecuting Attorney filed Informations in the Municipal Court of Pope County on the aforesaid date, charging appellees with violating Ark. Stat. Ann. § 43-805 (Repl. 1964).

Warrants of arrest were issued by the Municipal Judge of Pope County and appellees were directed to appear before the municipal court of that county on November 2, 1972. Thereafter, a motion to quash was denied. Subsequently, the Circuit Court of Pope County issued writs of prohibition in the several cases ordering the Municipal Judge of Pope County to desist from any further proceedings. From the order so entered comes this appeal.

The question at issue is whether the prosecuting attorney has the authority under the statute first mentioned to subpoena witnesses in pursuance of an investigation to any county in his district, or whether he only has the authority to subpoena such witnesses to the county wherein the alleged law violations occurred. Pertinent portions of Ark. Stat. Ann. § 43-801 (Repl. 1964) provide as follows:

“The prosecuting attorneys and their deputies shall have authority to issue subpoenas in all criminal matters they are investigating; and shall have authority to administer oaths for the purpose of taking the testimony of witnesses subpoenaed before them; such oath when administered by the prosecuting attorney or his deputy shall have the same effect as if administered by the foreman of the grand jury.”

It is the argument of the prosecuting attorney that his authority to subpoena is district-wide, i.e., he can subpoena witnesses from any county in the district to appear at his office in Russellville, Pope County, while appellees argue that the prosecuting attorney only has authority to subpoena witnesses to the same county where the offense occurred.

Let it be said at the outset that the case of The First National Bank in Little Rock v. Russell C. Roberts, Judge, 242 Ark. 912, 416 S.W. 2d 316, the only case cited by appellant in his brief, is not at all in point. There, the prosecuting attorney began an investigation into alleged vote buying in Faulkner County during the 1966 General Election. Pursuant to this investigation, the Prosecuting Attorney for Faulkner County obtained a subpoena for the First National Bank in Little Rock (or its duly authorized representative) to appear before him in the Faulkner County Courthouse, bringing certain records. The point at issue in the present litigation was not presented in that case, but it will be immediately noted that the witness (representative of the bank) was directed to appear before the prosecuting attorney in the same county where the alleged vote buying took place. In other words, the situation in First National Bank would be analogous, in the present instance, to witnesses from outside the district being subpoenaed to appear before the prosecuting attorney in Conway County to testify about the alleged criminal offenses in Conway County.

Perhaps it would be well to examine the reason for the passage of Act 160 of 1937 (§ 43-801). In 1936, the people of this state, by the adoption of Constitutional Amendment No. 21, gave prosecuting attorneys the power to initiate criminal charges by the filing of an Information (as well as by indictment by a grand jury). Prior to the passage of that amendment, it was necessary that the prosecuting attorney present all evidence with reference to the commission of felonies to the grand jury, and the charge, or indictment, for an offense could only be brought by the grand jury. Since that time, the great majority of felony cases have been initiated by the filing of an Information by the prosecuting attorney and meetings of the grand jury are much more infrequent. We have recognized that Act 160 of 1937 (§ 43-801), giving the prosecuting attorney the authority to subpoena witnesses for the purpose of conducting an investigation to determine if there was sufficient evidence to merit the filing of an Information, was enacted as a matter of supplanting, to a degree, grand jury investigations. See Taylor v. State, 220 Ark. 953, 251 S.W. 2d 588, where this court said:

“Constitutional Amendment No. 21, giving the prosecuting attorneys the power to try offenses on information as well as on an indictment by a grand jury, was passed in 1936 and declaration of adoption was made in the General Assembly on January 12, 1937. The same General Assembly passed Act No. 160 (now Ark. Stats., § 43-801) giving the prosecuting .attorneys and their deputies the authority to issue subpoenaes in connection with the investigation of all criminal matters and to administer oaths. It may be significant that the Act states that such oath shall have the same effect as if administered by the foreman of the grand jury. It may also be significant that the emergency clause recognizes the necessity of the Act is based on. the less frequent meetings bf the grand jury and the necessity of the “prosecuting attorney to subpoena witnesses in order to properly prepare (emphasis ours) criminal cases.”

In Johnson v. State, 199 Ark. 196, 133 S.W. 2d 15, this court said:

“ ‘The prosecuting attorney of a county is a quasi judicial officer. The law has intrusted him with power, upon what he deems sufficient cause, to institute proceedings. He takes the place of a grand jury ***.’ ” (Our emphasis).

Since the act was passed as a means of giving the prosecuting attorney the same investigative powers' possessed by the grand jury, it is only logical that it was the' intent of the legislature to grant the same jurisdictional authority. As an illustration, let us use a hypothetical example. The Eleventh Judicial Circuit is composed of Jefferson, Lincoln and Desha Counties. Does a grand jury in Jefferson County have the authority to investigate a crime that admittedly occurred in Desha County and to subpoena witnesses- from"’Desha County to. appear before it in Jefferson County. To ask the question is but to answer it. Ark. Stat. Ann. § 43-907 (Repl. 1964), enacted as early as 1868 when the General Assembly established the Criminal Code, deals with the scope of. inquiry of a grand jury. It provides:

“The grand jury must inquire—
First. Into the case of every person imprisoned in the county jail, or on bail, to answer a criminal charge in that court, and who is not indicted.
Second. Into the condition and management'of the public prisons of the county. " ’•
Third. Into the willful and corrupt misconduct in office of public officers of every description .in the county.” (All italics ours). ■.

It will be immediately noted that- the authority and jurisdiction of the grand jury in its scope of inquiry extends to, and concerns only, those matters arising in the particular county where the misconduct takes place. Nor is it contended otherwise.

We hold that the authority of the prosecuting attorney to subpoena witnesses for investigative purposes is limited to subpoenaing those witnesses to appear at a place in the county where the alleged offenses', or the matters to be investigated, occurred. . - •

Not only is this the legal manner of conducting such an investigation, but we think also,- that it is the practical manner. Witnesses could well be required to travel great distances, and perhaps at their own .expense. See Ark: Stat. Ann. § 43-2004 (Repl. 1964). In addition, since witnesses have the right to have their attorney present , at such a hearing, and since such attorney would probably be a resident of the witness’ own county, we have the additional expense of taking one’s lawyer to another county. Very likely, a convenient place to take evidence can be furnished at the county courthouse, or if not, at the office of the deputy prosecuting attorney for such county. Thus, on the one hand, dozens of witnesses could be required, possibly at great inconvenience, to travel for many miles, while on the other, hand, only the prosecuting attorney, and perhaps his secretary, are required to travel — with the benefit of an expense account — and in furtherance of the functions of the office.

Affirmed.

      According to the statement of the case, appellees, on the advice of their attorney, did not appear.

      “The failure of any officer to serve such subpoenas and of a witness to appear on the returned date thereof shall constitute a misdemeanor and (be) punishable by fine of not less than $10.00 nor more than $100.00 and by imprisonment in the county jail not to exceed six (6) months, or both such fine(s) and imprisonment.”

       Our emphasis.

      We have held that there is a difference in one respect, viz., a witness appearing-before, the prosecuting attorney has the right to be represented by an attorney while a witness does not have that right before a grand jury. Gill, et al v. State, 242 Ark. 797, 416 S.W. 2d 269.