text:
    Leon Ashworth et ux v. H. C. Hankins et ux
    5-4077
    408 S. W. 2d 871
    Opinion delivered December 12, 1966

      Murphy & Burch, for appellant.

      Putman, Davis & Bassett, for appellee.
   Osro Cobb, Justice.

On October 18, 1962 appellants brought an equity action against appellees for specific performance of a contract for the sale of certain real property. Both parties resided in Washington County where the subject property was situated. A lis pendens was duly filed by appellants on October 18,1962.

At trial on March 29, 1963, the Court sustained a demurrer to plaintiffs’ evidence and a decree was entered for defendants (appellees here). An appeal was perfected.

Thereafter, on May 24, 1963, while the case was on appeal, appellees executed and delivered for a valuable consideration a deed to the property to one Ollie Tackett. This deed was duly recorded on May 29, 1963.

On November 30, 1964, this Court reversed and remanded the cause, holding that appellants had made a prima facie case for specific performance. Ashworth v. Hankins, 238 Ark. 745, 384 S. W. 2d 254 (1964).

After remand, appellees filed a motion to dismiss appellants’ complaint for want of equity jurisdiction. The motion stated that appellants no longer owned the subject property; that there was no longer any basis for equity jurisdiction, and that plaintiffs ’ complaint should be dismissed without prejudice.

Plaintiffs ’ response was that a lis pendens had been filed; that any grantee of the subject matter took the property with notice and subject to the ultimate outcome of the case, and that the Chancery Court had jurisdiction to either cancel and set aside the deed executed by the defendants or, in the alternative, to award plaintiffs damages.

For reversal appellants contend that the Chancery Court erred in granting appellees’ motion to dismiss.

It is appellants’ position that the Chancery Court (1) had jurisdiction to grant specific performance of the contract and (2) had jurisdiction in the alternative to award appellants damages.

Appellants urge that the lis pendens, filed pursuant to Ark. Stat. Ann. § 27-501 (Eepl. 1962), put the subsequent purchaser on notice and therefore the property was conveyed subject to the outcome of this suit, including appellate review.

■ In the case of Mitchell & Shaw v. The Federal Land Bank of St. Louis, Mo., 206 Ark. 253, 174 S. W. 2d 671 (1943), where a lis pendens was filed, we quoted with approval from'38 C. J. 4 as follows: •

“One ;who acquires from a party an interest in property which is at that time involved in a litigation in a court having jurisdiction of the subject-matter and of the person of the one from whom the interest is acquired, takes subject to the rights of the parties to the litigation as finally determined by the judgment or decree, and is as conclusively bound by the results of the litigation as if he had been a party thereto from the outset.”

The applicable lis pendens statute, Ark. Stat. Ann. § 27-501, supra, states as follows:

“27-501. Notice-Contents-Recording-Effect. — To render the filing of any suit at law or in equity affecting the title or any lien on real estate or personal property constructive notice to a bona fide purchaser or mortgagee of any such real estate or personal property, it shall be necessary for the plaintiff or any one of the plaintiffs, if there be more than one plaintiff, or their attorneys or agents to file for record with the recorder of deeds of the county in which the property to be affected by such constructive notice is situated a notice of the pendency of such suit, setting forth the title of the cause and the general object thereof, * * *.”

Therefore, the purpose of a lis pendens is to put bona fide purchasers or mortgagees upon notice that the title to certain real or personal property is being litigated. See 54 C. J. S. 571, from which we quote:

“It is commonly stated that the doctrine of lis pendens is based on considerations of public policy and convenience, which forbid a litigant to give rights to others, pending the litigation, so as to affect the proceedings of the court then progressing to enforce those rights, the rule being necessary to the administration of justice in order that decisions in pending suits may be binding and may be given full effect, by keeping the subject matter in controversy within the power of the court until final adjudication, that there may he an end to litigation, and to preserve the property that the purpose of the pending suit may not be defeated by successive alienations and transfers of title.”

Litigation is obviously not completed until appellate review is had in cases where appeals are perfected. We therefore hold, and possibly for the first time on this precise point, that the statutory effect of a lis pendens follows the litigation to its conclusion.

We are supported in this rule by case authorities from other jurisdictions. We quote from Stuart, et al v. Coleman, 188 P. 1063 (1920) Okla.:

“Where the law gives a right of review to an appellate court, all persons are necessarily charged with notice thereof, and it would seem reasonable to hold that the operation of lis pendens ought to be adequate to give a litigant protection until he can pursue all the remedies to which he is entitled in the action, and therefore, though a judgment 'or degree final in form has been entered, the cause ought still to be deemed pending while the right to prosecute it further by appeal remains.
“It is also contended that the lis pendens does not apply because the supersedeas bond was not given within the time fixed by the district court of Osage County to stay execution. We do not think there is any merit in this contention. In McClung, et al v. Hohl, 10 Kan. App. 93, 61 Pac. 507, the Supreme Court of Kansas held that the application of the lis pendens statute did not depend upon the filing of a supersedeas bond or other bond, and this court, in State ex rel. Mose v. District Court of Marshall County, 46 Okla. 654, 149 Pac. 240, held that the right of appeal does not depend upon the giving of a supersedeas bond, as the only object and effect of such bond is to stay execution. * * *.”

See also Patterson, et al v. Old Dominion Trust Co., 149 Va. 597, 140 S. E. 810 (1927); also Hart v. Pharaoh, 359 P. 2d 1074 (1961) Okla.

In this case, there was no decree other than of dismissal and no execution could issue. Indeed there would have been no yardstick by which the penal sum of a supersedeas bond could be computed. We find no merit in appellees’ contention as to the necessity of a supersedeas bond to preserve appellants’ rights as to the property pending appellate review.

Appellants also contend that the chancery court had jurisdiction of the case to determine the alternative issue of damages. We agree. In McMillan Feeder Finance Corporation v. Stephens, 240 Ark. 167, 398 S. W. 2d 535 (1966), we reiterated the rule that where an equity court takes jurisdiction of a case involving enforcement of a contract, it does so as to all matters in controversy and may allow damages. See also Askew v. Murdock Acceptance Corporation, 225 Ark. 68, 279 S. W. 2d 557 (1955).

We quote from Corbin on Contracts, Yol. 5A § 1161:

“Independently of codes of procedure and other statutes, it became generally established in the United States that a bill for specific performance would be retained for the assessment of damages, in lieu of the remedy asked, if the bill stated a case that was proper for equity jurisdiction and the only reason for refusal of the decree asked was because performance had become impossible or for some reason inequitable after the filing of the bill or if it had been so prior to the filing of the bill by reason of facts unknown to the plaintiff. The impossibility that has arisen may be due to the wrongful act of the defendant himself, as by making a conveyance to an innocent purchaser for value, but the rule is not restricted to such cases.”

See also Grummel v. Hollenstein, 90 Ariz. 356, 367 P. 2d 960 (1962).

It is now the duty of the trial court to proceed to hearing on appellants’ action for specific performance and if the Court finds that appellants are entitled to such relief but that specific performance is not possible, then it is the duty of the equity court to assess damages, if any may be shown by appellants, as a result of the breach of contract.

The case is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: Guy Amsler, Justice. Paul Ward, Justice,

license: Public Domain

text:
    Virginia Austin v. Kenneth Austin
    5-4074
    409 S. W. 2d 833
    Opinion delivered December 12, 1966
    [Rehearing denied January 23, 1967-]

      James B. Hale and Charles W. Afkmson, for appellant.

      Putman, Davis & Bassett, for appellee.
   Guy Amsler, Justice.

This appeal involves an unusual factual situation and a unique legal question. Appellant Virginia Austin and appellee Kenneth Austin were husband and wife up to some date (not disclosed by the record) prior to August 19, 1964. On that date, in a suit by Virginia Austin against Kenneth Austin, the Superior Court of Los Angeles County, California, entered an order awarding custody of their three minor children to Kenneth Austin with visitation privileges to the mother. Virginia Austin apparently left California and established residence in Fayetteville, Arkansas, while appellee remained in California with his new wife and the children.

In 1965, Virginia, through some method, not revealed by the record, had the minor son, Wendell, with her in Fayetteville, Arkansas, and refused to relinquish custody to her former husband. On August 4, 1965, Kenneth Austin filed a petition for a writ of Habeas Corpus in the Circuit Court of Washington County, Arkansas, (Fayetteville) seeking to have Wendell returned to him. On the same day the Circuit Court, following a hearing, ordered Virginia to turn the child over to Kenneth and required the father to post one thousand dollars in cash to assure the appearance in court of the father and son (on two weeks notice) for further proceedings. Both parties and their attorneys were present at the hearing.

On the following day (August 5th) Virginia Austin filed a petition in this court (Case No. 5-3746) seeking a temporary stay of the Circuit Court order. On the same day this court “stayed” the Circuit Court order, gave Virginia three days to file defense pleading to the petition for writ of Habeas Corpus in Washington County, directed that Wendell (the minor) be immediately returned to his mother and that the Circuit Court transfer the cause to the Chancery Court of Washington County and further “The Washington Chancery Court as soon as possible will have a full hearing, make up a complete record in the case, and enter its considered order regarding the custody of Wendell Austin, a minor, with full right of review by this Court on the part of any dissatisfied party.” The order of this court was filed with the Circuit Clerk of Washington County on August 6, 1965.

On August 5, 1965, Kenneth Austin, after the minor was returned to his mother, made the following notation (by his attorney) on the record of the petition for writ of Habeas Corpus:

“Petitioner (Kenneth Austin) dismisses the above petition without prejudice and withdraws his appearance.
Kenneth Austin
/s/ by Sidney P. Davis, his attorney”

On the same day, according to the evidence, the Circuit Judge noted on his docket sheet “Dismissed at request of plaintiff.”

On August 6, 1965, Virginia filed in the Circuit Court a pleading titled “Answer.” In reality the pleading is an answer and counterclaim in that it seeks affirmative relief. Allegations are that appellee is not a fit person to have custody of Wendell but that appellant is and that appellee is delinquent in support payments under the California judgment. Prayer is for custody of the child, a money judgment, and attorney’s fees. Attached to this pleading is a certificate of service showing that a copy was mailed to the attorney who filed and dismissed the petition for Habeas Corpus for appellee.

On August 10, 1965, the Circuit Court (pursuant to the order of this court entered on August 5th) transferred the case to the Chancery Court of Washington County.

On April 18, 1966, appellee “appeared especially” in the Chancery Court and filed a motion to quash the purported “service of process” alleging “inter alia” that there had been no service on him; that no summons was ever issued or served and that the Chancery Court was without jurisdiction.

On the 19th day of April, 1966, the chancellor, over the objections of appellant, granted the motion and this appeal followed.

We have detailed the dates of events somewhat at length in order that what we conceive to be the law may be understandably applied to the factual situation.

In the Habeas Corpus proceedings Kenneth Austin dismissed his petition before any defensive pleading had been filed by appellant. He had this right under Ark. Stat. Ann. § 27-1406 (Repl. 1962).

A somewhat similar situation was before us in Norton v. Hutchins, Chancellor, 196 Ark. 856, 120 S. W. 2d 358, and we there said:

“As we understand the law a plaintiff has the right to dismiss any suit he has brought either by application to the court or by application to the clerk in vacation to dismiss same. If before he dismisses same a set off or counter-claim has been filed the dismissal will not prevent the defendant from trying the issues rendered in the cross-complaint or counter-claim. It is undisputed that after bringing her suit in Texas she dismissed her suits in Arkansas before the chancery clerk in vacation. Final judgments or decrees had not been rendered in the Arkansas cases at the time she dismissed them. She had the absolute right, therefore, to dismiss them as no cross-complaint or counter-claim had been filed in any of the proceedings.”

In connection with the case at bar we should perhaps inquire into the status of the parties in the Habeas Corpus suit in Circuit Court after the petition was dismissed. We find no Arkansas case directly on point but 27 Corpus Juris Secundum under “Dismissal and Non-suit” § 39 states the general rule as follows:

“Unless defendant has interposed a claim for affirmative relief, a voluntary nonsuit, dismissal, or discontinuance is a final termination of the action, and there remains no cause pending in which a third person may be permitted to intervene, or in which defendant may thereafter file an answer or plea. In the absence of circumstances working an estoppel, a dismissal or nonsuit leaves the situation as though no suit had ever been brought, and it has the effect of an absolute withdrawal of the claim and leaves defendant as though he had never been a party. It carries down with it previous proceedings and orders in the action, and all pleadings, both of plaintiff and of defendant, and all issues, with respect to plaintiff’s claim.”

In stating the rule 24 Am Jur 2d page 61 uses almost the identical wording and both tests cite numerous authorities from other jurisdictions. We have found no case stating a contrary view.

But, says appellant, appellee is in court by virtue of the aforementioned order of this court entered on August 5, 1965. A sufficient answer to that contention is that appellee was never before this court. On petition of appellant this court conducted a “unilateral” hearing and entered an order directed solely to the ‘ ‘ Circuit Court of Washington County” and not to appellee. Neither appellee nor his attorney appeared at the hearing before us and his statutory privilege of dismissing Ms petition in the Washington Circuit Court was neither at issue nor adjudicated.

If the general rule is applied the Circuit Court order of August 10, 1965, transferring the cause to Chancery Court was a nullity. This is true because when the appellee (Kenneth Austin) dismissed his petition for Habeas Corpus, before appellant lodged her plea for affirmative aid, the litigation ended. It is of course understandable that the Circuit Court, when confronted with an unanticipated occurrence, acted with commendable cooperation and ordered the transfer.

If strict rules of procedure were followed we should probably dismiss the appeal. However, the same results are obtained by affirming the action of the chancellor and this is accordingly done.

Ward, J., dissenting.

Paul Ward, Justice,

dissenting. It is my opinion that the Circuit Court had no jurisdiction to dismiss appellee’s petition for a writ of Habeas Corpus under the facts in this case.

(a) On August 4, 1965, the Circuit Judge made an order which in part reads:

“. . . that Virginia Austin be and is given 24 hours or until 2:00 p.m., August 5, 1965, to apply to the Supreme Court of Arkansas for a writ of Prohibition. .

Appellee was unquestionably aware of this order.

(b) Appellant did so apply to this Court on the morning of August 5, 1965, and on the same day we entered an order which reads:

“This cause is remanded to the Circuit Court of Washington County, Arkansas, with directions to transfer the entire cause to the Chancery Court of Washington County; and Virginia Austin is given three days to file defensive pleadings to the writ of Habeas Corpus.”

As is shown hereafter, this order was brought to the attention of the Clerk of the Circuit Court, the attorney for appellee, and the Circuit Judge on August 5, 1965. This is shown by the testimony of appellee’s attorney at pages 40-41 of the record. There it is shown that all the above mentioned parties were in the Clerk’s office when the contents of our order was made known to them.

(c) On the occasion above mentioned (after the contents of our order was made known, and before 2:00 p.m. of that day) appellee was allowed to dismiss his petition.

It is my position that, in view of the above facts, the Circuit Court had no power or jurisdiction to do anything except to transfer the cause to Chancery Court in accordance with our specific order. Until our order was made known to the Circuit Court, jurisdiction of the cause was in this Court. The learned Chancery Judge was aware of this fact and found that the cause was “remanded to the Circuit Court and immediately upon that remand the Circuit Court became invested with full and complete jurisdiction of the cause.”

I disagree with the Chancellor as to the words emphasized above. It is my opinion that the Circuit Court was invested only with the power which our order gave him — to transfer the cause to Chancery Court.

It follows from what has been said that appellee was a party to the Chancery proceeding and it was not necessary to give him further notice.

Therefore I would reverse the decree of the Chancery Court.


author: Guy Amsler, Justice.

text:
    Pat Titsworth et al v. Hon. Melvin E. Mayfield, Judge
    5-4112
    409 S. W. 2d 500
    Opinion delivered December 12, 1966
    [Rehearing denied January 16, 1967.]

      Clifton Bond, for appellant.

      Brown, Compton & Prewett, for appellee.
   Guy Amsler, Justice.

A local option election was held in Calhoun County, Arkansas, on November 3, 1964, and the certified vote showed 1,118 for and 1,128 against the manufacture and sale of intoxicating liquors.

A petition contesting results of the election was filed in the County Court of Calhoun County on November 17, 1964, by Jack Ethridge, et al (contestants). A response to the contest petition was filed on November 27, 1964, by Pat Titsworth, et al (contestees below and petitioners in this court). An amendment to petition for contest was filed on November 27, 1964, and response to the amendment was filed on December 11, 1964.

On August 6, 1965, following a hearing, the County Court entered its order declaring the results of. the election to be in accord with the above figures on votes cast.

On February 2,. 1966, the contestants, by their attorney, filed a “Notice of Appeal,” “Designation of Becord,” and “Bond for Costs,” as provided by Ark. Stat. Ann. § 27-2106.1 (Bepl. 1962), for appeals from the Circuit, Chancery and Probate Courts to the Supreme Court of Arkansas.

The contestants did not file a prayer for appeal to the Circuit Court of Calhoun County from the order of the County Court as required by Ark. Stat. Ann. § 27-2001 (Supp. 1965). Nor did they file an affidavit stating that the appeal was being taken because the appellants verily believed that they were aggrieved, and not taken for vexation or delay, but that justice might be done them. No order of the County Court of Calhoun County or of the Circuit Clerk of Calhoun County as required by law was entered within six months of the entry of the order appealed from granting the contestants an appeal to the Circuit Court.

On March 30, 1966, the contestees, Pat Titsworth, et al, filed their motion to “dismiss appeal” in the 'County Court; on April 6, 1966, the contestants, Jack. Ethridge, et al, filed their response to motion to “dismiss appeal,” and on the same date the County Court entered its order providing, “That Contestants sub-. stantially complied with appeal procedure, that in order, for a determination to be made of all issues in this cause by a court of record and of competent jurisdiction the record in this cause should be transferred to the Circuit Court of Calhoun County, Arkansas.” The Court directed the County Clerk to transfer the entire record in the cause, including the motion to dismiss the appeal and the response thereto, to the Circuit Court, and to obtain the receipt of the Circuit Clerk for said proceedings.

On April 8, 1966, the contestees, Pat Titsworth, et al, (petitioners here) filed their motion to dismiss appeal in the Circuit Court objecting to the jurisdiction of the Circuit Court “to hear and determine said election contest appeal.” On May 6, 1966, the contestants filed their response to the motion to dismiss appeal in the Circuit 'Court, and a hearing on the motion was held in the Circuit Court on July 8,1966. On July 12, 1966, affidavit and prayer for appeal from the County Court order of August 6, 1965, was filed in the Circuit Court, pursuant to an order of that court. On July 14, 1966, the Circuit Court entered its order overruling the motion to dismiss appeal and this petition for writ of prohibition followed.

Petitioners here contend that the respondent, trial court, is without jurisdiction and should be prohibited from hearing the appeal from the County Court because contestants (below) failed to perfect an appeal from the County Court order within the time and in the manner required by Ark. Stat. Ann. § 27-2001, supra.

Contestants do not contend that the requirements of the statute governing appeals from the County Court were complied with. They say however that there was “substantial compliance” and further maintain that their transgressions and tardiness should be forgiven because the disability of their attorney (not their counsel now) produced an unavoidable casualty for which they should not be held responsible.

The case presents a legal rather than a factual question hence we are in a position to dispose of the litigation through prohibition. Norton v. Hutchins, Chancellor, 196 Ark. 856, 120 S. W. 2d 358; Murry v. Maner, 230 Ark. 132, 320 S. W. 2d 940 (1959).

Even if it be conceded that contestants’ attorney was incapacitated they would still be confronted with an insurmountable jurisdictional barrier. Bearing in mind that no affidavit for appeal was ever filed in the “County Court,” where the contest originated and that an order of the County Court attempting to grant an appeal was not entered until April 6, 1966 (some sixty days beyond the six months allowed by statute for appeals from the County Court), we need only review a few of our prior decisions to determine the result of this controversy.

In the early case of Speed v. Fry, 95 Ark. 148, 128 S. W. 854, this court dealt with a statute regulating appeals from the probate court which required an order granting the appeal. Justice Hart authored the opinion and wrote:

“The record shows that J. C. Speed filed an affidavit and prayer for appeal in the usual form to .the circuit court, but it does not show that the probate court made an order granting the appeal. This was necessary in order to give the circuit court jurisdiction....
“This court has held that the appellee may waive the want of an affidavit for appeal in the circuit court by failing to move to dismiss.... The reason is that the affidavit and prayer for appeal is a regulation for the sole benefit of the appellee. But the order of the probate court granting the appeal is a prerequisite to the right of the circuit court to exercise jurisdiction, and for that reason can not be waived.”

Justice Wood in Tuggle v. Tribble, 173 Ark. 392, 292 S. W. 1020, dealt with the l’aw on appeals from the County Court with this language:

“Under the above statute, and our decisions, it is essential to the jurisdiction of the circuit court that an appeal be granted by the county court or by the clerk of the circuit court, and it is error for the county court to make an order granting the appeal until the party aggrieved shall have filed with the clerk of the county court an affidavit as prescribed in the statute. The statute contemplates that the affidavit and prayer for appeal shall he filed in advance of any order made by the court or the clerk, as the case may be, in order that the court or the clerk, before ordering the appeal, may have an opportunity to ascertain whether or not the affidavit complies with the statute. The filing of an affidavit under the statute above is not jurisdictional, because it may be waived in the circuit court, and is waived, where the party against whom the appeal is sought does not, in the circuit court in limine, move to dismiss the appeal before taking any substantive or affirmative steps in the cause. ’ ’ See also Mississippi County v. Moore, 126 Ark. 211, 190 S. W. 110 (1916); Woollard v. Circuit Court of Crittenden County, 222 Ark. 287, 258 S. W. 2d 886 (1953).

Vesting of jurisdiction in the Circuit Court in this cause would necessitate our overruling a long line of decisions which we decline to do. The Circuit Court is without jurisdiction and the petition for writ of prohibition is granted.


author: Hugh M. Bland, Justice.

text:
    Wilburn Davis v. State of Arkansas
    5196
    411 S. W. 2d 531
    Opinion delivered December 12, 1966
    [Supplemental opinion on rehearing delivered February 27, 1&67, 242 Ark. 43.]

      R. L. Wommack and 8am Montgomery, for appellant.

      Bruce Bewnett Attorney General; H. Clay Robmson, Asst. Atty. General, for appellee.
   Hugh M. Bland, Justice.

The appellant was charged by information with the crime of false pretense [Ark. Stat. Ann. § 41-1901 (Repl. 1964)]. Omitting the formal parts, the information is as follows:

“The said Wilburn Davis and Robert E. Butler in said Washington County, State of Arkansas, on or about the 3rd day of March, 1965, did unlawfully and feloniously obtain a cheek in the sum of $1,000.00 for an insurance premium payment from Mrs. H. Scott-Tucker by falsely, fraudulently, feloniously and designedly stating to Mrs. H. Scott-Tucker that they were authorized and licensed agents for the Southern Union Life Insurance Company of Little- Rock, Arkansas, and that an insurance policy would be issued to her by the Southern Union Life Insurance Company of Little Rock, Arkansas; that the said Wilburn Davis and Robert E. Butler then and there well knowing that their statements were false and were made with a felonious and fraudulent intent to cheat and defraud the said Mrs. H. Scott-Tucker out of the said $1,000.00, and that the said Mrs. H. Scott-Tucker relied upon, believed and acted upon said false representations aforesaid, and she was then and there fraudulently and feloniously deprived of her said property by the said Wilburn Davis and Robert E. Butler, which property was in the vaiue of $1,000.00.”

The cause came on for trial on the 27th day. of October, 1965. The codefendant, Robert Butler, was not tried but testified as a state’s witness. Appellant was found guilty and his punishment was fixed at three years in prison.

. Following his conviction, appellant filed a motion for An Arrest of Judgment and subsequently a motion for a new trial. Both motions were overruled and this appeal followed.

Appellant claimed that he was appointed as a field representative of Williams Insurance Agency who had a general agent’s contract with the Southern Union Life Insurance Company to sell hospitalization insurance. On or about the 3rd of March, 1965, appellant and Butler went to the home of Mrs. Scott-Tucker near Lincoln, Arkansas. Butler gave his brief case containing brochures, applications, receipts and other insuranee information to Davis and remained in the ear while Davis went into the home of Mrs. Scott-Tucker. Appellant represented to Mrs. Scott-Tucker that he was representing Southern Union Life Insurancle Company, obtained from her her policy and he copied certain information from the policy onto an application for insurance. He represented himself to her as being Bill Williams and advised her that Southern Union Life Insurance Company was building a huge rest home at Fayetteville, Arkansas and as soon as they got the rest of the money the building would begin. He further represented to Mrs. Scott-Tueker that it would take a thousand dollars for the premium and that she would receive services in the rest home for the rest of her life. Mrs. Scott-Tucker gave him her check book and he wrote out a check in the sum of $1,000.00 payable to Southern Union Life Insurance Agency which was endorsed and cashed by Butler. $250.00 of this money was given to Bill Williams as the net to the company. The commission, being 75 percent or $750.00, was divided between appellant and Butler. After Mrs. Scott-Tucker demanded that her money be returned, a Mr. Ludlow returned $250.00 and then another $100.00 was returned to her through Mr. Ted 'Coxsey. The balance of the $1,000.00 has not been returned.

For reversal the appellant sets out seven separate points with three subsections under the first point. We believe that we can summarize the contentions of the appellant without unduly lengthening’ this opinion. His main contentions, and the only ones that are briefed, are that the information is insufficient to support the charge of false pretense; there is a material variance between the allegation in the information and the state’s proof; there is no substantial evidence of intent to defraud; the court erred in overruling motion for arrest of judgment; the court committed prejudicial error by its comments to appellant’s counsel and to the witness, J. C. Kelly; that the court erred in permitting evidence of other fraud committed by the appellant; and the court erred in refusing appellant’s requested instructions No. 4 and No. 8. We will not attempt to discuss these under each separate head.

SUFFICIENCY OF INFORMATION. The only effort on behalf of appellant to challenge the information in this case was by a motion for arrest of judgment filed after conviction. The Arkansas Statute establishing the crime of false pretense [§ 41-1901] does not apply to a false statement concerning a future event. Conner v. State, 137 Ark. 123, 206 S. W. 747 (1918). The information contains one factual allegation of a promise to perform an act in the future, i. e., the allegation that the appellant promised that the insurance company would issue an insurance policy but the basic false statement allegation in the information is that the appellant pretended to be an insurance agent of the Southern Union Life Insurance Company of Little Rock, Arkansas when in fact he was not. That statement is of a present fact and not a future event and, consequently, constitutes the crime of false pretense. The Supreme Court of Kansas had this situation before them in State v. Handke, 340 P. 2d 877 (Kan. 1959). In that case the defendant was in the house-building business and represented to the Pankeys that he was building certain houses at that time and that he would take their money ($3,000.00) and purchase materials with which to build them a house as soon as he could get the material together. The information so charged. The court held that even though the defendant may have made false representations as to future promises or events, he would not be relieved if he also made false representations as to existing or past acts. Representations as to future events may be considered along with existing or past facts and it is not necessary to prove that all representations alleged were actually made or that they were all false.

In State v. Smith, 324 S. W. 2d 702 (Mo. 1959) the substance of the false representations charged in the indictment was that the defendant represented to Mrs. Smith that the electrical wires and system of her house were defective and that her house was in danger of burning down unless she did something about it and that he had attached a list of materials in performance of work he did. The court stated that the rule is that where an information charges several false pretenses, evidence of one false pretense constituted in law an offense and will support a conviction. “There need be only one false pretense, and though several such pretenses are set out in an indictment, yet if any one of them is proved, being such as truly amount in law to a false pretense, the indictment is sustained.”

The trial court specifically instructed the jury that false statements, to constitute the crime of false pretense, are required to be of past or existing facts and not future facts or events. [Instructions 4, 5 and 6.] We see no merit in appellant’s contention that the information is insufficient.

' MATERIAL VARIANCE IN PROOF AND INFORMATION. A fatal variance is a failure to prove material allegations contained in the information. In other words,.it is a failure of proof. Clemons v. State, 150 Ark. 425, 234 S. W. 475 (1921). In this case there is no substantial variance in the proof and the information. The allegation that the insurance company would construct a rest home would not properly charge a false pretense because it concerned a future event. In Kerby v. State, 233 Ark. 8, 342 S. W. 2d 412 (1961) the appellant maintained that his conviction should be reversed because the court had permitted the prosecution to present testimony concerning misrepresentations of future events. The court ruled:

“The appellant’s second contention is that the court erred in permitting the prosecution to prove Kerby’s misrepresentations about matters relating solely to the future, such as the statement that the stock would increase in value within a year. It is conceded that the record contains sufficient evidence of misstatements of existing facts to support a conviction, but the appellant insists that the references to future events should have been excluded altogether.
This contention is not sound. It is true that misrepresentations relating solely to the future do not constitute an offense. Conner v. State, 137 Ark. 123, 206 S. W. 747. It does not follow, however, that such proof must be excluded from the jury’s consideration if it is otherwise relevant. Here the testimony was relevant, as it assisted the jury in understanding all the circumstances surrounding the sale of the stock. As we said in Baker v. State, 4 Ark. 56: ‘All the authorities concur, that the intention and design of the party are best explained by a complete view of every part of his conduct at the time, and not merely from the proof of a single and isolated act or declaration.’ In its charge to the jury the court adequately protected Kerby’s rights by an instruction which explained that the false representations ‘must be representations of the existence of some fact or facts.’ ”

So, we see no merit in this contention.

We see no merit in appellant’s contention that there is no substantial evidence of intent to defraud. This is a matter for the jury to consider under proper instruction. Even if the entire sum of money had been returned, it would only be a factor in the determination of whether or not there was an intent to defraud-at the time he received the money from Mrs. Scott-Tucker. There is ample testimony in the record that the appellant made the false statement that he was an agent of the insurance company and would have an insurance policy containing rest home benefits issued to Mrs. Scott-Tucker, all of which was introduced. There is substantial evidence to. support the conviction. Certainly Mrs. Scott-Tucker would not have delivered $1,000.00 to the appellant for an insurance policy if he had not stated that he was an authorized agent of the company that was going to issue the policy.

We see no merit in appellant’s contention that the court committed prejudicial error by its comments to appellant’s counsel and to the witness, Kelly. In Tuttle v. State, 83 Ark. 379, 104 S. W. 135, the court said to counsel:

“You can reduce them to writing hereafter and not take up the time of the court. Your exceptions are noted. This is not a backwoods justice-of-the-peace court, and I will not take up the time of the court with such questions.”

In this case it developed that Mr. Sam Montgomery, an attorney for the appellant, had talked to Mrs. Scott-Tucker during the noon recess and on cross-examination was asking her about the conversation and the court said:

“I don’t know what you were doing talking to the State’s witness, during the noon hour. Did you have Mr. Coxsey’s permission— .* * * You are supposed to ask the other side’s permission. You should tell the other side if you are going to talk to their witnesses.
MR. MONTGOMERY: I presumed he saw me there and I didn’t know there was any rules.
THE COURT: I don’t know anything about this procedure, but that is the customary procedure in this area. If you are going to talk to their witnesses and they don’t object, why, you can go ahead.”

While interrogating the witness Kelly he was asked what he knew about the transaction and his answer was: “If I.can ever get a chance to talk, yes.”

“THE COURT: Now, young man, I’m running this Court and don’t you ever say that again. The Court will make the rulings and you will abide by them. Don’t yoii pop off about my rulings, do you hear me, sir?”

We do not think these remarks by the court were prejudicial or affected the verdict of the jury in any way. In Tuttle v. State, supra, the court said:

í í There a reciprocal duty between court and counsel to treat each other with fairness, courtesy and consideration. And this duty is not less upon the court than it is upon counsel.”

The colloquy between the court and counsel and the witness, Kelly, is not in accord with orderly trial procedures, but we do not believe it was prejudicial. We are convinced that the verdict of the jury was responsive to the evidence and was uninfluenced by any remarks of the court.

The appellant complains of the instructions of the court. We have carefully examined these instructions and find no error. The instructions fairly state the law and in our opinion are more favorable to the appellant than to the state.

Finding no error, the judgment of the circuit court is affirmed.

[Supplemental opinion on rehearing delivered February 27, 1967, 242 Ark. 43.]


author: Hugh M. Bland, Justice. George Rose Smith, Justice,

text:
    City of Helena et al v. John H. Barrow et ux
    5-4067
    408 S. W. 2d 867
    Opinion delivered December 12, 1966

      W. G. Dinning Jr. and David Solomon, for appellant.

      Daggett & Daggett and John L. Anderson, for appellee.
   Hugh M. Bland, Justice.

This is an appeal from the Phillips Chancery Court overturning the Helena City Council’s refusal to rezone the lots of the appellees from Residential District B to Commercial District C. The property involved is the home of appellees ’ located on the northwest corner of the intersection of Perry and Columbia Streets in Helena. Perry Street runs east and west as does Porter Street; Columbia Street runs north and south.

In 1957, after public hearings by the Helena Planning Commission and City Council, a zoning ordinance was adopted and this established four districts: Residential A, Residential B — Multiple Family Dwellings, Commercial C and Industrial D. The dividing line between the B Residential and C Commercial Districts runs westward in the middle of Perry' Street in front of appellees ’ property to the alley in the middle of the block and then turns south away from appellees’ property down the alley.

The entire north side of Perry Street, about four blocks in depth northward and beginning two blocks east of appellees’ property and westward for several miles, is residential. In the half block immediately across from appellees’ property is located a Kroger Store and the other half of the block, being the west half, is residential. In the west half of the block east of the Kroger Store and south of Perry Street are residences and on the east half of this block is the First Baptist Church. On the corner of the block south of Perry Street and a block west of appellees ’ home is a doctor’s office which was in existence at the time of the adoption of the ordinance and another proposed doctor’s office is on the west end of this block. The rest of this block contains residences. On the south side of Perry Street west of this last mentioned block nothing exists but residences except for several non-conforming uses sevblocks west which were in existence at the time the zoning ordinance was adopted.

Perry Street from the point in front of appellees’ property for some distance is one way for westbound traffic and this is Highway No. 19 which feeds or receives the traffic from the one-way street.

Appellees, in 1963, attempted to have their home rezoned Commercial since they had given an option to sell to D-X Sunray for the erection of a filling station. This was rejected by the Planning Commission and City Council. Then in January, 1965, appellees again petitioned the Planning Commission that their lot be changed to C Commercial. This application was rejected by the Planning Commission as being spot zoning. At the same meeting the Planning Commission recommended a larger area be made commercial which would include appellees ’ property and 32 other lots. This larger area would run east and west 132 feet north of Perry Street to Poplar Street, then go a quarter block south of Porter Street and east one and one-half blocks to the alley parallel to Columbia Street, the present west boundary of the Commercial zone. Doctor Barrow presented the recommendation of the larger area to the Council and did not pursue his own request for his individual lot to be rezoned Commercial and which had been rejected.

After a public hearing and a joint meeting with the Planning Commission, the City Council rejected the recommendation of the Planning Commission and refused to rezone the larger area as Commercial.

The parties are not in dispute as to the facts. After the last refusal appellees filed this suit against the City of Helena and the other property owners were allowed to intervene. The cause was heard by the court on September 28 and 29, 1965, and concluded on October 20, 1965. On February 3, 1966 the chancellor rendered a lengthy opinion, made extensive findings and held the action of the City Council to be arbitrary and unlawful in refusing to rezone appellees ’ property to C Commercial. From this decree appellant and intervenors bring this appeal relying solely on one point:

“The Chancellor’s findings are contrary to the preponderance of the evidence, and the actions of the City Council of Helena were not arbitrary and unlawful. ’ ’

Dr. John Barrow testified, in substance: Since I bought the property the Commercial Zone has been placed, to the Alley west of Columbia Street, — the Mississippi River Bridge had not been built. At the time I bought my home the Arkansas Grain Corporation, Arkansas Power & Light Company Plant, Arkansas Chemical Plant had not been built and Perry Street was a two-way street. The Kroger Super Market had not been built, nor had the M-C Drug Store. The Shell Station had not been built, and the Texaco Station had not been built along Columbia Street. The Federal Building had not been built nor had the First Federal Savings and Loan Building. Dr. Berger had not built his clinic at Beech and Perry Streets. The traffic passing by my house seemed to have increased a great deal, and this is objectionable since there is a stop light at the corner and the heavy trucks have to shift gears, which causes a vibration as well as noise day and night. Oil trucks seem to make more noise. The Kroger Store has created more traffic and activity in front of my house, and they load and unload trucks early in the morning, which is noisy. The new Shell Station is one block south of my house. There has been a gradual encroachment of more buildings, businesses, traffic and litter by my house, and there are hitchhikers because of the stop light. It is not desirable for my family and me to occupy it as a home. There has been considerable change in my community since I bought it, as it is changing from a good residential area to one more suitable for commercial property, and I feel that my house has no value as residential property any more. There are hitchhikers on the corner, and since I am out at night, I am apprehensive about my wife and children living there, and more apprehensive than when I bought the home.

Jerdy Lambert Jr. testified, in substance: Since its organization in 1955, I have been Secretary of the Helena Planning Commission and keep its records. [Witness then detailed the efforts of Dr. Barrow to have his property rezoned.] I have been in the real estate business since I have been out of service in 1952 and handled all types of property, but in the past five years have handled more rural property. From my knowledge and experience I believe that the use to which the Barrow property could best be put was commercial. I personally wouldn’t want to live there. I don’t think that it is resalable as residential property, as it is on U. S. 49 with lots of heavy trucks going-past. The trend of commercial growth is west because of the geography of the community. The Biver is on the East and the North is a substantial residential area. The South is largely industrial. I have not examined the Barrow property and would hesitate to put a value on it as residential property, but in my opinion it is not desirable as residential property. Traffic is a factor in Dr. Barrow’s property not being suitable as residential. Other factors are its proximity to Kroger’s and this is one of the main streets leading out of town. These are all the factors affecting my opinion. From Perry to Walker Street and College to Franklin surrounding the north of the Barrow property there are nothing but residences or multiple dwellings, and no businesses. These residences are good. In my opinion the rezoning of Dr. Barrow’s property will not affect adversely these residences any more than the present Kroger Store does.

Joe C. Brady testified, in substance: I am Manager of the Helena Cotton Oil Company and Delta Fertilizer Company. These businesses are on the south side of town, off of Highway No. 49. Helena Cotton Oil Company processes cotton seed, and it is the largest mill in Arkansas. In the 1964-65 season we processed 88,000 tons of cotton seed, which comes to our mill mostly by trucks, but some by rail. Of these, 22,750 tons came from below Helena, which would not come by Dr. Barrow’s property, and 2,198 tons by rail, which would not, but the balance of 63,000 tons would have come within a block of his house. The loads would average 11.8 tons per truck, and would be of all types of vehicles from 5 ton loads to as large as 22 ton loads. To leave Helena these trucks would go out Perry Street past Dr. Barrow’s property. In 1954 we processed 57,000 tons.

C. Y. Barnes testified, in substance: I am a Bealtor living in Little Bock, Arkansas, and am a real estate consultant and a certified real estate appraiser and belong to a number of Associations connected with my profession. I examined the records of the Helena Planning Commission and have gone over the areas involved. I obtained maps and familiarized myself with Dr. Barrow’s property, and I am thoroughly familiar with Helena and the surrounding territory. In my opinion as Helena grows, the commercial growth will continue and extend many blocks past the present approximate limit of the commercial area, which would be either Beech or Poplar Streets. The trend is for commercial growth of a community to follow the communities general growth, which Helena has been required to do by topography and other factors. In this the residential area growth grows first and then follows the commercial area. In my opinion the Barrow property is located in a transitional neighborhood, which is one which formerly had a residential character, but because of the development in the community has reached commercial character. In my opinion if the community is going to continue to grow and keep up with the times, the Barrow property and that surrounding it should be rezoned commercial uses, and not to rezone the Barrow property is not based on sound planning principals. If the proposed line of zoning is adopted to the rear of the Barrow property and a filling station was placed on the Barrow property, I do not think that it would have too much effect on the residences to the north end of that half block because of the' buffer value of the vacant lot in between. Spot zoning is zoning of an area as an island. If the Barrow lot is zoned commercial, this would not be spot zoning since it isn’t an island, but would be an extension to the currently existing zoning area. I think that growth would follow as the Barrow property is rezoned for commercial purposes. In my opinion there is a commercial need for the future growth of the community to rezone the Barrow property, and there would be no detriment to the property owners immediately north of the area.

A number of residents of the neighborhood testified in opposition to the rezoning. F. L. Thompson, who lives just west of Dr. Barrow’s property in one of the historic old homes of Helena, objected strenuously that it would increase traffic and noise. Clancy King, who lives in Waverly Woods, Mrs. Retta G-. Solomon who lives at 726 Columbia Street, Mrs. Henry H. Bightor who lives at 720 Beech Street, Mrs. H. M. Houston who lives at 715 Beech Street, Beverend H. H. Bightor Jr. who lives at Owing Mills, Maryland but owns property just north of Dr. Barrow, objected to the rezoning. O. D. Butterick, who lives at 623 Beech Street with his wife, objects to rezoning Dr. Barrow’s property since it would decrease the value of his property.

The members of the Planning Commission testified that they rejected the rezoning because they believed it to be spot zoning.

In a case of this kind the chancellor should sustain the city’s action unless he finds it to be arbitrary. No matter which way the chancellor decides the question, we reverse his decree only if we find it to be against the preponderance of the evidence. City of Little Rock v. Garner, 235 Ark. 362, 360 S. W. 2d 116 (1962).

The evidence clearly establishes that Dr. Barrow’s property is on the periphery of an established business district. The testimony is that the commercial growth of the city is now and inevitably will in the future be westwardly. The city administrative authorities have recognized this by granting petitions for commercial use of property in the residential area in the vicinity of the Barrow property, i. e., the Etoch and Ooolidge lots and the Bell lot. They also proposed a plan to rezone a larger area, including the Barrow property.

In the landmark case of City of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 883, we held:

“* * * As the size of the business district grows, it ceases to be a residence district to that extent within the purview of the zoning ordinance, and any attempt on the part of the city council to restrict the growth of an established business district is arbitrary. When a business district has been rightly established, the rights of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as business property. It is the contention of the protestants that residence property adjacent to a business district becomes, on that account, less desirable for residence use. Conceding this to be true, and it is undoubtedly true, in a sense, that property thus located is not as desirable as residence property, it demonstrates the right of owners of'borderline property between residence and business district to use their property for either purpose. In other words, if it become less desirable for residence property because of its proximity to the business district, they have the legal right, without interference, to use it for business purposes. ’ ’

This is the rule of law governing this case and has been cited and reaffirmed in the following eases: McKinney v. City of Little Rock, 201 Ark. 618, 146 S. W. 2d 167; City of Little Rock v. Bentley, 204 Ark. 727, 165 S. W. 2d 890; City of Blytheville v. Lewis, 218 Ark. 83, 234 S. W. 2d 374; City of Little Rook v. Joyner, 212 Ark. 508, 206 S. W. 2d 446 and City of Little Rock v. Garner, supra. The above cases have similar fact situations and are analogous with the facts in the case at bar.

In City of Little Rock v. Faith Evangelical Lutheran Church, 241 Ark. 187, opinion delivered October 17, 1966, it was said:

“It is not likely, in any rezoning case, that a solution could be reached which would afford complete equity and satisfaction to all parties. As in other matters, the welfare of all concerned must be taken into consideration. We stated in Downs v. City of Little Rock, 240 Ark. 623, 401 S. W. 2d 210: ‘The composition of the entire area must be taken into consideration, and it is undisputed that both the area to the west of Beechwood for several blocks, and the area north of Markham and Beechwood for a similar distance are completely residential. The benefit to a few individuals cannot be allowed to override the best interests of the residents of the overall area. The Planning Commission has apparently spent long hours in rezoning property in the city of Little Rock with the view of establishing a long-range program, one that will best fit the needs of an expanding city in future years.’ ”

After all, the chancellor had the opportunity to hear and observe the witnesses and was in a better position to evaluate their testimony than we are.

Prom a review of the entire record in this case we cannot say that the decree of the chancery court is against the preponderance of the evidence. The decree is, therefore, affirmed.

Affirmed.

George Rose Smith, J., concurring.

George Rose Smith, Justice,

concurring. I am compelled to concur in the result for precisely the same reason that I have stated in Arkansas State Highway Commission v. Jerry, also decided today.


author: El. F. McFaddin, Justice,

text:
    James Dean Walker v. State of Arkansas
    5186
    408 S. W. 2d 905
    ORDER PER CURIAM
    [Original opinion delivered October 31, 1966, p. 300.]
   El. F. McFaddin, Justice,

(dissenting in part.) On October 31, 1966, this Court delivered a unanimous Opinion affirming the judgment of conviction of the Trial Court in this case. In due time a petition for rehearing was filed, which, in the alternate, prayed for permission to proceed under Criminal Procedure Rule No. 1. The per curiam of this Court this day delivered denies a rehearing in the case. I agree with the Majority in denying the rehearing.

The said per curiam, however, contains this language: “Permission is granted to appellant to file a petition in the Trial Court under Criminal Procedure Rule No. 1 for hearing on the question only of suppression of the evidence of Mary Louise Roberts and Linda Ford .... The hearing and all proceedings thereafter shall be conducted in accordance with Criminal Procedure Rule No. 1.” I see no reason whatsoever for allowing any proceeding in the Trial Court under Criminal Procedure Rule No. 1, and it is from that portion of the per curiam that I dissent.

This Criminal Procedure Rule No. 1 was promulgated by this Court on October 18, 1965, and Paragraphs A and B of that rule read:

“(A) A prisoner, in custody under sentence of a circuit court and whose case was not appealed to the Supreme Court, claiming a right to be released, or to have a new trial, or to have the original sentence modified on the ground:

(a) that the sentence was imposed in violation of the Constitution and laws of the United States or this State; or
(b) that the court imposing the sentence was without jurisdiction to do so; or
(c) that the sentence was in excess of the maximum authorized by law; or
(d) that the sentence is otherwise subject to collateral attack;

may file a verified motion at any time in the court which imposed the sentence, praying that the sentence be vacated or corrected.

“(B) If the conviction in the original case was appealed to the Supreme Court, then no proceedings under this rule shall be entertained by the circuit court without prior permission of this Court.”

It is because of the above quoted portions of Criminal Procedure Rule No. 1 that the Majority is now allowing the appellant to proceed in the Trial Court “on the question only of suppression of evidence of Mary Louise Roberts and Linda Ford . . .” I see no justification for allowing any further proceedings in the Trial Court in this case; and I now state some of the reasons for my said conclusions:

I.

In the first trial of Walker, both Mary Louise Roberts and Linda Ford were witnesses and testified, and their testimony was duly preserved. We reversed the first conviction of Walker and sent the case back for a new trial (see Walker v. State, 239 Ark. 172, 388 S. W. 2d 13); and Walker was retried in 1965. The trial commenced on November 29, 1965, and continued until December 3, 1965. In the course of the trial the State offered the testimony that Mary Louise Roberts and Linda Ford had given in the first trial (Tr. 575-620). The Court allowed this former testimony to be read, after due foundation had been made. Here is the foundation:

(a) The said witnesses were called.
(b) It was shown that subpoenas had been issued for them (Tr. 536).
(c) Before the Court would allow the former testimony to be read there were proceedings in chambers (Tr. 537-572).
(d) Dennis L. Jones, an officer, detailed how he tried to locate Mary Louise Roberts and Linda Ford to serve the subpoenas on them.
(e) Chief Ray Vick testified as to his efforts to locate the witnesses.
(f) Chief R. E. Brians testified as to efforts to locate the witnesses.

After all of the above, the Court ruled (Tr. 557): “I think you have made sufficient proof to comply with the statute. I think you have made sufficient search, but I would rather have the girls here.” So the testimony was read to the jury that was given at the former trial by the witnesses, Mary Louise Roberts and Linda Ford. It was the claim of the appellant (defendant below) at the time that the witnesses could be found, The attorney for the defendant told the Court (Tr. 550): “Judge, they can be seen and found. Linda can be seen at Summerfield and Martin’s Cafe. Her correct address Mrs. Oliver will not give us. That is her mother. But she is definitely here in town and I will prove she has been seen almost daily and almost nightly. She frequents one of those places.”

After the Court allowed the testimony to be read, the attorney for the appellant asked time to get witnesses to offer proof to show that the two missing witnesses were in the jurisdiction of the Court and reasonably available for service. The Court said (Tr. 558): “You should have your witnesses here”; to which the attorney for the defendant responded: “I didn’t know they were going to do this this soon.” The Court then said to counsel: “Do you know where they are, where they can be located? If you do, tell the Court,” to which counsel for appellant replied: “I can prove that nearly every night that one of these places I have told you about, that they can be seen almost nightly. The exact home address, I do not know, but I can prove that they frequent these clubs, and Martin’s Cafe and Summer-field’s Cafe, in particular, and also Jobe’s Cafe in North Little -Rock.”

Now all of this admission of evidence and conversation as above recited transpired on Wednesday, December 1st, because on Tr. p. 654 the record recites that at 4:40 p.m. Wednesday, December 1st, the Court recessed until 9:30 a.m. Thursday, December 2nd, at which time the State resumed offering its evidence in chief. The record does not show that the appellant had ever served any subpoena on either of these witnesses or sought an attachment to have them brought to Court. If the attorney for the appellant knew where either of these witnesses could be found, he had only to obtain a subpoena or an attachment, and have the officer go to the place at the time that the appellant’s attorney said they would be there. There is nothing in the record to show that the appellant did any of this.

Further detailing, at 9:30 Thursday, December 2nd, the State resumed offering its evidence in chief (Tr. 655); at 12:30 noon, December 2nd, the Court recessed until 1:30 (Tr. 749), at which time the State resumed offering its evidence in chief. The State rested its case at 3:15 p.m. on December 2nd (Tr. 826); and the Court then recessed until 9:30 a.m. Friday, December 3rd, at which time the Court reconvened and five pages of the transcript are consumed with motions made by the defendant (Tr. 827-832). The witnesses for the defendant testified (Tr. 832-878). There were the instructions, the argument, and the verdict returned on December 3, 1965 (Tr. 36).

Thus, the appellant had from some time in the. morning of December 1st until December 3rd to obtain a subpoena or an attachment to have these witnesses brought into Court; and there is nothing in the record to show that any such was done or attempted. Rather, in Assignment No. 13 in the motion for new trial (Tr. 40), the appellant complains that the testimony of these witnesses should not have been introduced.

My first point is that the appellant showed absolutely no diligence to get these witnesses and, in the absence of diligence, he would not be entitled to a new trial; and if not entitled to a new trial, certainly he should not be entitled to proceed under Criminal Procedure Rule No.l.

II.

My second reason relates to delay. After our Opinion in this case on October 31, 1966, the appellant filed a petition for rehearing and, in the alternate, prayed for right to proceed under Criminal Procedure Rule No. 1. Here is what the appellant’s pleading says:

“In the alternative and should this Honorable Court deny appellant’s petition for rehearing and the relief herein sought, the appellant respectfully moves the court for permission to proceed under Criminal Procedure Rule No. 1 so that he can collaterally attack his sentence, which is .invalid by reason of the deliberate suppression of evidence by the prosecution and the agencies of state government. In support of said alternative petition, as an exhibit thereto, and as a part hereof as though .set out word for word and line for line herein, is the affidavit in deposition form of the witness Mary Louise Roberts, which affidavit constitutes newly discovered evidence and further proof positive that the State has, did, and still is unlawfully suppressing evidence favorable to the accused so as to entitle the appellant to a hearing in the trial court or a proper tribunal on a motion to vacate the sentence based on the issue of suppression of evidence; that said unlawful suppression of evidence by the prosecution and agencies of government in threatening, intimidating, and by coercion rendering unavailable testimony of a material witness constitutes a denial of due process, and deprived the appellant of a fair and impartial trial in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. This newly discovered evidence was not available to the appellant at or during the course of the trial. ’ ’

To support the statements above copied, the appellant filed in this Court on November 10, 1966, a 35-page question and answer statement of Mary Louise Roberts which was taken on July 11, 1966 between 4:30 p.m. and 5:20 p.m. in the office of the appellant’s counsel. Besides the stenographer and the Notary Public, there were present at the giving of said statement the attorneys for the appellant and R. Eugene Bailey, as representing the witness, Mary Louise Roberts. The appellant had all this information on July 11, 1966, but never mentioned it to this Court until after our decision on October 31,1966. He thus kept his “ace in the hole” until after we had affirmed the conviction and then belatedly attempts to assert some claimed right under Criminal Procedure Rule No. 1. He says that it was “newly discovered evidence.” As previously shown, he exercised no diligence to get this evidence and should not now prevail in this belated effort, after he had chanced the result of his appeal without telling the Court of what he had. This is my second reason for voting to refuse the appellant any right to proceed under Criminal Procedure Eule No. 1.

III.

The third and final reason for my dissent relates to the effect of the delayed recantation. We do not know what Linda Ford would say if she were now called; but the witness Mary Louise Eoberts, in the statement of July 11, 1966, attempted to recant her testimony given in the first trial, in that she gave a version of matters entirely different from that to which she testified in the first trial. In her statement of July 11, 1966, she also said that she would have been at the second trial and would have testified if the officers had not kept her away from the trial. It seems ridiculous to me to expect this Court to believe any such statement when three officers of the law testified that they were trying to find the girl, and the appellant never had a subpoena or attachment issued for her. She was under oath in court when she testified in the first trial. What happened to her in the meantime, we do not know; but because this recanting witness had the effrontery to testify that officers kept her away from the second trial, this Court is now willing to have the Trial Court hold a hearing to see whether such statement is true. If the Trial Court should find the statement to be true, would there have to be a new trial of the whole case ? And on such new trial would her recanted testimony be used against her original testimony? And suppose she should recant again, where would justice be?

We have repeatedly held that the recantation of a witness does not require the granting of a new trial. The matter still rests within the sound discretion of the Court. Little v. State, 161 Ark. 245, 255 S. W. 892; Clayton v. State, 186 Ark. 713, 55 S. W. 2d 88; Sutton v. State, 197 Ark. 686, 122 S. W. 2d 617; Puterbaugh v. State, 217 Ark. 686, 232 S. W. 2d 984; and Hicks v. State, 219 Ark. 528, 243 S. W. 2d 372. We have also held that after the lapse of the term a recantation cannot be used as the basis of a new trial. Satterwhite v. State, 149 Ark. 147, 231 S. W. 886; and State v. Martineau, 149 Ark. 237, 232 S. W. 609.

I do not understand that Criminal Procedure Rule No. 1 changes our holdings in these regards. That rule applies only under the four sub-lettered sections of Paragraph (A) of the rule, as previously quoted. Since after the lapse of the term the recantation could not be used as the basis of a motion for new trial, the sentence of conviction in this case is not subject to collateral attack under our Criminal Procedure Rule No. 1. Yet the Majority is now allowing this ex parte question and answer statement of Mary Louise Roberts, given on July 11, 1966, to be used as a basis for requiring the Trial Court to have a hearing under Criminal Procedure Rule No. 1.1 maintain that we should not allow the appellant to toy with the courts in any such manner. I would deny all right to proceed under Criminal Procedure Rule No. 1; and of course, I would deny any rehearing in this case.

Criminal Procedure Rule No. 1 was promulgated because of some decisions of the United States Supreme Court which have allowed convicted persons to have a further effort to escape conviction. The rule is generally applied to benighted defendants who, without the advice of counsel, were either interrogated or pleaded guilty. Neither of these situations applies here. The appellant was ably represented and, after a full five-day trial below and exhaustive briefs and oral argument on appeal, he now seeks to claim some asserted right under Criminal Procedure Rule No. 1 in an effort to obtain a third trial. I do not understand that Criminal Procedure Rule No. 1 applies in a case like this.

So, for each and all of the reasons herein stated, I respectfully dissent from that part of the per curiam order that allows any procedure under Criminal Procedure Rule No. 1 in this case; and I am authorized to state that Justice Bland joins in this dissent.


author: Carleton Harris, Chief Justice.

text:
    James Lloyd Bostic v. City of Little Rock
    5232
    409 S. W. 2d 825
    Opinion delivered December 19, 1966
    [Rehearing denied January 23, 1967.]

      Harry G. Robinson, for appellant.

      Joseph G. Kemp and Perry V. Whitmore, for appellee.
   Carleton Harris, Chief Justice.

Appellant, James Lloyd Bostic, was convicted in the Municipal Court of the City of Little Rock on March 17, 1966, of the offense of keeping a gambling device. He was fined $50.00 and costs, and the alleged gambling machine was ordered destroyed. Bostic appealed from the conviction to the Circuit Court of Pulaski County, Arkansas, and, on trial by the jury, was convicted and fined $200.00. From the judgment so entered, appellant brings this appeal.

For reversal, appellant relies upon two points, first, that the trial court committed prejudicial error by informing the jury that Bostic had been convicted of the charge in the Municipal Court, and second, that the section under which appellant was convicted, Ark. Stat. Ann. § 41-2003 (1947), does not, in defining gambling devices, include the machine possessed by Bostic. We proceed to a discussion of each point in the order listed.

In acquainting the jury with the nature of the case, the judge of the Circuit Court said:

“This is Case No. 65656, City of Little Rock v. James Lloyd, Bostic. The charge is keeping a gambling device. This defendant was convicted in the lower court and he has appealed, which he has a right to do, and, of course, as he stands before you he is innocent until the City convinces you of his guilt beyond a reasonable doubt. That’s all I know about the case. I don’t know anything about the facts because all that comes over to me is this appeal transcript.”

Appellant objected to this statement by the court, and upon being overruled, noted his exceptions. It is argued that appeal cases are tried anew, in the same manner as if no judgment had ever been rendered, and that the trial court committed reversible error by informing the jury that Bostic had been convicted in the Municipal 'Court; that “the jury’s knowledge of lower court conviction would prejudice them in their consideration of the case.” We do not agree.

In Stanley v. State, 174 Ark. 743, 297 S. W. 826, error was asserted because the trial court permitted the prosecuting attorney, in his opening statement, to mention that the defendant, who was charged with manslaughter, had been previously convicted of the offense about a year prior thereto, but the case had been reversed by the Supreme Court. We held that where the record showed this to be true, there was no error.

Of course, the trial court, in its remarks, gave no opinion as to the guilt or innocence of the accused, and it is that type of comment, i.e., upon the weight of the evidence which this court has held to he improper and prejudicial. Hearn v. State, 211 Ark. 233, 200 S. W. 2d 513, and cases cited therein. Here, the court very clearly told the jury that the defendant stood before them innocent until they were convinced of his guilt beyond a reasonable doubt. We see no possible way that prejudice could have resulted.

The proof on the part of the city reflected that Bostic operated a cafe, in which there ivas a pinball machine. Free games could be accumulated on the machine, and Bostic was observed paying off persons for these games. A button would then be pressed on the bottom of the maching for the purpose of “running off” the games. A witness testified that he won games on three occasions, eighty the first time, two hundred the second time, and five hundred on the third occasion, and was paid by Bostic at the rate of a nickel per game.

Appellant argues that the pertinent statute (41-2003) specifies certain gambling devices, the keeping of which constitutes the offense of keeping a gambling device, but that the pinball machine, here involved, is not included among the prohibited machines. We find no merit in appellant’s contention.

It is true that Act 137 of 1933, as amended by Act 201 of 1939, Ark. Stat. Ann. § 84-2611 (Bepl. 1960), provides that the anti-gambling statutes (including what is presently § 41-2003) “shall not be expanded to include a free amusement feature such as the privilege of playing additional free games if certain score is made on a pinball table and on any other amusement game described in this section.” Thus, merely setting up a machine that gives free games is not a violation of § 41-2003, but there are additional facts in this case, which bring it within the provisions of that stutute, viz, that the free games won on the machine were converted to cash by the proprietor’s paying off these games in money. When this was done, the machine clearly became a gaming device, and appellant was subject to the penalty of the law.

In Albright v. Muncrief, 206 Ark. 319, 176 S. W. 2d 426, we held that teletype machines, operated for the purpose of securing information as to horseracing at different tracks in the United States, the information received then being transmitted to other places in the city where gambling was carried on, became gambling devices within the meaning of our statutes. Of course, a teletype machine is not a gambling device, per se, but it was the use employed which brought the machines within the prohibitory statute. In that case, we said:

“It seems to us that the evil effects flowing from the use of instrumentalities designed for lawful use, when put to an unlawful use, would be just as great as when such machines were designed for unlawful purr-poses. Our lawmakers have gone far in their attempt to suppress the gambling evil and in so doing have given our enforcement officers authority to destroy the tools by the use of which gambling is carried on.”

Under our law, and the facts shown, the jury was justified in finding Bostic guilty of the offense charged.

Affirmed.


text:
    William H. Moore v. Alma M. Moore
    5-4046
    409 S. W. 2d 830
    Opinion delivered December 19, 1966
    [Rehearing denied January 23, 1967]

      Clayton N. Little of Little & Enfield, for appellant.

      Putman, Davis & Bassett, for appellee.
   Carleton Harris, Chief Justice.

Appellant, William H. Moore, instituted suit for divorce against the appellee, Alma M. Moore, alleging general indignities on the part of the appellee. Mrs. Moore filed a genera] denial, and counter-claimed, seeking a divorce on the grounds of general indignities and habitual drunkenness. Both parites sought a division of property rights. The case proceeded to trial, and at the conclusion thereof, the court found that each had established grounds for divorce with sufficient corroboration, but the complaint and counter-claim were both dismissed on grounds of recrimination. The court then found that the alternative prayer of appellee for separate maintenance should be granted, that appellant should not be required to make any monthly support payments to her, but that Mrs. Moore should be entitled to the use and possession of the home owned by the parties near St. Paul, Arkansas, including the personal property located therein; further, that she should be required to account to appellant for one-half of any rents and profits derived from the operation of any profit-producing activities conducted on the property after the deduction of expenses, including mortgage payments, taxes, and insurance. From the decree so entered, appellant brings this appeal.

For reversal, it is first asserted that the trial court erred in permitting the appellee to amend her pleadings on the day of trial to pray for separate maintenance. We do not agree that this constituted error. Under our holdings, permitting amendments lies generally within the discretion of the court, and we will not disturb unless that discretion has been abused. In Austin v. Dermott Canning Company, 182 Ark. 1128, 34 S.W. 2d 773, quoting from an earlier case, we said that the granting of amendments “is to some extent a matter of discretion with the trial court, when the¡; amendment does not change substantially the claim or defense, and this court will not disturb a ruling of the trial court in the exercise of that discretion when it clearly appears to have been observed. ’ ’

Here, the amendment was filed before any testimony was ever taken, and really did not change the nature of the case, i.e., the same proof was offered for the separate maintenance count as for the absolute divorce. Of course, if appellant thought that new issues were being presented, he could have made a motion for continuance, but this was not done.

It is next asserted that the court erred in refusing to grant appellant a divorce, and that this action was clearly against the preponderance of the evidence. Appellant’s proof reflected that appellee had told persons that she had found her husband having relations with the cattle in the barn. The sheriff of Madison County testified that Mrs. Moore had, on one occasion, sworn ont an insanity warrant for appellant, and that he took Mr. Moore to a physician for examination. Following the examination, the doctor released appellant, and he was then released by the sheriff. Appellant asserts that these actions on the part of Mrs. Moore constituted indignities rendering his condition in life intolerable, and he also testified that she nagged him, called him names,, and frequently accused him of being crazy. Relative to her charge of habitual drunkenness, he stated, “I never-touched it during the week because you couldn’t, but on. weekends I used to have a few beers * * * just on weekends.” He said he had “but very little” whiskey and. wine. The witness stated that he had slapped his wife-two or three times, but only after she had slapped him several, times, and accused him of bothering the cattle.

Appellee testified that her husband would come in drunk, and on one occasion threatened her life with a. butcher knife in his hand, struck her on many occasions, and had purchased large quantities of whiskey, wine and beer. “He drank so much wine, and he drank the beer, and he drank the whiskey, too, oh, that whiskey. He has drunk enough to float any boat.” She contended that the allegations about her husband’s indecent conduct were true, and she said that she told this to the neighbors. Wiley Harriman, a witness on her behalf, stated that he had seen appellant when he was drinking, though not drunk, and had smelled alcohol on him, and that on one occasion, Moore did state to him that his (Moore’s) wife was a mean woman. Mrs. May Davis testified that she had seen marks of physical violence on Mrs. Moore, consisting of severe bruises, “black and blue,” and one of appellant’s witnesses stated on cross-examination that Moore called her on one occasion at her home about midnight to see if appellee was at her house, and made the statement that he was through with his wife, that she was just using him, and that he would not take her as a wife for a thousand dollars.

Appellant states that the court was incorrect in its conclusion that the appellee established grounds for divorce, and it is his view that, at any rate, he and his witnesses made out a much stronger case for divorce than did appellee. Accordingly, appellant asserts that the Chancellor’s conclusion that the divorce should be denied because of recrimination is against the preponderance of the evidence. It is his contention that the evidence is not evenly balanced, and that we should, on trying the case de novo, hold that appellant is entitled to the divorce.

Of course, whether the testimony was evenly balanced depends in large measure on just what facts appellant and his witnesses presented that the court believed, and likewise, the facts presented by appellee and her witnesses that the court believed. There was corroboration to some degree of most of the charges made, except the charge of reprehensible and degrading conduct attributed to the appellant by appellee, heretofore mentioned. The very nature of these alleged acts are such that corroboration of what appellee said she viewed would be difficult. We, of course, have no idea as to what the Chancellor believed — or disbelieved. From reading the transcript, one thing appears to be rather definitely established, vis, that neither party was entirely innocent. At least, we cannot say that the Chancellor’s findings to that effect were against the preponderance of the evidence.

We have upheld the denial of divorces on grounds of recrimination. See Martin v. Martin, 225 Ark. 677, 284 S. W. 2d 647, and Narisi v. Narisi, 229 Ark. 1059, 320 S. W. 2d 757, and cases cited therein. In Widders v. Winders, 207 Ark. 596, 182 S. W. 2d 209, the reason for the rule was stated by this court in quoting the words of Lord Ardmillan, found in Bishop on Marriage, Divorce and Separation (Vol. 2, Page 165) as follows:

u * * * j think that there enters inherently and deeply into the contract of marriage an obligation before God and man that the contract shall be faithfully kept by both of tbe contracting parties. Divorce is in my opinion a remedy provided for the innocent party, and is not intended for cases in which both parties are guilty.”

We find no error in the court’s refusal to grant either party a divorce.

The parties, during the period when they were living together, raised broilers for the Brown Hatchery, on a guaranteed per pound basis of $.05. Some of these chickens were being processed at the time the divorce action commenced. The court granted appellee the right to possession of the property, but required that she account to appellant for one-half of the profit of any business venture conducted thereon. It is contended that the court erred in granting her possession of the premises. This home is held as an estate by the entirety, and appellant asserts that each has the right to share, the property. It is stated in the brief, “Appellant has a perfect right to return to the home and live there with appellee.” Under the testimony heretofore set out, we think it apparent that it would be next to impossible for these people to live under the same roof; in fact, under such conditions, violence might well occur (indeed, the testimony reflects that it has already occurred). There was certainly no point in leaving the property vacant, and the court entered an equitable order in requiring that any profits be divided on an equal basis. There was authority to render this ruling. See Cassell v. Cassell, 211 Ark. 489, 200 S.W. 2d 965. In that case, we pointed out that the the decree as to the homestead and its contents did not amount to an order of permanent distribution, and vested no title in the wife. The same, of course, is true here, and, under the circumstances, we think the order was entirely appropriate.

Finding no reversible error, the decree is affirmed.