author: Sidney H. McCollum, Special Justice.

text:
    CITY OF LITTLE ROCK v. Gerald L. BREEDING and John Michael HENDERSON
    80-256
    619 S.W. 2d 664
    Supreme Court of Arkansas
    Opinion delivered July 20, 1981

      R. Jack Magruder, III, City Atty., by; Carolyn B. Witherspoon, for appellant.

      Wright, Lindsey & Jennings, for appellees.
   Sidney H. McCollum, Special Justice.

This is a zoning case wherein the appellees are owners of a certain tract of land located at the southeast corner of Rainwood Drive and Green Mountain Drive in western Little Rock, Arkansas. This tract was annexed to the City of Little Rock a few years ago and by reason of such annexation the tract was by operation of city ordinance placed into “A” One-Family zoning district.

On January 29, 1979, the appellees filed an application with the Planning Commission of the City of Little Rock to rezone the property from “A” One-Family to “F” commercial district. The director and staff of the planning commission reviewed the application and made a recommendation and on February 27, 1979, a hearing was held by the commission at which the commission voted to deny the application. On May 1, 1979, the Board of Directors of the City of Little Rock refused to pass an ordinance granting the appellees’ application for rezoning. Thereafter, appellees filed suit in Chancery Court wherein the Chancellor found: (1) that the property involved was located in an established and expanding business district; (2) that the Board of Directors acted in an arbitrary, capricious and unreasonable manner in rejecting appellees’ application; and (3) the Court went on to decree:

“THEREFORE, the said property is hereby rezoned to “F” Commercial District under the Comprehensive Zoning Ordinance of the City of Little Rock which was in effect on May 1, 1979.”

The City of Little Rock appealed the Chancellor’s decision to the Court of Appeals. There the Chancellor was affirmed. [City of Little Rock v. Breeding, 270 Ark. 752, 606 S.W. 2d 120 (Ark. App. 1980).] This court granted certiorari because of the issues and legal principles involved.

Appellant urges three points for reversal of the Chancellor’s decision: (1) the trial court erred in finding that the appellees’ property was located in an established and expanding business district; (2) the trial court’s finding that the decision of the Little Rock Board of Directors in denying the appellees’ request for rezoning was arbitrary, capricious and unreasonable is contrary to the preponderance of the evidence; and (3) the trial erred in rezoning the property directly by decree.

The property in question is located on the southeast corner of the intersection of Rainwood Drive and Green Mountain Drive approximately two blocks south of Rodney Parham Road in western Little Rock. The property to the west of the property in question, which is across Green Mountain Drive, is presently zoned and is being used for apartments. These apartments begin some two blocks north of this site at Rodney Parham Road and cover all the property down Green Mountain Drive to the site in question and then a little over a block south of the site. The area is actually made up of three different apartment complexes containing more than 700 apartment units.

To the south of the site and immediately adjacent to it, is a parcel of land which has been developed as a mini warehouse complex, which actually consists of small storage units used for storage of personal property. To the east of that property and abutting the. southeast corner of the property in question is a continuation of these storage units which are used primarily for the storage of boats of residents in the nearby apartment complex. Although this property was brought into the city with a non-conforming use existing on the property, it actually is zoned as “A” One-Family. The parties have agreed that it would be more correctly classified as “I” Light Industrial. Immediately south and adjacent to the mini warehouse development is a single family dwelling which has been converted to a day care center for the keeping of children. South of that down Green Mountain Drive are several blocks of single family dwellings or other residential developments.

Immediately east of the site in question is a tract of land that runs approximately a half a block down Rainwood Drive and said tract is zoned “A” One-Family but is vacant. Just east of this adjoining tract is a vacant tract of land that finishes out the block on Rainwood Drive which is zoned “F” Commercial. East of that is a tract of land that is approximately a city block square wihch is zoned as “G-l” Commercial but which is vacant and undeveloped.

Immediately north of the subject property is a tract of land of approximately six acres which is zoned “G-l” Commercial. Actually this is a large tract of land that runs from Green Mountain Drive all the way over to Merrill Drive, or a long city block east and west, and continues up to just south of Rodney Parham Road, which is a distance of approximately two city blocks. The entire west half of this tract although zoned “G-l” has been developed with condominiums or residential type of development. This residential development occupies slightly under half of the block fronting on Green Mountain Drive across the street from the site. The remainder of that tract, most of which is directly north of the site, is vacant. Just north of this site is a “planned unit development” which is owned by the ap-pellees and is planned for a “planned commercial development” made up of commercial and residential properties. At the present time it is vacant.

Immediately north of this tract is a small tract which is zoned “A” One-Family but is being used as commercial development which contains a convenience store, dry cleaners, liquor store and perhaps other small shops. This is located several hundred yards from the site and perhaps as much as two normal city blocks away from the site.

It is well-settled that when we review the decree of the Chancery Court, said decision or holding will be affirmed when the holding is not clearly against the preponderance of the evidence. Rule 52, of the Arkansas Rules of Civil Procedure; See also: Charles M. Taylor v. City of Little Rock et al, 266 Ark. 384, 583 S.W. 2d 72 (1979). However, the question before the Chancellor when a zoning action of the city is challenged is solely whether or not the City acted arbitrarily, capriciously or unreasonably. It has been well-established that such zoning decisions of the city are legislative in nature and that the State Legislature gave to the cities the power of comprehensive planning in classifying the various areas of the city in proper zones. Ark. Stat. Ann. § 19-2804, et seq., and § 19-2825.

In City of Batesville v. Grace, 259 Ark. 493, 594 S.W. 2d 224 (1976), this court pointed out the limited function to be exercised by the Chancellor in zoning cases such as this. In reviewing the Chancellor’s decision that the City Council’s action was arbitrary and capricious, the court pointed out:

“Let it be remembered that this is not an ordinary equity case, but rather involves only the chancellor’s function in determining whether the City’s action in granting, or denying, rezoning was or was not arbitrary, capricious, and unreasonable. In City of Little Rock v. Parker, 241 Ark. 381, 407 S.W. 2d 921, this court said:
‘The right and responsibility for classifying the various areas in the city are with the zoning authorities, and their decision will only be disturbed if it is shown that they acted arbitrarily. (Citation omitted.)
“The sole question before this court on appeal is, ‘Did the preponderance of the evidence before the Chancellor show that the city acted arbitrarily in refusing to rezone the properties here at issue ...?’ While the word, ‘arbitrary,’ has several definitions, probably the most generally accepted one is, ‘arising from unrestrained exercise of the will, caprice, or personal preference; based on random or convenient selection or choice, rather than on reason or nature.’ (Webster’s Third New International Dictionary, 1961.)’

Likewise, in Tate v. City of Malvern, 246 Ark. 316, 438 S.W. 2d 53, we stated:

‘We recently had occasion to recount some fundamental rules of law applicable generally to zoning case. (Citation omitted.) The burden is on the landowner to preponderately show, at the trial level, that the action of the city was arbitrary; on appeal we determine whether the trial court’s finding was contrary to a preponderance of the evidence; home owners who have relied on residential zoning are entitled to consideration and the use of a particular tract may be reasonably restrained so as not to cause them injury; and rezoning cannot be justified solely on the ground that it is necessary to put a particular tract to its most remunerative use.’

This court has ruled that judicial intrusion upon this legislative prerogative violates the constitutional requirements of separation of powers. Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W. 2d 74. In Wenderoth, the court held unconstitutional a statute that purported to give landowners the right of de novo trial in circuit court, as a mode of appeal from municipal building and zoning decisions. The court’s holding in Wenderoth is relevant to this appeal:

‘Therefore, when a city exercises the power conferred upon it by our state legislature, the city is acting in a legislative capacity which is co-equal with the power of the legislature itself. Little Rock Ry. & Elec. Co. v. Dowell, 101 Ark. 223, 142 S.W. 165 (1911). There we said that when a municipality exercised the delegation of this legislative authority, the courts cannot take away the discretion vested in the city’s legislative body.
‘... By this method of appellate review de novo there is attempted to impose upon the circuit court a function of a nonjudicial character in a matter that is exclusively within the discretion and legitimate power of the city’s legislative body. The result would be to substitute the judgment of the circuit court for that of a municipal law-making body. This is contrary to Article 4 of our constitution which prohibits intrusion by the judiciary upon the legislative domain.
‘However, zoning regulations and ordinances are not immune to appellate review. Our chancery courts have the power to grant relief in appropriate proceedings when a zoning ordinance is arbitrary, capricious, or unreasonable. (Citations omitted.) On this restricted basis our chancery courts have reviewed the validity of zoning ordinances. In other words, the enactment of zoning ordinances is a legislative function subject only to appellate review to determine whether the city’s legislative body acted arbitrarily, capriciously, or unreasonably in the enactment of the ordinance.

It has also been well-established that there is a presumption that the city board or legislative body acted in a reasonable manner when they either zone or refuse to zone property and the burden is on the landowner to show otherwise. Economy Wholesale Co., Inc. v. Rogers, 232 Ark. 835, 340 S.W. 2d 583 (1960); Lindsey v. City of Fayetteville, 256 Ark. 352, 507 S.W. 2d 101 (1974).

In Little Rock Ry. & Elec. Co. v. Dowell, 101 Ark. 223, 227, 142 S.W. 165, 166 (1911) the court said:

“It is only an arbitrary abuse of the power which the courts should control; and when the exercise of that power and discretion is attacked in the courts, a presumption must be indulged that the council has not abused its discretion, but has acted with reason and in good faith for the benefit of the public. To proceed upon any other theory would be to substitute the judgment and discretion of the court for the judgment of the members of the council with whom the lawmakers have seen fit to lodge this power.”

From the above citations, we can see that the only question before the Chancellor in this case was whether or not the City Board had acted arbitrarily, capriciously, or unreasonably. To state that in another way, the question is whether there was any reasonable basis upon which the Board could base its ruling or decision. If the Board acted reasonably or had any reasonable basis for sustaining the decision that was made, then its decision should be upheld regardless of whether or not the Chancellor, or this court, agrees with that decision or determines that it is wise or unwise or it is or is not supported by the greater weight of evidence. The decision of what is best for the city or how the city will rezone has been left to the City Council.

The Chancellor in determining that the City’s actions were arbitrary and capricious, relied largely, if not wholly, upon this court’s decision in the case of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883 (1925). This was the case that established the so-called Pfeifer Rule wherein the court stated:

“We are of the opinion that the evidence establishes very clearly and beyond controversy that the locality in question is a business district which has been well established and which is now expanding, the expansion having reached the point where appellees are constructing their building. There is substantial evidence tending to show that the value of some of the adjacent residence property will be depreciated on account of the lessening of the usable value of the property for residence purposes, but we do not think that this affords justification for interfering with the gradual expansion of the business district, which has already been established. As the size of the business district grows, it ceases to be a residence district to the 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 has been pointed out in earlier decisions but should be mentioned here, that at the time the. Pfeifer decision was handed down the concept of zoning and of zoning ordinances was in its infancy.

The enabling act was Act 6 of the second extraordinary session of the General Assembly of 1924. This act only set up three zoning classifications, one for manufacturing, one for business, and one for residential property. At this time there was no concept of long range planning or large scale plans for cities on the basis of districts. Act 186 of 1957 authorized cities to adopt and enforce plans ...

“for the coordinated, adjusted, and harmonious development of the municipality and its environs.”

This act, in effect, allowed municipalities to plan the development and growth of their cities in accordance with their future needs, safety, morals, order, etc., and thereby provide for the general welfare of the citizens. It gives the cities the power to determine the best manner and place for the various zones to be located in the city for the good of all, and to control development in any one kind of zone, and also, to provide buffer zones and blending zones so that various uses of land will not conflict one with the other. The Pfeifer Rule is in direct conflict with these modern planning practices and zoning theories and if followed literally would frustrate any attempt to control commercial development and keep it within a specific zone. In Baldridge v. City of North Little Rock, 258 Ark. 246, 523 S.W. 2d 912 (1975), this court stated ...

“We are, therefore, of the opinion that residentially zoned property which happens to be adjacent to business zoned property is not automatically entitled to rezoning as business property as a matter of law under Pfeifer. To hold otherwise would be illogical and could easily defeat the entire purpose of municipal zoning, in that a string of business establishments could be driven through any residential neighborhood by the simple process of touching each other. Such is not the intent of the zoning law arid such is not the intent of the so-called “Pfeifer Rule.”

Also, in other cases this court has restricted, limitéd and modified the holding in Pfeifer. In City of Little Rock v. Parker, 241 Ark. 381, 407 S.W. 2d 921 (1966), Chief Justice Harris stated:

“It is apparent that the passage of Act 186 of 1957, to some degree necessarily modified our holding in Pfeifer, for a strict and literal interpretation of all of the language in that case would certainly result in nullifying the effort by a city to coordinate development of lands, and more than that, in effect, would nullify Act 186. The right and responsibility for classifying the various areas in the city are with the zoning authorities, and their decision will only be disturbed if it is shown that they acted arbitrarily. Lindsey v. City of Camden, 239 Ark. 736, 393 S.W. 2d 864.”

The fact that residential property next to business property is not automatically entitled to be rezoned as business or commercial was recently affirmed by this court in City of Conway v. Housing Authority of City, 266 Ark. 404, 584 S.W. 2d 10 (1979), where the court stated ...

“Residential property which is adjacent to business zoned property is not automatically entitled to rezoning as business property. This is so even though the highest and best use of the property might be other than residential. To allow such rule would be to violate the zoning act itself. If we were to allow any property abutting business property to be rezoned as business property, there would be no need of a zoning ordinance in the first place. We have stated too many times to mention that the court should sustain the city’s action in zoning matters unless it is found that the municipality was arbitrary in setting up the ordinance.”

From these decisions it can be seen that in light of modern planning and zoning practices, Pfeifer now has very limited applicability and little if any validity. The power to plan and zone given to the cities by Act 186 of 1957 is not to be limited or restricted by court-made automatic rules about the nature of adjacent land. Such power is balanced and checked only by a review of the cities’ actions, by examination of all the surrounding facts and circumstances to determine whether such actions were arbitrary, capricious or unreasonable.

Even if Pfeifer can be validly applied in certain limited circumstances, it does not apply in the case at bar. The preponderance of the evidence presented below shows the land in question is not adjacent to an existing and expanding business district.

The property to the northwest, west and southwest of the subject property is zoned for and being used as residential property and is developed with more than 700 apartments. Immediately east of the subject property is a tract of land several hundred feet or about half a block long which is zoned “A” One-Family'residential. It is vacant and undeveloped. To the immediate south and partly on the eastern boundary is an area zoned “A” One-Family but agreed by bpth parties should be classified as “I”-Light Industrial. This tract is actually occupied by some mini warehouses or small storage units for the persons in the adjacent and nearby residential area. There is a single-family dwelling to the south of the storage units that has been converted for use as a day-care center and which is a non-conforming commercial use of “A” One-Family residential property. None of this surrounding land can be considered a “business district” as that term was used in the Pfeifer case.

The land to the north and northwest across Rainwood Drive from the subject property is zoned “G-l” Commercial but is mostly vacant and has not been developed commercially. The only development at all on the property is the construction of condominiums over most of the west half of the property which is about one block wide and about two blocks long running north almost all the way to Rodney Parham Road. On the remaining vacant portion of the property, the evidence showed that roadways and cul-de-sacs have been constructed indicating more residential or quiet business development.

Therefore, there is no actual commercial development on any property adjacent to the subject property. Also, it is apparent that a large part of the commercially-zoned land in the vicinity is vacant and undeveloped. Certainly there is no established and expanding business district adjacent to appellees’ land.

Appellees argue that the court should consider a large 65 acre district lying mostly to the northeast of the property, some of which is almost a half mile away and none of which is adjacent to the subject property. We know of no authority that permits such a far-ranging comparison. Appellees and the court below ignore the fact that the large condominium development immediately northeast of the subject property cuts off or buffers the commercial development along Rodney Parham and further east from the subject property.

In each of the cases cited by appellees to support the application of the. Pfeifer rule to this case, there was far more evidence of existing business buildings and districts which were clearly expanding business or commercial districts than has been shown in this case. In Metropolitan Trust Company v. City of North Little Rock, 252 Ark. 1140, 482 S.W. 2d 613 (1972), the.court did refer to adjacent land across the intersection as being zoned commercial. However, the other facts in that case clearly show the court was dealing with án existing and expanding business district. There the land in question was the southwest quadrant of the intersection of Highway 67-167 and McCain Boulevard, two primary traffic arteries carrying up to 20,000 cars per day and projected to carry as much as 90,000 cars per day. Across the boulevard from the property in question, the largest regional shopping center in the state, covering more than 50 acres, was under construction. Even the land being rezoned had been used as commercial land before it had been annexed to North Little Rock. All these facts were in addition to the fact that the other quadrants were zoned commercial. There was far more evidence of an existing and expanding business district in the Metropolitan Trust case than in the case at bar. The same is true for City of Blytheville v. Thompson, 254 Ark. 46, 491 S.W. 2d 769 (1973), and City of Little Rock v. McKenzie, 239 Ark. 9, 386 S.W. 2d 697 (1965).

The decision of the chancellor that the property of appellees was adjacent to an existing and expanding business district is against the preponderance of the evidence and he erred in so holding.

The question now is, were the actions of the City Board arbitrary, capricious or unreasonable separate and apart from any Pfeifer considerations. After reviewing all of the evidence, we cannot say that the Board’s actions were without reasonable basis.

Appellees argue that the Board was unreasonable and arbitrary in failing to recognize the highest and best use of the property was for commercial purposes. However, the only testimony given as to the highest and best use applied in large part to economic benefits to be gained from the property, as opposed to the most appropriate or compatible zoning unit in which to place the property. When the witnesses were cross-examined as to whether it was technically feasible or physically feasible to develop the property as multifamily, residential, or quiet business, they agreed that it could be done, but it would not be economically feasible. It has been well-established that rezoning cannot be justified solely on the grounds that it is necessary to put a tract of land in its most remunerative use. Tate v. City of Malvern, 246 Ark. 316, 438 S.W. 2d 52 (1969); Lindsey v. City of Fayetteville, 256 Ark. 352, 507 S.W. 2d 101 (1974).

Appellees contend that although the report of the planning staff on the subject property found: (1) no issue exists relative to street right-of-way and traffic considerations, (2) no expressions regarding standards of quality, (3) no effect on public finance, (4) no adverse impact expected on utilities, (5) no adverse impact on public services, (6) no opposition from the neighborhood, and (7) no effect on environs, the Commission and Board refused to allow rezoning to “F” commercial. This, they say, shows the Board was acting according to its own personal preference not based on reason and therefore it is arbitrary and unreasonable. However, appellees fail to point out that the report goes on to say:

“In the opinion of the staff, this general area of the city is grossly overzoned. Indicated by the lack of development already appropriately zoned commercial. Staff also feels that zoning this property commercial will commit to further encroachment into the residential portions of the neighborhood.”

This forms the basis for the City’s actions and its theory or justification for its plan is further explained in the testimony of appellant’s witnesses. They stated that the City’s plan for the area designated the property in question to be zoned as quiet business or multifamily residential. They also stated there was a need for such development and they had determined a trend in the area whereby property was being developed for multifamily purposes or quiet or garden-type business purposes, regardless of the fact that much of it was zoned commercial.

They also testified that the area had been over-zoned commercially, meaning that more property had been designated for commercial use than was actually needed or used.

The City’s witnesses further stated that the most compatible and most appropriate zone for the property was medium density residential or quiet business. This type zone would help blend or “stage downward” from the commercial development on Rodney Parham to the residential to the south of the subject property. Also, this zone would fit in if the trend to develop commercially zoned property as condominiums or quiet business continued in the area.

This theory is supported by the large amount of vacant commercially zoned property in the area, and by the way the property immediately north and northeast of the subject property has been developed. It is further supported by the undisputed testimony that the only recent developmet in this area was an office building being built on commercially zoned property and some condominiums being built on Green Mountain Drive south of this property.

We cannot say that this theory of planning or zoning is without reasonable basis. It is in fact supported by physical facts. Although there was much evidence supporting appel-lees’ request, it is not for the Chancellor or this Court to weigh these arguments as to which is best or more convincing. That power and duty has been given to the City so long as it does so with reason and not arbitrarily.

In this case the planning staff reviewed the application and submitted its report recommending that the rezoning not be granted because of the overzoning situation and the rezoning of the property to “F” commercial would have a detrimental effect on the developing trend to use the land in the area as multifamily use or as office and quiet business use. Then the planning commission held a hearing allowing the landowners to present their side of the issues and after deliberation voted not to grant the rezoning. Finally, the City Council held a hearing and heard the recommendations of the staff and the commission as well as statements by attorneys for the landowners and voted not to grant the rezoning. The preponderance of the evidence indicates that there was reasonable basis for their decision and as such it was not arbitrary and capricious. The Chancellor was in error in so holding.

The final ground for appeal stated by the appellants was that the Court by decree rezoned the property to “F” Commercial. As we have previously pointed out, the Legislature gave the rezoning power to the City Council or legislative body of the City and it is not within the province of the court to rezone property. See City of Batesville v. Grace, 259 Ark. 493, 534 S.W. 2d 224 (1976), and also see City of Conway v. Housing Authority of City, 266 Ark. 404, 584 S.W. 2d 10 (1979) where the court said ...

“Courts are not super zoning commissions and have no authority to classify property according to zones.”

An injunction is the only proper action for the Chancellor to take in such a situation. Placing the property in a specific zone is beyond the Court’s power.

In accordance with what has been said, the action of the City Council in refusing to rezone the property to “F” Commercial was not arbitrary and capricious or unreasonable, and the Decree should be and hereby is reversed.

IT IS SO ORDERED.

Hays, J., not participating.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Carol TOWNSEND and Kenneth BROWN v. Alex NESTERENKO, Barry McGRAW, Ethel J. FAUGHT and Evelyn BRINK
    81-116
    619 S.W. 2d 673
    Supreme Court of Arkansas
    Opinion delivered July 20, 1981

      Mays, Crutcher & Brown, P.A., by: Darrell P. Brown, for appellants.

      Boswell & Smith, P.A., by: Ted Boswell, for appellee McGraw.

      Matthews & Sanders, by: Gail O. Matthews, P.A., for appellee Faught.
   Per Curiam.

This case arose out of a four-car collision in which a car occupied by appellants first side-swiped appellee McGraw’s parked car and, then, was immediately struck in the rear by the car driven by appellee Faught; after all of the occupants were out of their cars, a fourth car driven by Evelyn Brink struck the rear of the one driven by Faught. Evelyn Brink and Alex Nesterenko are not properly named as appellees since appellants’ complaint against them was dismissed prior to submission of the case to the jury. This is an appeal from a judgment entered on a jury verdict for the defendants-appellees.

For reversal appellants first argue that the trial court erred in denying their motion in limine to prohibit references by the appellees to appellant Townsend’s conviction for prostitution and appellant Brown’s involvement in gambling. Appellants next argue that the trial court erred in its failure to grant a motion for a new trial since the verdict was contrary to the clear preponderance of the evidence. We do not reach the merits of either point since appellant has failed to properly abstract the following parts of the record as required by Rule 9(d), Rules of the Supreme Court, Ark. Stat. Ann., Vol. 3A (Repl. 1979):

1. The complaint stating what damages were sought by the appellants.
2. The court order or ruling denying appellants’ motion in limine.
3. The judgment and other parts of the record necessary to consider the motion for new trial.
4. Appellants’ motion for a new trial stating the grounds therefor.
5. A court order or ruling denying appellants’ motion for a new trial.

Therefore, we must affirm the trial court under Rule 9 (e) (2) as we have done in numerous cases. Bank of Ozark v. Isaacs, 263 Ark. 113, 563 S.W. 2d 707 (1978), Smith v. Bullard, 271 Ark. 794 (1981).

Affirmed.


text:
    Larry Ellender WILSON v. STATE of Arkansas
    620 S.W. 2d 936
    Supreme Court of Arkansas
    Opinion delivered July 20, 1981

      Donald H. Smith, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Bums, Asst. Atty. Gen., for appellees.
   Per Curiam.

The appellant, Larry Ellender Wilson, by his attorney has filed a Motion for Rule on the Clerk. It is denied because the motion does not state good cause. While the attorney for the appellant says there was a misunderstanding between him and the court reporter, there is no acknowledgement that the sole reason the record was not filed was the negligence of the attorney. If the appellant’s attorney will concede that in an amended motion, then the appellant will be granted a belated appeal. See Moore v. State, 267 Ark. 548, 609 S.W. 2d 894 (1980).


author: Richard B. Adkisson, Chief Justice.

text:
    William J. FOUNTAIN, Jr. v. STATE of Arkansas
    CR 80-114
    620 S.W. 2d 936
    Supreme Court of Arkansas
    Opinion delivered September 14, 1981

      E. Alvin Schay, State Appellate Defender, for appellant, and appellant pro se.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

After a trial by jury, appellant William J. Fountain, Jr., was convicted and sentenced to 50 years and fined $ 15,000 for rape, to 25 years and fined SI0,000 for kidnapping, and to five years and fined $5,000 for burglary. On appeal appellant contends the evidence was insufficient to support his conviction for rape. In testing the sufficiency of the evidence on appeal this Court views the evidence in the light most favorable to the State and will affirm if there is substantial evidence to support the conviction. Norton v. State, 271 Ark. 451, 609 S.W. 2d 1 (1980); Lunon v. State, 264 Ark. 188, 569 S.W. 2d 663 (1978). Evidence is substantial if it is of sufficient force and character to compel a conclusion of reasonable and material certainty. Jones v. State, 269 Ark. 119, 598 S.W. 2d 748 (1980).

The victim testified at trial that the appellant appeared at her home at approximately 1:30 p.m. on October 4, 1979, in a gold Vega, and inquired about a four-wheel drive truck which had been advertised for sale in a local paper. The victim and the appellant conversed in the carport for about 40 minutes; then at the appellant’s request, the victim went inside to call her husband concerning the sale of the truck. Appellant, uninvited, followed her inside, and before she could place the call she was attacked, bound with black electrical tape, and raped. She suffered a broken neck, severe lacerations to the head, and was rendered unconscious. Upon regaining consciousness, she called her husband who arrived a little after 3:00 p.m. She immediately began describing her assailant to him, and he called the police. She again described her assailant to the police while waiting for an ambulance. She was then taken to the hospital and treated for her injuries.

At the hospital, she was treated by Dr. Rustin Pierce, whose function is to examine rape patients. He testified that he took specimens from the victim and found the presence of prostatic acid phosphatase, an enzyme produced only by males. He then testified that the presence of the prostatic acid phosphatase indicated that she had had recent intercourse. In light of the victim’s testimony concerning the rape, which was corroborated by Dr. Pierce, it is clear that there is substantial evidence upon which to uphold the appellant’s conviction for rape.

In addition to the issue of substantial evidence, appellant’s court appointed counsel has raised three points for reversal and appellant has raised 11 additional points in a separate pro se brief. These points will be consolidated under eight points for review.

I

Appellant argues for reversal that the testimony of two witnesses, Kay Clifton and Rhonda Moss, should not have been admitted. Appellant bases his objection on remoteness in time and lack of personal knowledge. This Court finds no merit to this argument. The testimony of both witnesses was probative on the issue of identification of the assailant.. Rhonda Moss, a real estate agent, testified that on September 10, 1979 (a date less than a month before the rape occurred), she showed appellant a house in the same neighborhood in which the victim lived. On this date the appellant was driving a gold Vega. Kay Clifton, also a real estate agent, testified that she also showed houses to the appellant on September 11 and 12, 1979, and that appellant was driving a goldish Vega. Furthermore, she testified that the appellant told her he wanted to buy a four-wheel drive vehicle. The testimony of these two witnesses serves to connect the appellant with the crime and thereby establish his identity as perpetrator. As such, it was clearly admissible.

II

Appellant next urges for reversal that the trail court erred in allowing the introduction into evidence as State’s Exhibit No. 2 a roll of black electrical tape seized by the police at appellant’s residence. The sole objection at trial was that it was not related to the tape which had already been introduced as State’s Exhibit No. 1 which was the tape used to bind her arms. This objection is without merit. The roll of tape was clearly admissible because of the similarity between it and the tape used to bind the victim, thereby making the appellant’s identity as the rapist more probable than it would have been without the evidence. Furthermore, another witness, Kay Clifton, testified that the appellant removed a roll of black electrical tape from a can inside his pocket while she was showing him houses.

At trial the prosecution did not attempt to prove this tape seized at appellant’s residence was the same tape as used to bind the victim; rather, it was presented as circumstantial evidence for the jury to consider along with all the other evidence. The roll of tape seized pursuant to the search warrant was just another link in the State’s evidence connecting the appellant to the crime. The jury apparently weighed the evidence, including appellant’s statement that he had bought the tape to repair wiring in a car, and determined the appellant was guilty. Resolving this type of evidence is within the jury’s province. Plummer v. State, 270 Ark. 11, 603 S.W. 2d 402 (1980).

Appellant raised an additional objection to the admission of this tape arguing that the prosecution violated a court order by not sending the tape to the crime lab to be tested. However, at trial, police witnesses testified that the tape was sent to the crime lab for testing; but testing was not completed due to the illness of the person who was performing the tests.

Ill

Appellant alleges the court erred in allowing the testimony of Dr. Richard Jordan, a neurosurgeon, regarding the extent of the injury to the victim’s neck. Appellant first claims surprise due to the failure of the prosecution to disclose the name of this witness. Appellant had filed a pre-trial motion requesting the names of all witnesses. The prosecution responded by stating he had opened his file to appellant. Appellant also now argues that the prosecution allegedly “stipulated” at a pre-trial hearing that the only evidence pertaining to the neck injury at trial would be the victim’s own testimony. Additionally, appellant alleges that the neck injury is an injury separate and apart from the rape. However, at trial, the sole objection to the doctor’s testimony was that it was immaterial. Therefore, only the materiality of the doctor’s testimony will be considered upon appeal.

The Court finds Dr. Jordan’s testimony clearly material since the injury to the victim’s neck occurred at the time of and in the course of a brutal sexual assault and was proof on the issue of forcible compulsion, an essential element in the proof of rape. Injuries suffered by the victim have long been admissible in rape trials. Maxwell v. State, 236 Ark. 694, 370 S.W. 2d 113 (1963); Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954).

IV

Appellant alleges that the trial court erred in admitting the hearsay testimony of the victim’s husband who had arrived home to find his wife half naked, obviously in extreme pain, trembling, bleeding profusely from a head wound, and almost hysterically attempting to explain what had happened to her.

This point is clearly without merit. The statements were made while the victim was under stress and excitement caused by the brutal crime and are clearly admissible under our case law. Burris v. State, 265 Ark. 604, 580 S.W. 2d 204 (1979); Rule 803(2), Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979).

V

Appellant asserts that the court erred in refusing to suppress the in-court identification of the defendant by the victim and a witness, A. A. Davis, on the ground that such identification was rendered unreliable by two separate photo identification lineups conducted by the Conway Police Department.

The first photo lineup consisted of 11 photographs, two of which were of the defendant, some were in color, some were in black and white. The appellant claims it was rendered unreliable by the inclusion of two separate photographs of the defendant.

The second photo lineup consisted of 13 photographs some of which were black and white, and some of which were in color. Appellant claims this lineup was unreliable due to the fact that beneath appellant’s photo was printed a date later than the date of the crime.

Appellant asserts a claim of right to counsel at the photographic identification lineup. However, an accused does not have a right to counsel at a photo lineup. United States v. Ash, 413 U.S. 300 (1973); Synaground v. State, 260 Ark. 756, 543 S.W. 2d 935 (1976).

Appellant further claims the photo lineups were unconstitutionally suggestive. When a photographic identification is followed by an eyewitness identification at trial, the conviction will be set aside only if the photographic show up was so suggestive as to create a substantial possibility of irreparable mis-identification. West v. State 255 Ark. 668, 501 S.W. 2d 771 (1973); Synaground v. State, supra.

Factors to be considered in testing the raliability of lineup identification are set out in Manson v. Brathwaite, 432 U.S. 98 (1977) and McCraw v. State, 262 Ark. 707, 561 S.W. 2d 71 (1978): (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Neil v. Biggers, 409 U.S. 188 (1972).

Whether or not the particular procedure used is so unnecessarily suggestive as to violate due process must be determined from the totality of the circumstances. Stovall v. Denno, 388 U.S. 293 (1967); Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977). Based upon the totality of the circumstances in this case, there is little, if any, possibility of mis-identification by the victim. The victim had sufficient opportunity to view the appellant during a conversation of some 30-40 minutes in broad daylight, as well as during the subsequent criminal attack. At trial, the victim testified that her assailant’s wavy black hair and piercing blue eyes stuck out in her mind, and that she could never forget them. There is also substantial evidence pointing towards the reliability of Mr. Davis’s identification of the appellant. On the date in question, Mr. Davis observed a man talking to the victim on her carport. His attention was drawn to the man because he resembled another person known by the witness. He observed the victim and the man for more than four minutes at a distance of about 70 feet. Furthermore, both Mr. Davis and the victim, without any suggestion from the police officers, picked the appellant’s picture out of photo lineups and were very definite in their in-court identification of appellant.

VI

Appellant next argues that he was prejudiced by the pre-trial publicity resulting from the trial court’s failure to hold an in camera suppression hearing regarding the witness’s identification of him. Adequate safeguards from pre-trial publicity are provided by the voir dire examination of prospective jurors. Since appellant has not abstracted the voir dire of the jury, he is unable to demonstrate any prejudice that may have resulted. Furthermore, appellant’s reliance on Gannett Co. v. DePasquale, 443 U.S. 368 (1970) for the proposition that appellant’s pre-trial hearing should have been closed, is misplaced. The issue in that case was whether members of the public have an independent constitutional right to insist upon access to a pre-trial judicial proceeding. In holding that there was no such right, the court clearly stated, “While the Sixth Amendment guarantees to a defendant in a criminal case the right to a public trial, it does not guarantee the right to compel a private trial.” Gannett Co. v. DePasquale, surpra.

VII

The abstract of the record does not reflect, as appellant argues, that he was improperly limited to eight peremptory challenges and that the court curtailed the defendant’s voir dire examination of juror Thornton. Since appellant has failed to abstract the voir dire examination of the jurors, there is simply no showing that appellant was forced to take a juror he was not satisfied with. Kirk v. State, 270 Ark. 983, 606 S.W. 2d 755 (1980); Conley v. State, 270 Ark. 886, 607 S.W. 2d 328 (1980).

VIII

Appellant alleges that the court erred in allowing the prosecutor to question him concerning how he got to Arkansas after escaping from a North Carolina prison. Appellant argues the questions were improper because he had been charged with car theft in North Carolina, and did not want this evidence before the jury.

A review of the transcript discloses that although the prosecutor did ask several questions concerning appellant’s mode of transportation to Arkansas, the appellant did not answer and his objections to the questions were sustained. Therefore, evidence of the pending charge was never before the jury, and appellant suffered no prejudice.

Affirmed.


author: George Rose Smith, Justice.

text:
    Penelope Marcheta NICHOLS a/k/a SISTER PENNY v. STATE of Arkansas
    CR 80-262
    620 S.W. 2d 942
    Supreme Court of Arkansas
    Opinion delivered September 14, 1981

      E. Alvin Schay, State Appellate Defender, by: Linda Faulkner Boone, Deputy Defender, for appellant.

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

In August, 1980, an information charging the offense of manufacturing marihuana was filed against the appellant, who prefers to be called Sister Penny, and against Sister Nora, another member of the Church of the New Day Missionaries. After an extended pretrial hearing on October 27 the case was tried before a jury on November 6 and 7. A severance was granted during the trial. Sister Penny’s case was submitted to the jury, which found her guilty of possession of marihuana and imposed a sentence of six months in the county jail. This appeal is from a judgment on the verdict. Four points for reversal are argued by the Appellate Public Defender.

First, the defendants allowed their retained lawyers to withdraw from the case, because the defendants repeatedly and doggedly insisted upon their right to be represented by “church counsel”: Brother William Tucker and Brother Walter Tucker, two members of the church who were not licensed to practice law and evidently had no knowledge of law at all. The trial judge repeatedly warned the defendants about the hazards of representing themselves and offered again and again, with extraordinary patience, to appoint counsel. The defendants refused every offer. The trial judge fairly summarized the situation in saying to Sister Penny: “[A]s I understand your position, it is simply this: That you are not going to cooperate or participate in your trial at all unless these laymen are permitted to appear in court as your attorneys.” That was indeed the position of the defendants, who reaffirmed that position in a pro se petition for prohibition in this court, which we denied. (Our jurisdiction of this appeal my rest upon that earlier proceeding. Rule 29 [1] [j].)

An accused may voluntarily and intelligently waive her right to counsel and choose to represent herself. Barnes v. State, 258 Ark. 565, 570, 528 S.W. 2d 370 (1975). Such a waiver undoubtedly took place in the court below, but the trial judge nevertheless asked a licensed lawyer to sit with the defendants during the trial and permitted a second lawyer to volunteer his services in their behalf on the first day of the trial. We find no basis for holding that the trial court denied the defendants their right to the assistance of counsel. The services of an attorney cannot be forced upon an accused. Williams v. State, 153 Ark. 289, 239 S.W. 1065 (1922).

Second, after the trial judge had declared a brief recess to allow the volunteering lawyer to confer with the defendants, that lawyer sought a continuance: “I feel like I should make a motion for a continuance since I have not had proper time to prepare for the trial. I realize it is not the court’s fault, but I feel like it is necessary that I make that motion.” Inasmuch as it was the defendants’ own inflexible insistence upon their right to be represented by unlicensed persons that led to the eleventh-hour request for a continuance, we cannot say the court abused its discretion in denying that request.

Third, the trial judge denied a pretrial motion, filed by Brother Walter and Brother William, to suppress evidence (marihuana) seized by the officers under a search warrant, on the asserted grounds that (1) the seizure was in violation of the Fourth and Fourteenth Amendments to the United States Constitution, (2) the evidence was not “subject to seizure,” and (3) the search warrant was invalid “for failure to describe with sufficient particularity the place to be searched or things to be seized.” (The two laymen told the court they had worded the motion on the basis of a form book they had looked at in a Little Rock library.)

No ground for exclusion was established by the proof on the motion to suppress. The first ground, a violation of the Constitution, is too vague to amount to a specific objection to the evidence. Uniform Evidence Rule 103 (a) (1), Ark. Stat. Ann. § 28-1001 (Repl. 1979). The second ground asserts no basis for suppression, because marihuana is a prohibited controlled substance and therefore subject to seizure.

With respect to the third ground, the affidavit for the search warrant described marihuana growing in an open field near a wooden shack, a tepee, and a barn. The affidavit gave detailed directions for leaving the courthouse and traveling specified roads to reach the field where the marihuana was being grown. An officer who executed the warrant testified that he had no problems in following the directions and finding the property. Sixty-two marihuana plants were seized, apparently in the field, and four containers of marihuana were seized, apparently in one of the structures. The defendants confined their proof to an attempt to impeach the accuracy of a statement in the affidavit for the search warrant that the land was owned by James R. Keever. We do not appreciate the materiality of their argument. If the defendants were growing marihuana as trespassers on someone else’s land, they had no standing to complain of a violation of the landowner’s rights. And if, as they contended, the Church owned the property, the error as to ownership was irrelevant surplusage, because the directions in the affidavit and in the warrant enabled the officers to find the property without difficulty and to seize the contraband.

Fourth, it is argued that there is no substantial evidence to show that Sister Penny was in possession of marihuana. An officer who executed the warrant testified that when the marihuana was seized only the two defendants were present on the property. After they had been warned of their rights they said they were growing the plants for the church, which used marihuana in a sacrament. Sister Penny herself testified that she lived on the property and regularly smoked marihuana to ease the pain of multiple sclerosis. She professed not to know where the marihuana came from: “Well, I just look around and usually I find — or at least I used to find a little box and I would reach in and I would get myself enough to either put some in a pipe or put some in what is referred to as a joint.” Thus there was ample proof to support the jury’s finding that Sister Penny had possessed marihuana.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Mark S. LINDER v. STATE of Arkansas
    CR 81-10
    620 S.W. 2d 944
    Supreme Court of Arkansas
    Opinion delivered September 14, 1981

      Michael R. Landers, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, Mark S. Linder, was charged with capital murder. The jury found him guilty and he was sentenced to life imprisonment without parole. We affirm.

The proof is overwhelming that appellant killed Alex Naccarato during the course of a robbery. Disinterested witnesses saw appellant enter Wolfie’s Tavern in El Dorado around 6:00 p.m. on March 27, 1980. He ordered a pitcher of beer and paid for it with nickels, dimes and quarters. The waitress who served him did not see him with any paper money. He sat alone and spoke to no one. Around 8:30 p.m. Alex Naccarato entered the tavern and visited with friends. He had been paid that day and was observed with a sizeable amount of paper money in his possession. At approximately 9:00 p.m. appellant, who had consumed only about a third of the pitcher of beer in three hours, got up and asked Naccarato if he could talk to him outside the building.

Joe Carroll, the tavern owner, watched as the two men went outside and became concerned when he saw appellant make a motion with his arm. Naccarato was in front of appellant as they walked to the side of the tavern. Witnesses saw no one else in the area. Appellant and Naccarato were out of sight only six to eight seconds when Carroll and others inside the tavern heard a number of gunshots. Carroll grabbed his .45 caliber pistol and ran outside as appellant headed toward the street. Appellant had his right hand down in his trousers and a pistol in his left hand. Carroll rushed forward and appellant raised his pistol. After a struggle Carroll finally knocked appellant’s pistol about ten feet away and “straddled” him. While waiting for the police Carroll said, “You just killed one of my best friends,” and appellant responded, “He’s a freak or a queer. He won’t bother anybody any more.”

The police arrived shortly. Two policemen arrested appellant and placed him in their patrol car while a detective recovered a pistol about ten feet from the place of the struggle. That pistol was a .22 caliber nine-shot revolver with eight expended rounds. Expert testimony later identified the gun as the one which fired the bullets that killed Alex Naccarato.

En route to the police station Officer Campbell saw appellant taking paper money from his right front pocket and placing it in his right rear pocket. At the police station appellant was searched and Officer Campbell testified that he found four fifty-dollar bills, one ten-dollar bill and five one-dollar bills in appellant’s rear right pocket. The officer testified that appellant had 45 cents and perhaps a dollar bill somewhere else, but he did not remember where. Detective Leverett testified that he noticed a stain on one of the one-dollar bills and sent that bill to the state Crime Laboratory for examination. A forensic serologist testified that the stain was human blood but that it could not be typed because the sample was insufficient. Naccarato’s billfold was found in the crotch of appellant’s pants. It contained Naccarato’s identification papers and credit cards but no money.

The State Medical Examiner testified that the victim suffered six contact, or point blank, gunshot wounds and five of them were potentially fatal. He testified that he performed a trace metal test and a gunpowder test on the hands of Naccarato and that he had neither handled nor fired a gun immediately before his death. A search of the victim’s clothes revealed only two one-dollar bills and 84 cents in change. His billfold was missing.

Practically all of the evidence offered on behalf of appellant was given in an attempt to prove the defense of insanity. The questions before the jury were whether appellant killed Alex Naccarato in the course of a robbery and whether the shooting was the irrational act of one who was mentally ill to the degree of legal irresponsibility. Appellant contends that it was error to admit into evidence the stained dollar bill and the testimony of the serologist because they were not relevant to the issues. We disagree. Both the stained dollar bill and the testimony of the serologist were relevant, because they tended to show, as circumstantial evidence, that appellant killed the victim in the course of robbing him. Rule 401, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979); Parker v. State, 266 Ark. 13, 582 S.W. 2d 34 (1979).

Appellant also contends that the trial court erred in admitting into evidence two photographs of the body of the victim. The photographs show some of the bullet wounds which the victim received. Appellant’s defense of insanity did not relieve the State of the burden of proving every element of the charge. Campbell v. State, 265 Ark. 77, 576 S.W. 2d 938 (1979). The two photographs showing the wounds enabled the jury to understand what took place. The nature, extent and location of the wounds were relevant to the question of intent and state of mind. There was no abuse of the trial judge’s discretion in weighing the value of the two photographs against the danger of unfair prejudice.

Pursuant to Rule 11 (f) the record of the trial below has been examined, and we find no prejudicial error.

Affirmed.


text:
    Lynn MELTON v. STATE of Arkansas
    620 S.W. 2d 946
    Supreme Court of Arkansas
    Opinion delivered September 14, 1981

      Thomas A. Martin, Jr., for appellant.

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

Lynn Melton, by his attorney, Thomas A. Martin, Jr., filed a motion for a rule on the clerk. The motion does not contain the necessary affidavit as required by this Court in a Per Curiam order of February 5, 1979, 265 Ark. 964 (1979).

It is the responsibility of the attorney of record to see that the record on appeal is properly maintained. See Nelson v. State, 272 Ark. 287, 613 S.W. 2d 598 (1981) and Wilson v. State, 273 Ark. 456, 620 S.W. 2d 936 (1981).

The motion will be denied without prejudice to file a second time.


text:
    Larry Ellender WILSON v. STATE of Arkansas
    620 S.W. 2d 936
    Supreme Court of Arkansas
    Opinion delivered September 14, 1981

      Donald H. Smith, for appellant.

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

Larry Ellender Wilson, by his attorney, has filed for a rule on the clerk.

His attorney, Max J. Probst, has attached an affidavit admitting that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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


text:
    Johnny WHITE et al v. WHITE, INC. et al
    81-43
    621 S.W. 2d 215
    Supreme Court of Arkansas
    Opinion delivered September 21, 1981

      Bill W. Bristow of Seay & Bristow, for appellants.

      William B. Howard of Howard & Howard, for ap-pelles.
   George Rose Smith, Justice.

A threshold question is whether this appeal was properly filed in the Supreme Court rather than in the Court of Appeals. We find that the case should have been filed in the Court of Appeals and therefore transfer it to that court. Rule 29 (3).

The details of the litigation are unimportant, it being enough to say that the case is a stockholders’ suit brought by the appellants to obtain the dissolution of three family corporations. The decree (which appears to be final, not interlocutory) granted some but not all of the relief sought by the plaintiffs. Their notice of appeal recites that the appeal is taken to the Supreme Court pursuant to Rule 29 (1) (k), which pertains to interlocutory appeals, and on the additional basis that the case involves an issue of significant public interest and a legal principle of major importance. The appellants’ jurisdictional statement preceding their abstract and brief asserts that “this matter should be heard in the Supreme Court pursuant to Supreme Court Rule 29 (3) and (4) in that an issue of significant public interest is involved and a legal principle of major importance will be established.” No facts are set forth to support those jurisdictional assertions. The Clerk accepted counsel’s statement and docketed the appeal in the Supreme Court.

We have explained in an earlier case that Rule 29 treats the Court of Appeals as a tribunal of final authority in the particular area of its jurisdiction, not as merely an additional and expensive and time-consuming level in the appellate structure. Moose v. Gregory, 267 Ark. 86, 590 S.W. 2d 662 (1979). To that end Rule 29 (1) states that all cases shall be appealed to the Court of Appeals except those falling within the jurisdiction of the Supreme Court, as defined in the various subsections of Rule 29 (1).

The appellants’ jurisdictional statement does not invoke Supreme Court jurisdiction under any subsection of Rule 29 (1). Instead, it petitions the Supreme Court to accept the case under Rule 29 (3) and (4) as presenting an issue of significant public interest or a legal principle of major importance. That jurisdictional question, however, must be decided in the first instance by the Court of Appeals, not by counsel nor by the Clerk of the courts. The case must therefore be transferred to the Court of Appeals for further proceedings. It is so ordered.


author: Frank Holt, Justice.

text:
    Bill LINDSEY et al v. Charles WATTS et al
    81-55
    621 S.W. 2d 679
    Supreme Court of Arkansas
    Opinion delivered September 21, 1981
    [Rehearing denied October 26, 1981.]

      Felver A. Rowell, Jr., for appellants.

      Matthews & Sanders, by: Roy Gene Sanders, for appellees.
   Frank Holt, Justice.

This appeal results from the jury’s finding, based upon interrogatories, that the appellants committed or aided and abetted in an unjustifiable assault and battery upon appellees Mike and Charles Watts. Mike was awarded $5,000 compensatory damages and $5,000 punitive damages and Charles $55,000 compensatory damages and $5,000 punitive damages.

Appellants first contend there is no substantial evidence to support the jury’s verdict and, therefore, the court should have granted appellants’s motion for a directed verdict upon appellees’ counterclaim. A directed verdict is proper only when there is no substantial evidence from which the jurors, as reasonable persons, could possibly find the issues for the party opposing the motion. Arkansas Kraft Corporation v. Johnson, Adm’n, 257 Ark. 629, 519 S.W. 2d 74 (1975); Miller v. Tipton, 272 Ark. 1, 611 S.W. 2d 764 (1981). In determining if substantial evidence exists, an examination of the evidence must be made in the light most favorable to the parties opposing the motion. Missouri Pacific R.R. C. v. Purdy et al, 263 Ark. 654, 567 S.W. 2d 92 (1978); Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W. 2d 307 (1969). If there is any substantial evidence to support the finding of the jury, we will affirm. Green v. Harrington, 253 Ark. 496, 487 S.W. 2d 612 (1972). There, we said that upon appellate review, it must appear “there is no reasonable probability that the incident occurred as found” by the factfinder. It is also well established that upon appeal we consider only the evidence of the appellee or that portion of all the evidence which is most favorable to the appellee. Thrifty Rent-A-Car v. Jeffrey, 257 Ark. 904, 520 S.W. 2d 304 (1975); Baldwin v. Wingfield, 191 Ark. 129, 85 S.W. 2d 689 (1935); and Washington National Insurance v. Meeks, 252 Ark. 1178, 482 S.W. 2d 618 (1972).

A dispute arose between the appellants and the appel-lees, adjacent landowners, concerning the use and repair of a cattle guard on appellee Mike Watts’ land. Appellants had an easement to cross appellees’ property on a road passing over the cattle guard. An earlier dispute resulted in a chancery court order directing that the appellants remove spikes they had placed along the cattle guard which prevented a milk truck from entering appellees’ dairy farm. However, after appellants removed the spikes, they placed wooden posts at the corners of the cattle guard which would impede the milk truck. They, also, had filled the cattle guard with rock sufficiently to impair its use as a cattle guard. Later the same day, when appellants attempted to replace the wooden posts with steel posts, appellees went to investigate and an argument ensued. A shooting erupted resulting in appellants Bill Lindsey, his son Tommy, and appellees Mike and his brother Charles Watts suffering gunshot wounds.

The evidence is in dispute as to the aggressors. The appellants’ version was that they fired upon the appellees in self-defense after the appellees started shooting at them. However, the appellees’ version, which the jury apparently accepted, was that when they approached the appellants, who were erecting the metal posts at the cattle guard, appellee Mike Watts informed appellant Bill Lindsey that he was not supposed to do anything to the cattle guard. Thereupon, appellant Tommy Lindsey confronted Mike Watts with a sledgehammer, shaking the hammer in his face. As Mike Watts retreated, Tommy Lindsey advanced and made threatening gestures with the sledgehammer. When Mike Watts had backed up to his truck, he pulled a shotgun from the front seat, at which point Tommy Lindsey stopped. Bill Lindsey, standing near his truck at the cattle guard, pointed a rifle at Mike Watts, who turned toward Bill Lindsey. There was evidence that Bill Lindsey shot at Mike Watts, who then returned the fire which wounded Lindsey. Mike Watts then jumped behind his truck and was fired upon by Tommy Lindsey. Watts fired one more shot which wounded Tommy Lindsey. Charles Watts, who was unarmed, and his brother Mike then retreated from the scene. There was evidence that all of the appellants, Bill Lindsey, his wife Marie, his sons Tommy and Billy aided and abetted or were all shooting at the Wattses with rifles and a pistol as the Wattses retreated. Mike Watts was shot in the back approximately 180 yards from the cattle guard. His brother Charles, unarmed, suffered a wound to his right eye as he was prone on the ground looking back toward the appellants who were approximately 200 yards from him at the cattle guard.

It was for the jury to resolve the conflicts in the evidence, the credibility of the witnesses and the reasonable probability of the occurrence in determining whether the appellants committed an unjustifiable assault and battery upon the appellees. When we view the evidence which is most favorable to the appellees, as we must do on appeal, we hold there is ample substantial evidence to support the jury’s verdict.

Appellants next assert that the trial court erred in not granting their motion for a mistrial because of the asserted misconduct of a member of the jury. One of the appellants observed appellees’ attorney talking to a juror during a recess. The trial court conducted a hearing which revealed that a jury was reading an exhibit which had been introduced in evidence the previous day. The juror remarked to the appellees’ attorney that the exhibit had not been shown to the jury. The attorney responded that the jury could “take all of the exhibits” with it if it desired. The court refused to grant a mistrial. In the absence of a manifest abuse of the wide latitude of discretion which is accorded to the trial courts in acting on a motion for a mistrial, we do not reverse. Garner v. Finch, 272 Ark. 151, 612 S.W. 2d 304 (1981). Here, appellants have not demonstrated abuse of discretion.

Appellants contend that the damages awarded were excessive since they appear to have been given under the influence of passion or prejudice. Further, the testimony is insufficient, particularly in the absence of medical evidence. Mike Watts was awarded $5,000 compensatory and $5,000 punitive damages. There was evidence, as previously discussed, that Mike Watts was shot in the back as he retreated from the scene of the argument; he was hospitalized for three days, his medical bills approximated $570; he was disabled for more than three months during which time it was necessary to employ others to help operate his dairy farm. He produced checks totaling $750 as a part of that expense. Charles Watts, who was awarded @5,000 punitive damages and @55,000 compensatory damages, was shot while he was unarmed and prone on the ground after fleeing the scene. As a result of the wound, he was hospitalized for eight days with medical bills totaling approximately @3,000; his right eye was removed and replaced with an artificial one; and, further there was damage to an ear drum, sinus cavity and nerve damage to his mouth and teeth.

A jury’s award will not be set aside unless it is so disproportionate to the evidence that it shocks the conscience of the court or demonstrates passion or prejudice. Mustang Electrical Services, Inc. v. Nipper, 272 Ark. 263, 613 S.W. 2d 397 (1981). Here, we cannot say the awards by the jury are excessive nor can we agree with appellant that the evidence is insubstantial because of insufficient medical evidence.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Floyd Ray WASHINGTON v. STATE of Arkansas
    CR 81-12
    621 S.W. 2d 216
    Supreme Court of Arkansas
    Opinion delivered September 21, 1981

      E. Alvin Schay, State Appellate Defender, by: Jack T. Kearney, Deputy Appellate Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

The appellant, Floyd Ray Washington, argues three reasons for reversing his convictions of aggravated robbery and theft: His arrest was without probable cause; his identification was the result of an impermissibly suggestive pretrial lineup; and, two of his three prior convictions were improperly admitted into evidence. Finding no merit to these arguments, we affirm the judgment.

Washington was charged with robbing the Holly Farms Fried Chicken store on Asher Avenue in Little Rock, Arkansas, on June 3, 1979. A police detective, acting on a tip that Washington had committed several so-called “chicken” robberies, compiled a packet of six photographs from police files, made one photograph, and showed it to the manager of a Kentucky Fried Chicken store that had been robbed. The manager identified Washington. The next day the same detective, with another detective, saw a car being driven by one of Washington’s friends, a man who had been picked up a few days earlier in connection with another robbery. The detectives pulled the car over, found Washington to be a passenger and arrested him without a warrant.

Washington argues that his arrest was without probable cause and the charges must be dismissed. In this case the existence of probable cause is irrelevant to whether the conviction was obtained in violation of due process of law. An arrest without probable cause would not merit reversal and dismissal of a conviction. State v. Block, 270 Ark. 671, 606 S.W. 2d 362 (1980).

In a lineup held on the 14th of June, an employee of Holly Farms identified Washington as the man who came in, put a gun on her, ordered her to open the safe, and robbed her. It occurred in the back part of the building and, according to the victim, it was well-lighted. She had difficulty opening the safe and asked Washington to “take the gun off” so she could open it. She still had difficulty, Washington pulled his gun again, and finally she opened the safe and gave him the contents. She said this all occurred over a five or six minute time span. She said he was short, certainly not taller than her height of five feet four.

The lineup she saw was composed of six black men, with Washington on one end and the shortest. He is approximately five feet, one to two inches tall. The next tallest was five feet, five inches. The tallest was just under six feet. Washington had what she described as a thin “scattered beard.” Four of the individuals in the lineup had facial hair.

Washington’s argument is that there was no one in the lineup as short as he is and, therefore, the lineup was impermissibly suggestive. The detective who made up the lineup said he provided people as close as he could to Washington’s size. He said he simply did not have any shorter people available.

In McCraw v. State, 262 Ark. 707, 561 S.W. 2d 71 (1978), we said that whether identification testimony is admissible is essentially a question of reliability. It is argued that the pretrial lineup was too suggestive because Washington was the shortest man, on the end, and the victim knew he was short. Washington was not entitled to have six men all with facial hair, five feet, one inch tall. None of the men were “tall” in the usual sense and one was about the height the victim gave to the police — about five feet, four.

There are many factors to be considered in determining reliability: The opportunity to observe the criminal, the accuracy of the victim’s description, the amount of certainty of the victim at the time of the confrontation, and the length of time between the crime and the identification, all to be weighed against any suggestions. McCraw v. State, supra. When all these factors are weighed, the identification in this case cannot be seriously challenged. It was well-lighted. The employee described him fairly accurately. Eleven days later she, without hesitation, picked him out of a lineup. We cannot say, viewing the circumstances as a whole, that the lineup was patently tainted.

Washington was charged as a habitual criminal and three of his prior convictions were admitted as evidence of that fact. Two were for offenses that occurred after the date of the robbery in this case. It is argued that such convictions are not properly admissible as prior convictions. The same argument was made by Washington in the case of Washington v. State, 271 Ark. 420, 609 S.W. 2d 33 (1980), and we decided it had merit. However, shortly thereafter, we overruled that decision in Conley v. State, 272 Ark. 33, 612 S.W. 2d 722 (1981). We decided that Arkansas’s habitual criminal statute was not designed to act as a deterrent, as we had supposed in Washington, but is simply a punitive statute, which provides in clear language that in an appropriate case, a prior conviction, regardless of the date of the crime, may be used to increase punishment.

Since we adhere to the Conley decision, Washington’s argument must fail.

Affirmed.


author: Darreu. Hickman, Justice.

text:
    Curtis URQUHART v. STATE of Arkansas
    CR 81-35
    621 S.W. 2d 218
    Supreme Court of Arkansas
    Opinion delivered September 21, 1981

      Leon N. Jamison, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Darreu. Hickman, Justice.

Curtis Urquhart defended a rape and burglary charge on the basis that the woman consented to sexual intercourse; he claimed she invited him into her home. The woman, a deaf-mute, and Urquhart knew each other by sight because Urquhart frequently visited in the neighborhood.

The jury chose to believe the victim and Urquhart was sentenced to fifteen years for burglary, forty years and a $4,000.00 fine for rape, the sentences to run consecutively.

We fine no merit to the four allegations of error and affirm the judgment.

The woman testified that she was awakened during the night of July 17, 1980, by a man who had one hand on her mouth and the other on her neck. She said she tried to resist but was unable to prevent the rape. During the episode she felt what she thought was a large scar on the man’s shoulder. She said she was able to see her assailant when he left the house and knew it was Urquhart. She immediately went to a neighbor’s residence who took her to a friend’s house who understood sign language. She told the friend she was raped by Urquhart. They went to the police station where she again reported the rape, describing her assailant who she said again was Urquhart. She spoke to the police through her friend.

The police, in their investigation, found a palm print in her apartment and evidence that the door had been forced. After Urquhart was arrested they found he had a large scar on his shoulder and photographed it. The palm print matched Urquhart’s.

It is first alleged that the court improperly admitted the photograph of the scar and the palm print. There was no objection made to this evidence at trial and its admissibility will not be considered on appeal. Smith v. State, 268 Ark. 282, 595 S.W. 2d 671 (1980). The court did require Urquhart to remove his shirt before the jury and exhibit the scar. The defense objected, arguing that this violated the fifth amendment to the United States Constitution which prohibits compelled self-incrimination. The argument must fail for two reasons. The fifth amendment only protects evidence of a testimonial or communicative nature and he suffered no prejudice. In Schmerber v. California, 384 U.S. 757 (1966), a defendant was forced to give blood samples which were to be used to prove he was intoxicated. In Coffey v. State, 261 Ark. 687, 550 S.W. 2d 778 (1977), a defendant was required to speak so his voice could be recorded for identification. In Williams v. State, 239 Ark. 1109, 396 S.W. 2d 834 (1965), a photograph of a scar on the defendant’s chest was admitted. In determining whether evidence is testimonial in nature the courts look to see if the activity performed is for the purpose of communication, such as a gesture; if it is, the activity is privileged. McCormick on Evidence, § 124 (1972). In any event, there could have been no possible prejudice to him because he conceded in his opening statement that the issue would not be his identity but whether there was consent.

A general allegation is made that the victim’s friend and the police officer, to whom the victim first related her story, were allowed to repeat in court what she told them, violating the hearsay rule. There is no doubt that the judge was too lenient in this regard; however, there was no possible prejudice because the only material facts the witnesses related beyond the fact she reported she had been raped, was her description of the assailant, a matter that was not in issue.

Generally, a rape victim’s report to a third party that a rape occurred is admissible. It is admitted to prove she did not remain silent, or sometimes as an excited utterance. Pleasant v. State, 15 Ark. 624 (1855). Normally the details of her report are not admissible. Gabbard v. State, 225 Ark. 775, 285 S.W. 2d 515 (1956); Lindsey v. State, 213 Ark. 136, 209 S.W. 2d 462 (1948); Williams v. State, 66 Ark. 264, 50 S.W. 517 (1899); Davis v. State, 63 Ark. 470, 39 S.W. 356 (1897). Sometimes the details are admitted to rehabilitate a witness whose testimony is seriously questioned or impeached. Ark. Stat. Ann. § 28-1001, Rule 801 (Repl. 1979). There was no basis for admitting in this case anything except the fact she reported the rape, but as we have explained, Urquhart was not prejudiced by the error.

Urquhart questions the sufficiency of the evidence, but we have said repeatedly that the testimony of a victim of rape does not have to be corroborated by other testimony. It is the jury’s function to decide whom to believe, not this court’s. There was substantial evidence of Urquhart’s guilt. Kitchen v. State, 271 Ark. 1, 607 S.W. 2d 345 (1980).

Urquhart’s counsel asked that the two prison sentences, run concurrently; the state asked for consecutive sentences. The judge said he would take the matter under advisement. Evidently he did. A week later he entered an order for the terms to be served consecutively. It is argued that the judge did not use any discretion in ordering consecutive sentences and that Acklin v. State, 270 Ark. 879, 606 S.W. 2d 594 (1980) requires reversal of that order. [See also Woolsey v. United States, 478 F. 2d 139 (8th Cir. 1973)]. In Acklin the judge said that his customary rule was to impose consecutive sentences when the jury decided the sentences. We held that that was not discretion. But there is no rule that requires a trial judge to set forth in writing that he has exercised discretion. Since this is a matter within his discretion we will not presume he did not exercise that discretion unless there is some indication otherwise. Being none shown, the judgment is affirmed.

Affirmed.


author: John I. Purtle, Justice.

text:
    Solomon Kirk ESKEW and Curtis Leroy BOLTON v. STATE of Arkansas
    CR 81-44
    621 S.W. 2d 220
    Supreme Court of Arkansas
    Opinion delivered September 21, 1981

      John W. Walker, PA., by: James P. Massie, and William R. Simpson, Jr., Public Defender, by: Deborah Sailings, Deputy Public Defender, for appellee.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellants were convicted in the Pulaski Circuit Court of rape and kidnapping, and their sentences were fixed at 20 years and 15 years respectively, to run consecutively.

On appeal appellants argue two points: (1) the court erred in not allowing evidence on the question of prior sexual misconduct on the part of the prosecuting witness; and, (2) the evidence was insufficient to support the appellants’ conviction for a class A felony.

The appellants admitted having sexual intercourse with the prosecuting witness but claimed it was by mutual consent. The prosecuting witness testified she was forced to engage in sexual intercourse and deviate sexual activity. The appellants took the prosecuting witness out by the Little Rock airport where the alleged crime occurred. They then drove her back to the central part of Little Rock and released her about three blocks from her home.

We first deal with the failure of the court to allow evidence of the prosecuting witness’s prior sexual conduct.. We think the court was entirely correct in this ruling. Ark. Stat. Ann. § 41-1810.1 (Repl. 1977) clearly holds such evidence is inadmissible unless it meets certain tests outlined in Ark. Stat. Ann. § 41-1810.2. We have consistently held that evidence of prior consensual sexual conduct is inadmissible unless such prior sexual activities were with the accused. In that event the testimony is allowed only to show that consent may have been given. See Houston v. State, 266 Ark. 257, 582 S.W. 2d 958 (1979); Marion v. State, 267 Ark. 345, 590 S.W 2d 288 (1979).

Evidence of prior sexual conduct on the part of a prosecuting witness is not admissible simply to show she had had prior sexual conduct. The fact that a woman may be free with her sexual favors does not entitle anyone to such favors against her wishes. In the present case the prosecuting witness clearly and unequivocally stated she was forcibly raped, and she exhibited bruises and abrasions to the doctor who examined her following the rape and to other witnesses who testified at the trial. The doctor verified she had recently engaged in sexual intercourse. The appellants both stated she freely gave them the favor, and we therefore have a factual question to be presented to the jury. The jury chose to believe the prosecuting witness, and we are not at liberty to disturb that decision.

The second argument by appellants is that the evidence was insufficient to support the appellants’ conviction for class A felony kidnapping. This may well be true but the fact remains that the appellants never requested an instruction on class C kidnapping, and the matter is raised for the first time on appeal. We need not cite authority for the proposition that we do not consider matters raised for the first time on appeal.

Affirmed.

Adkisson, C.J., not participating.


text:
    Jennifer Lynn MANNIX v. STATE of Arkansas
    CR 81-66
    621 S.W. 2d 222
    Supreme Court of Arkansas
    Opinion delivered September 21, 1981

      William. R. Simpson, Jr., Public Deftider, by: Sandra T. Berry and Deborah Ann Sailings, Deputy Public Defenders, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

On September 14, 1979, appellant Jennifer Lynn Mannix was charged with murder. She was committed to the Arkansas State Hospital for a mental examination. The examining psychiatrist found that she was unable to appreciate the criminality of her acts or to conform her behavior to the requirement of the law. On December 7, 1979, the trial court dismissed the criminal charge because of her mental disease and committed her to the hospital pursuant to our criminal commitment statute, Ark. Stat. Ann. § 41-612 (Repl. 1977). On January 11, 1980, the psychiatrist assigned to this case reported that appellant’s psychotic condition was in remission and she could be expected to remain that way as long as she continued to take the prescribed anti-psychotic medication and as long as she received adequate medical-psychiatric supervision.

On January 14, 1981, appellant filed a petition asking that the circuit court criminal commitment be terminated, and that any continued commitment be by way of civil commitment by the probate court as provided in Ark. Stat. Ann. Title 59, Chapter 14 (Supp. 1979). Even though the criminal charge had been dismissed for over two years, the circuit court denied the petition and ordered that appellant remain committed.

Both parties recognize that the following paragraph from Stover v. Hamilton, 270 Ark. 310, 604 S.W. 2d 934 (1980) is squarely on point.

The Commentary following Ark. Stat. Ann. § 41-607 indicates the holding in Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972), is to the effect that a person may not be held in confinement for a period in excess of one year on an incompetency commitment in a criminal proceeding. The Commentary indicates the Commission felt the state should not incarcerate a person, who has never been tried for or convicted of a criminal offense, for a period in excess of one year. The Commission felt that confinement for longer periods should be by traditional civil commitment. We think this is sound logic. We must necessarily read imto Ark. Stat. Ann. § 41-612 a limitation which prevents a person from being held indefinitely to the extent he is deprived of due process of law. The present law relating to involuntary civil commitment is Ark. Stat. Ann. § 59-1401 ét seq.

The Attorney General asks us to overrule Stover. We decline.

We have the power to overrule a previously rendered opinion. Gregg v. Road Improvement District No. 2, 169 Ark. 671, 277 S.W. 515 (1925). However, the rights and interests of individuals, the uniformity of law and the proper administration of justice require settled law. We will uphold our prior decisions unless an injustice would result. Rhea v. State, 104 Ark. 162, 147 S.W. 463 (1912). No injustice has been pleaded or proved as a result of the Stover decision and we decline to overrule it.

Reversed.

Hickman, J., dissents, having addressed his views in Stover v. Hamilton, 270 Ark. 310, 604 S.W. 2d 934 (1980).

Adkisson, C.J., not participating.


text:
    Roy Eugene VANCE v. STATE of Arkansas
    621 S.W. 2d 224
    Supreme Court of Arkansas
    Opinion delivered September 21, 1981

      DeLoss McKnight, for appellant.

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

Appellant, Roy Eugene Vance, by his attorney, has again filed for a rule on the clerk. In a Per Curiam opinion issued July 13, 1931, we denied a similar motion.

His attorney, DeLoss McKnight, has attached an affidavit admitting that the record was entered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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


text:
    In Re: Petition of Committee on Professional Ethics of the Arkansas Bar Association for the Establishment of Trustee Proceedings
    81-100
    621 S.W. 2d 623
    Supreme Court of Arkansas
    Opinion delivered September 21, 1981

      P. K. Holmes, III, and B. Frank Mackey, Jr. for petitioner.
   Per Curiam.

The Committee on Professional Ethics of the Arkansas Bar Association has petitioned this Court to order, by rule, that the probate judge shall have the jurisdiction to appoint a trustee for a lawyer who is disabled, is deceased or has disappeared. Under the proposal the trustee would make an inventory of the attorney’s files and bank accounts and would then prepare an accounting. The trustee would be authorized to refer the attorney’s files to another attorney or to the client. No mention is made of the disposition of funds accounted for by the trustee. The probate judge would then discharge the trustee from further responsibilities. We decline to order the proposal into effect.

We are asked to confer the jurisdiction on the probate court by rule. Yet, the probate court is a court of special and limited jurisdiction, having only such jurisdiction and powers as are conferred by the constitution or by statute, or are necessarily incident to the exercise of the jurisdiction and powers granted. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W. 2d 810 (1976). The authority and jurisdiction of probate courts are to be strictly construed. Poe v. Case, 263 Ark. 488, 565 S.W. 2d 612 (1978). The proposal deals with substantive law, not procedural law. Courts are reluctant to make substantive law by rule, especially in areas where there is, or might be, a conflict with some act of the General Assembly. Clearly this proposal would conflict with the statutory scheme for establishing a guardianship in the event of an incompetent attorney. Ark. Stat. Ann. Title 57, Chapter 6. The proposal for deceased attorneys would conflict with the statutory scheme for decedents’ estates. Ark. Stat. Ann. Title 57, Chapter 6. There are no probate statutes conflicting with the proposal for attorneys who have disappeared, but there are express conflicting statutes, Ark. Stat. Ann. § 58-201, 202 and 203, that provide chancery court shall have jurisdiction of the estates of missing persons.

It is doubtful that we could fashion any type of rule that would authorize the probate court to administer trusts. Since 1842 our cases have been clear that the establishment, management and execution of a trust are in chancery court. Ex Parte Conway, 4 Ark. 302 (1842).