author: David Newbern, Justice.

text:
    Gene HOWARD and Lillian HOWARD v. John G. GLAZE, Administrator of the Estate of Chloe Sheffield, Deceased, and Bill FLATTE
    86-227
    727 S.W.2d 843
    Supreme Court of Arkansas
    Opinion delivered April 20, 1987

      Trafford & Bray, by: Winfred A. Trafford and C. Norton Bray, for appellants.

      Tapp Law Offices, by: J. Sky Tapp, for appellees.
   David Newbern, Justice.

This appeal results from the chancellor’s decision that a deed from Chloe Sheffield to the appellants, Gene and Lillian Howard, should be set aside. The action was brought by the appellees who are the brother of the now-deceased Chloe Sheffield and the administrator of her estate. The appellees contended that Mrs. Sheffield was incompetent at the time she made the deed and that she was subjected to undue influence by the appellants.

The appellants have stated only one point for appeal: The chancellor’s decision was clearly against the preponderance of the evidence. In his letter opinion, the chancellor did not state directly that he was finding incompetency or undue influence. He referred to a number of irregularities on the face of the instrument as well as factors which might have borne upon the motives of the appellants who arranged the execution of the deed. His opinion continued, in pertinent part:

Each side has presented their case and . . . seems to prove their case. However, when all of the evidence is considered Mrs. Sheffield’s age, situation, and the location and manner of preparation of the deed, the addition of information to the deed, I am convinced that the deed should fall. I’m not satisfied that Mrs. Sheffield was fully and completely exercising her own will and control. Deeds that are executed in the manner of this one, in my opinion, on the very face are suspect.

While he did not say so precisely, we find the chancellor’s opinion sufficient to permit us to conclude he held the deed was invalid because of undue influence, incompetency of the grantor, or both. The evidence and the chancellor’s opinion also raise an issue as to the effect of the alteration of a deed after it has been delivered. We hold that the conclusion that there was undue influence or incompetency was not justified by the evidence presented, and we hold that the alteration of the deed was not the sort which required it to be set aside, thus we reverse.

1. Incompetency and undue influence

Chloe Sheffield was a twice-widowed lady who had accumulated considerable property in the form of a residence, land, cattle, and cash. The appellants, Gene and Lillian Howard, are distant relatives of the late Mr. Sheffield, Mrs. Sheffield’s second husband. Appellee John Glaze, a nephew of Mrs. Sheffield, testified that when she died in October, 1983, he became aware of the deed in question. It did not “look right” to him, so he brought this action to have it set aside, alleging incompetency on the part of the grantor and undue influence on the part of the appellants.

It is undisputed that in August of 1983 Mrs. Sheffield called the appellants and asked them to come to get her because she was unable to care for herself. The appellants moved her into their home where, with the exception of two periods when Mrs. Sheffield was hospitalized, they cared for her until her death in October, 1983. The deed which is the subject of this litigation was allegedly executed while Mrs. Sheffield was hospitalized in Little Rock and undergoing chemotherapy treatment in August, 1983.

The evidence of the appellants showed that they had made an agreement with Mrs. Sheffield for a “support deed.” That is, she agreed to deed property to them in exchange for their agreement to support her and care for her for the remainder of her life. The evidence of the appellees did not contradict that conclusion, however, but tended to show that the agreement was that the appellants would live with Mrs. Sheffield at her home in Mount Ida rather than take her into their home in Pine Bluff. As it turned out, Mrs. Sheffield called the appellants to fetch her from Mount Ida to their home in Pine Bluff when she became too ill to care for herself, and although the parties contemplated that they would all move back to her property in Mount Ida, she died unexpectedly before their plan could go into effect. The evidence showed the appellants had begun moving to Mount Ida before Mrs. Sheffield died.

The appellants make a strong argument that the appellees have presented no evidence which would justify the chancellor’s conclusion with respect to either incompetency or undue influence. Both the abstract and the record support the appellants’ claim. While the brief for the appellees makes references to testimony showing irregularities in the deed and incidents from which it could have concluded the motives of appellant Gene Howard may have been impure, nothing shows either incompetency or undue influence.

The only testimony tending to show incompetency was given by Mrs. Sheffield’s sister, Ollie Busby, who said that after Mrs. Sheffield began chemotherapy treatments she told Mrs. Busby she did not “feel human” and that her head was “not right.” Others testified that Mrs. Sheffield’s illness caused her great pain, but no witness said that she was not alert and cognizant of her surroundings except for the day or so before her death, a time not relevant here. Mrs. Sheffield’s treating oncologist executed an affidavit to the effect that it was his opinion that Mrs. Sheffield was competent to make a deed on August 6, 1983. In his deposition, which was admitted into evidence, he was questioned closely by the appellees’ counsel about the affidavit, and he refused to recant it.

In Housing Authority of the City of Little Rock v. Peters, 244 Ark. 478, 425 S.W.2d 720 (1968), this court reversed a chancellor’s holding that a deed had been the result of incompetency because the weight of the evidence supported a finding that the grantors did have the capacity to make the deed. That is our holding here. As far as we know, no request was made of the chancellor that he enter separate findings of fact and law. See Ark. R. Civ. P. 52(a). In this instance we are not constrained by the requirement of Rule 52(a) that a chancellor’s factual findings be overturned only on the determination that they are clearly erroneous. We find no fault with the chancellor’s factual conclusions, so far as we can determine them from his opinion and order. Rather, we are simply unable to find, in the record before us, factual support for the result he reached.

Lack of competency to make a deed and undue influence are often closely related, and the evidence of one may be relevant to the evidence presented to the other. Thus, we review such allegations together. Rose v. Dunn, 284 Ark. 42, 697 S.W.2d 180 (1984). As noted above, the appellees refer us to considerable evidence which was sufficient to raise the suspicion of the chancellor as to the impurity of the appellants’ motives, particularly their motives in assuring that they came into the property of Mrs. Sheffield when it became apparent to all that her illness was quite serious. However, we cannot find any evidence that they said or did anything to put Mrs. Sheffield in a position of fear or that they committed any fraud upon her or overreached her or coerced her in any way.

2. Deed alteration

Mr. Mullenix, a Montgomery County abstractor, was the scrivener who prepared the deed. His testimony was that Mrs. Sheffield called him and asked him to prepare the deed from her to the appellants. He testified that the deed, as initially drafted by him, retained a life estate in Mrs. Sheffield. That testimony was contradicted by appellant Gene Howard who testified that he returned the deed to Mr. Mullenix, after it had been executed by Mrs. Sheffield, for the addition of the language retaining the life estate. Without the life estate reservation, the conveyance to the appellants would have been in fee simple absolute. Thus, the testimony of appellant Gene Howard was contradictory of that of Mr. Mullenix, but contradictory in a manner unfavorable to the appellants, given the appellees’ contention that any alteration of a deed invalidates it.

The appellees’ contention, that the deed was thus altogether void, is based upon Inglish v. Brenemen, 5 Ark. 377 (1844), in which this court held that the alteration of a promissory note by the insertion by the payee of a date which had the effect of accelerating the due date invalidated the note. While this court made it clear that any such insertion, absent authority from the payee to make it, would invalidate the note, it was also stated that such an alteration “without the consent” of the payor would vitiate the instrument. The opinion thus concluded that when the payee made the insertion in the note, it became incumbent upon him to show by what authority he did so. That is a far cry from holding that any alteration, no matter what it might be and no matter by whom it was made or under what circumstances, vitiates an instrument as the appellees suggest.

Nor is the case of Perry v. Perry, 234 Ark. 1066, 356 S.W.2d 419 (1962), also cited by the appellees, helpful to their position. There, J.C. Perry and his wife Mabel Perry purchased land for $ 1,100, using $900 which belonged to their son. The deed showed the elder Perrys as grantees. When their son, Charles, returned home from the service, Mrs. Perry gave him the deed. He had it altered to show that he was the grantee, and then he recorded it. J.C. and Mabel later separated, and Charles conveyed the land to Mabel who then sought to eject J.C. We held that the alteration of the deed by Charles was of no effect other than a mere spoliation of the deed. We quoted Tiffany on Real Property, 3rd Ed., Vol. 4, page 43, as follows: “The substitution of another name as that of the grantee, without the grantor’s consent, can obviously not operate to vest title in the person whose name is substituted.” We thus held that despite the alteration the deed was valid, and we would not permit one of the grantees, J.C., to be ejected from the land. The invalidity of the attempted alteration was again, as in Inglish v. Brenemen, supra, conditioned upon the lack of consent of the original parties to the instrument.

III American Law of Property, § 12.85 (1974), recognizes that the early common law, following Pigot’s Case, 11 Coke 26b, 27a, 77 Eng. Rep. 1177 (1696), was that any alteration of a deed after execution and delivery rendered the instrument void. The treatise then discusses the many exceptions to that rule but remains somewhat equivocal as to the effect of a “material alteration” under circumstances such as those in this case. We are, however, not troubled here by the early common law rule. We have held that alteration by interlineations purporting to add to the description additional land in a handwritten deed did not affect the original conveyance. Faulkner v. Feazel, 113 Ark. 289, 168 S.W. 568 (1914). It would make no sense to hold that a grantee, by altering a deed, could effect a reconveyance to his grantor and thus avoid all the formalities of conveyancing designed to protect the parties to a deed and third persons. Although we need express no opinion on the validity of the attempted reservation of a life estate, we hold the deed was not altogether invalidated by it.

Reversed.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Ricky Alan WHISENHUNT v. STATE of Arkansas
    CR 86-202
    727 S.W.2d 847
    Supreme Court of Arkansas
    Opinion delivered April 20, 1987

      Phil Barton, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

On January 12, 1984, appellant pled guilty and was sentenced to twenty-five years for aggravated robbery and six years for being a felon in possession of a firearm. The sentences were to run concurrently. About one and one-half years later, appellant filed a petition under A.R.Cr.P. Rule 37, contending that he was denied mental testing and effective assistance of counsel. An attorney was appointed to represent appellant and, following a hearing, the trial court denied the petition. We affirm.

On appeal, appellant basically argues that his guilty plea was not knowingly and voluntarily made because of the ineffectiveness of his counsel. Specifically, appellant contends that (1) his attorney had a conflict of interest, failed to explain appellant’s right to a jury and failed to investigate the facts of his case, and (2) appellant was physically and emotionally incapable of understanding his plea.

The law is settled that there is a presumption that counsel is competent, and the burden is on appellant who must show more than mere errors, omissions, mistakes, improvident strategy or bad tactics. Smith v. State, 291 Ark. 496, 725 S.W.2d 849 (1987). To prove ineffective assistance of counsel, appellant must establish that his counsel’s advice was not within the range of competence demanded of attorneys in criminal cases, and he must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Hill v. Lockhart,_U.S__, 106 S.Ct. 366 (1985) and Strickland v. Washington, 466 U.S. 668 (1984).

Appellant first argues that his attorney, who represented him when he pled guilty, was, at the same time, representing appellant’s wife in her divorce proceeding against him. While he complains now that such a conflict of interest on his attorney’s part somehow prejudiced him, we find the record reflects the attorney, most pointedly, brought this fact to the court’s attention at appellant’s plea and arraignment proceeding. That disclosure prompted the judge to ask appellant if he had any objection to the attorney, and appellant replied no, “I’m not going to fight her [his wife].” Appellant declared to the court that he was satisfied with the services of his attorney. We also find from our review of the record that appellant’s right to a jury trial was fully revealed and discussed at this same proceeding. In accepting appellant’s plea, the trial judge asked appellant whether he understood he was waiving his right to a jury trial, and appellant responded, “Yes, sir.” On this point, we should note, too, that appellant was not a stranger to the criminal justice system procedure, as he had pled guilty once before to an earlier aggravated robbery charge. Thus, we conclude that these two issues appellant now assigns as error were correctly considered and dealt with by appellant’s attorney and the trial court.

Appellant also complains his counsel was ineffective for having failed to investigate the similarities and differences between his case and the one relied upon by the prosecutor. Appellant fails, however, to demonstrate exactly what his attorney should have done but failed to do, and, specifically, how the attorney’s inaction prejudiced his case.

Finally, appellant contends that, because of his suicide attempt prior to his plea and arraignment hearing and because of his wife filing for a divorce, he was not physically or emotionally capable of understanding his plea. This, too, has no merit. The record reflects conflicting testimony concerning the seriousness of his suicide attempt and how distraught he was at his plea and arraignment. Appellant claimed he slashed his arms and lost a lot of blood, but the sheriff testified that appellant merely scratched his arms with something like a plastic fork. The sheriff also testified that appellant did not appear so distraught as to not understand his rights when appellant entered his guilty plea. Appellant’s attorney testified the appellant expressed interest in undergoing a mental examination, but lost interest when he advised appellant there was little chance such an exam would result in appellant serving his time in a mental institution rather than in a penitentiary. Of course, to reverse the trial judge’s denial of post-conviction relief under Rule 37, we would have to find the court’s decision was clearly against the preponderance of the evidence. Hall v. State, 285 Ark. 38, 684 S.W.2d 261 (1985). The appellant has failed to demonstrate the trial court was clearly erroneous in denying his requested post-conviction relief.

Because we believe the trial court was justified in finding that the guilty pleas were knowingly and intelligently given, we affirm.


text:
    Allen Bruce WOODS v. A.L. LOCKHART, Commissioner, L.E. LAGRONE, Warden, Don MASSEY, Records
    86-226
    727 S.W.2d 849
    Supreme Court of Arkansas
    Opinion delivered April 20, 1987

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant, a Correction Department inmate, filed for a declaratory judgment and writ of mandamus in Jefferson County Circuit Court, requesting that appellees be required to recompute appellant’s parole eligibility date. The trial court denied appellant’s request, and he brings this appeal.

Appellant has been convicted and sentenced for felonies on three separate occasions. First, in February 1976, he was sentenced for an armed robbery committed in 1975, and given thirty-two years. He was paroled in August 1982, and, in August 1985, he was convicted of other crimes for which he received four concurrent twenty-year terms to run consecutively to his earlier thirty-two year sentence—making a cumulative sentence of fifty-two years. Next, appellant was sentenced to ten years in March 1986, for another or second armed robbery crime that he committed in September 1983. This ten-year term was made to run concurrently with the twenty-year sentences but consecutively to the thirty-two-year term.

Relying upon Ark. Stat. Ann. § 43-2807.1 (Supp. 1985), appellees determined that appellant is ineligible for parole until he serves his ten-year sentence for his second conviction for armed robbery. The trial court agreed with appellees, and we affirm.

Section 43-2807.1, enacted in 1983, provides, in pertinent part, that any person who commits aggravated robbery subsequent to March 24,1983, and who has previously pled guilty, nolo contendere or been found guilty of aggravated robbery, shall not be eligible for release on parole. Clearly, § 43-2807.1 was in effect when the appellant committed his second aggravated robbery in September 1983. Therefore, he was charged with the knowledge of that law when he committed the crime, and, in fact, we said as much in Tisdale v. Lockhart, 288 Ark. 203, 703 S.W.2d 849 (1986).

In Tisdale, the defendant had two prior felony convictions when he was paroled on his second one in 1978. Under the laws in effect then, Tisdale was eligible for parole after having served one-third of that sentence with credit for good time. In 1983, he was convicted and sentenced to a ten-year term to run concurrently with a twenty-one-year sentence upon which he had been paroled in 1978. In determining Tisdale’s parole eligibility after his third offense, the Correction Department, under Act 93 of 1977 [Ark. Stat. Ann. §43-2829(B)(4) (Repl. 1977)], decided he must serve three-fourths of his ten-year sentence. This resulted in a parole eligibility date which was later than what his parole date would have been under his earlier twenty-one-year sentence. Tisdale argued on appeal that his twenty-one-year sentence should have controlled when determining parole eligibility. We rejected Tisdale’s argument and said:

This argument disregards not only the language of Act 93 but also its obvious intent, which was to lengthen the period of confinement before parole eligibility as the number of prior convictions increases. Everyone is charged with knowledge of the criminal law. Hence, when Tisdale was released on parole in 1978 he must be taken to have known that if he committed a third felony and was convicted, he would be compelled to serve three-fourths of his sentence before being eligible for release on parole. That Tisdale happened to be serving a 21-year sentence has nothing whatever to do with his parole eligibility under Act 93. We are certain that the legislature did not intend, as Tisdale in effect argues, that because Tisdale was serving a 21-year sentence he is entitled to greater leniency than if he had been serving only a 15-year sentence. Act 93 changed the law and thereby gave Tisdale notice of what would happen if he should be convicted a third time. He was so convicted and must suffer the consequences imposed by law. (Emphasis supplied.)

288 Ark. at 244.

Our holding in Tisdale controls here. Appellant committed his second armed robbery when the law (§ 43-2807.1) unequivocally provided no parole eligibility existed for the commission of aggravated robbery, second offense. Therefore, appellant must suffer the consequence of his criminal acts as was imposed by law when he committed his second robbery.

In conclusion, we briefly mention appellant’s misplaced reliance on Bosnick v. Lockhart, 283 Ark. 206, 672 S.W.2d 52 (1984). There, Bosnick was convicted of a murder committed in December 1968, and sentenced to life in prison. At the time of the crime and Bosnick’s conviction, Arkansas law authorized parole eligibility to individuals sentenced to life terms of imprisonment. See Section 28 of Act 50 of 1968. Nevertheless, the Correction Department later denied Bosnick any parole after he was convicted of escape in 1978 because the Department said his parole eligibility had to be determined under a later act—Act 93 of 1977—which was effective at the time Bosnick escaped. Unlike the 1968 law, Act 93 specifically disallowed parole eligibility for persons sentenced to life imprisonment. In Bosnick, we merely held that it was unconstitutional to apply the 1977 act retroactively to Bosnick’s first conviction and that his parole eligibility had to be determined under the law effective when the crime was committed in 1968.

Of course, the situation here differs from the one in Bosnick because the Department made no attempt to apply a new or different law to lengthen appellant’s parole eligibility under his earlier convictions. Instead, and consistent with our holding in Bosnick, the Department calculated appellant’s parole time in accordance with the law in effect at the time his second aggravated robbery was committed, and in doing so, it correctly determined he must serve the entire ten-year sentence he received for that robbery. While such a determination may indirectly affect any parole eligibility he may have otherwise received for his other prior convictions, his parole status was determined by the correct parole statutes in effect at the time appellant committed his numerous crimes.

Accordingly, we affirm.


author: Darrell Hickman, Justice.

text:
    Fred Roosevelt DANDRIDGE v. STATE of Arkansas
    CR 86-190
    727 S.W.2d 851
    Supreme Court of Arkansas
    Opinion delivered April 27, 1987
    [Rehearing denied May 26, 1987.]

      William C. McArthur, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Fred Roosevelt Dandridge was convicted by a jury of two counts of rape, two counts of kidnapping, terroristic threatening and a felon in possession of a gun. He was sentenced to a total of 182 years imprisonment. On appeal he objects to certain testimony as hearsay and to a remark made by the prosecuting attorney during closing argument.

The victim was a high school student, who was raped twice, once on May 22,1985 and again on September-22,"1985. The first rape occurred when Dandridge forced the victim at gunpoint into his car, drove her to a nature trail behind the high school, and raped her. A witness, Barbara Montague, was driving near the school about 4:15 p.m. and saw the victim stumbling along the road. She stopped and found the victim crying and hysterical. The victim was holding her stomach and her shirt and pants were open. The victim told Mrs. Montague that a man held a gun on her and raped her. Dandridge objected to the statement as hearsay. The trial judge held the statement admissible as an excited utterance.

The record reflects the rape occurred about one half hour or less before the statement was made. The victim was crying and hysterical. We find no abuse of the trial court’s discretion in finding the testimony admissible. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981); Burris v. State, 265 Ark. 604, 580 S.W.2d 204 (1979).

Montague drove the victim to a grocery store to call her father. Montague testified that the victim became upset because she thought a car, which was parked next door, belonged to her assailant. Dandridge also objected to this statement as hearsay. We do not agree. It was not offered to prove the car belonged to her assailant but to show that the victim made the statement and was upset. A.R.E. Rule 801(c); Bliss v. State, 288 Ark. 546, 708 S.W.2d 74 (1986).

The second rape occurred when Dandridge and another male forced the victim into their car and took her to the same nature trail. Dandridge held her while the other male raped her. Two days later the victim and some of her friends saw Dandridge drive by the school and pull into the parking lot. The victim became upset and went inside the school. One of her friends started to follow her, but Dandridge grabbed her, threatened her, and told her not to tell the victim his name. The friend, however, did identify Dandridge to the victim. On that same day, Carol Kimble, a deputy sheriff, showed the victim a series of photographs of different men. The victim identified Dandridge.

During cross-examination, Kimble was asked whether another student had identified Dandridge to the victim. Kimble did not believe so. On redirect examination, Kimble said Dandridge was in the lineup because other students had said that “Little Fred” (Dandridge) was the person involved in the incident at school that day. The defense objected to this testimony as hearsay.

This was not hearsay. An out of court statement is not hearsay if it is offered to show the basis of action. A.R.E. Rule 801(c); Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984); Jackson v. State, 274 Ark. 317, 624 S.W.2d 437 (1981). The credibility of the photographic lineup was being challenged, and Officer Kimble was explaining why Dandridge was included in the lineup.

The trial court first ruled it was not hearsay. Later the court corrected itself and ruled it was not prejudicial error because other references were previously made to the same statement. We do not reverse a judgment because a trial judge uses the wrong reason to reach the right result. Marchant v. State, 286 Ark. 24, 688 S.W.2d 744 (1985).

During the prosecuting attorney’s closing argument, he referred to Dandridge as a “gross animal.” A mistrial motion was denied, but the jury was admonished to disregard the remark. The remark was improper but cured by the admonishment. Bliss v. State, supra; Moore v. State, 251 Ark. 436, 472 S.W.2d 940 (1971); Henshaw v. State, 67 Ark. 365, 55 S.W. 157 (1900).

Affirmed.

ERRATA 292 ARKANSAS REPORTS at page 41 Detach at perforation, moisten the back, and paste over the first two lines of the second full paragraph of the text of the opinion in Dandridge v. State on page 41: The victim was a high school student, who was raped twice, once on May 22, 1985 and again on September 11, 1985. The first

      ERRATA 292 ARKANSAS REPORTS at page 41 Detach at perforation, moisten the back, and paste over the first two lines of the second full paragraph of the text of the opinion in Dandridge v. State on page 41: The victim was a high school student, who was raped twice, once on May 22, 1985 and again on September 11, 1985. The first


author: John I. Purtle, Justice.

text:
    Fabian COSTILLO v. STATE of Arkansas
    CR 86-212
    728 S.W.2d 153
    Supreme Court of Arkansas
    Opinion delivered April 27, 1987

      Hubbard, Patton, Peek, Haltom & Roberts, by; William G. Bullock', and Lavender, Rochelle, Barnette, Franks & Arnold, by: Jerry A. Rochelle, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant filed a Rule 37 petition in the trial court on June 17, 1985. The appellant’s primary argument for post-conviction relief is that he was denied his right to counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. He also argues that the submission to the jury of evidence of his prior convictions was in violation of Ark. Stat. Ann. § 41-1005 (Supp. 1985). Ata hearing on May 23, 1986, the trial court denied any relief. It is from this Rule 37 proceeding that the appellant brings this appeal. We hold that both of appellant’s arguments are meritorious.

On May 11, 1981, the appellant was arrested and charged with an aggravated robbery which occurred earlier that same day. Eight days later the trial court sounded the docket for trials to be held in June, 1981. An affidavit of indigency had been filed by the appellant and the court appointed counsel to defend him at a trial scheduled for June 10, 1981. On June 9, 1981, the appellant requested a continuance in order to employ counsel of his own choosing. He objected to appointed counsel because neither appointed counsel nor his partner had had much criminal defense experience. He requested a ninety day extension, then sixty days, and finally thirty days. The court reset the trial for June 23,1981, and released appointed counsel. The appellant was unable to obtain funds to employ counsel before the trial. On the day of the trial appellant appeared in chambers and requested two more weeks within which to employ a lawyer. The request was refused.

The following colloquy occurred on the morning of June 23, 1981:

DEFENDANT: I cannot try the case, Your Honor. Fm not capable of it.
COURT: That was the condition on which the setting was postponed on the 1 Oth of June. Now, this dilatory tactic, in the view of the court will not be tolerated.
DEFENDANT: Your Honor, Fm not trying to postpone anything. I just want someone to represent me.

The court then directed the appellant to defend himself but did require previously appointed counsel to sit at counsel table to answer any legal questions the appellant had. During the trial, counsel offered no advice to the appellant except in direct response to his questions. The appellant protested throughout the trial that he desired competent counsel to represent him. The jury returned a verdict of guilty.

During the sentencing phase the trial court allowed the state to present evidence of alleged prior convictions and the underlying offenses to the jury. The jury determined the number of prior convictions and imposed a sentence of seventy-five years.

Although a notice of appeal was filed with the trial court, the record was never filed with the clerk of this Court and the appeal was never perfected. The appellant filed a Rule 37 petition with the trial court in June of 1985. As required by Arkansas Rules of Criminal Procedure Rule 37.3, a hearing was held on the petition in May of 1986.. The hearing was conducted before a different judge as the trial judge was a witness at the hearing. The court found that the appellant was not entitled to the relief requested. The appeal from that decision was timely filed.

The Sixth Amendment to the United States Constitution guarantees an accused the right to the assistance of counsel in his defense, and this right is made obligatory on the states by the due process clause of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335. Moreover, before a trial court can find that an accused has knowingly and intelligently waived counsel and allow the accused to proceed pro se, the trial court must determine: (1) that the request is unequivocal and timely asserted; (2) that there has been a knowing and intelligent waiver of the right; and (3) that the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues. Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986), citing Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975). Mr. Costillo was not represented by counsel at his trial and there is no showing that he knowingly and intelligently waived this right. The state concedes error. We agree. Accordingly, the decision of the Rule 37 trial court must be reversed and the case remanded for a new trial on the merits.

An additional error asserted by the appellant concerned the sentencing phase of the trial. The jury heard all of the evidence presented by the state regarding Mr. Costillo’s prior convictions, and it was the jury that determined not only the sentence to be given the appellant, but the actual number of prior convictions as well. The Honorable John Goodson, the trial judge, testified at the Rule 37 hearing that under the law in effect when this trial occurred (A.S.A. § 41-1005 (Supp. 1985)), the jury should not have heard the state’s evidence of prior convictions, and should not have been called upon to determine the number of prior convictions. We discussed the proper procedure for introduction of prior convictions in Graham v. State, 290 Ark. 107, 717 S.W.2d 203 (1986), where we stated:

The correct statutory procedure in a bifurcated trial is, after a finding of guilt, for the trial court to hold a hearing, out of the presence of the jury, to determine the number of prior convictions and to then instruct the jury as to the number to be considered by them in fixing the punishment. Although evidence of prior convictions is made a part of the record for appeal purposes, such material is not introduced into evidence to be considered by the jury.

(This decision was subsequent to the trial of the appellant.)

In view of the improper introduction of evidence of prior convictions, and the denial of the Sixth Amendment right to counsel, the case must be reversed and remanded for a new trial.

Reversed and remanded.


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

text:
    Sanford L. BESHEAR, Jr. v. Steve CLARK, Attorney General for the State of Arkansas, William A. McLEAN, Prosecuting Attorney, Thirteenth Judicial District
    86-245
    728 S.W.2d 165
    Supreme Court of Arkansas
    Opinion delivered April 27, 1987

      Sanford L. Beshear, Jr., for appellant.

      Steve Clark, Att’y Gen., by: E. Jeffery Story, Asst. Att’y Gen., for appellees.
   Robert H. Dudley, Justice.

The appellant, Sanford L. Beshear, Jr., a taxpayer and resident of Rison, filed a petition for a Writ of Mandamus in the Circuit Court of Cleveland County seeking to compel the Prosecuting Attorney or the Attorney General to file either a civil complaint or a criminal charge for usurpation against Ronnie A. Phillips for usurping the office of Municipal Judge of Rison. The underlying contentions of Beshear, an attorney, are that: (1) Phillips was appointed as municipal judge in 1977 by the joint action of the City Council of Rison and the Quorum Court of Cleveland County, (2) such an appointment was invalidated by the plurality opinion plus one of the concurring opinions in Pulaski County Municipal Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981), and (3) the appointment was invalid because Phillips is not “an elector of the judicial subdivision wherein the court sits.” See Ark. Stat. Ann. § 22-704 (Repl. 1962), but see also § 22-705.2 (Supp. 1985) (providing that the governing body of a city may appoint the municipal judge from an adjoining county when no qualified attorney from the seat of the court is elected) and Ark. Const, art. 19, § 4 (providing for residency).

The trial court held that the office of municipal judge is a municipal office; that the civil action for usurpation of municipal office must be instituted and prosecuted by the Attorney General; that the petition for the Writ of Mandamus seeking to compel the Attorney. General to file a civil action can be brought only in Pulaski County; and therefore, the Circuit Court of Cleveland County is without venue to direct the Attorney General to file a civil suit for usurpation. We affirm that ruling.

First, we discuss that part of the petition which seeks to compel the filing of a civil suit for usurpation pursuant to Ark. Stat. Ann. § 34-2201 through -2209 (Repl. 1962). In Smith v. State ex rel. Duty, 211 Ark. 112, 199 S.W.2d 578 (1947), a case in point, we held that the office of Judge of Municipal Court is a municipal office, not a county office, and an action brought pursuant to the civil usurpation act, § 34-2201 through -2209, to test the right of the claimant to hold such office could be brought only by the Attorney General and not by the Prosecuting Attorney of the district. In Logan v. Harris, 213 Ark. 37, 210 S.W.2d 301 (1948), another case in point, we said that neither a private individual nor the prosecuting attorney has the right to question the title to the office of Municipal Judge; rather, it can only be questioned by the Attorney General. Just as in Smith, supra, the basis of the holding was that the office of Municipal Judge is a municipal office and Ark. Stat. Ann. § 34-2205 (Repl. 1962) provides: “For usurpation of other than county offices or franchises, the action by the State shall be instituted and prosecuted by the Attorney General.” Following our cases, we hold that the office of Municipal Judge is a municipal office and that an action brought pursuant to the civil usurpation statute to test the right of the claimant to hold such office can be brought only by the Attorney General.

Venue for the petition for a Writ of Mandamus against the Attorney General lies in the county of residence of the Attorney General. The case of Reed v. Wilson, 163 Ark. 520, 260 S.W. 438 (1924), cogently sets out the reasoning:

Where a public official fails to perform a purely ministerial duty, involving no discretion, he may be compelled to do so by mandamus; but, if it be contended that the facts stated in the complaint are sufficient to call for an award of the writ of mandamus as an appropriate remedy . . . , that remedy being of a strictly legal nature,. . . such an action must be prosecuted as a personal one against the officer who refuses to perform his duty, and must be brought in the county where the officer resides [Ark. Stat. Ann. § 34-201]. That answer is complete. The only theory upon which the officer can be sued at all is that he is not the representative of the State, but that his wrongful act of omission is attributable to his refusal to discharge a duty imposed upon him by law. That being true, he must be sued in the county of his residence, in accordance with the provisions of the statute.

The petition for a Writ of Mandamus to direct the Attorney General to perform a ministerial duty must be brought in the county of the General’s residence, in this case, Pulaski County. Thus, the trial court properly dismissed the petition for a writ of mandamus seeking to compel the civil usurpation action for lack of venue.

On appeal, the appellant additionally contends that the trial court erred by failing to compel the Prosecuting Attorney to file a criminal usurpation action pursuant to Ark. Stat. Ann. § 41-3956. The appellant did cite the criminal statute in his petition, but did not bring it to the trial court’s attention. He only mentioned the civil usurpation statute, § 34-2204, and argued that venue of the Writ of Mandamus for the civil usurpation action was properly in Cleveland County. He did not ask for a ruling on the criminal usurpation phase of the case, nor did he bring it to the trial court’s attention. Since the matter was not brought to the trial court’s attention and since the trial court did not rule on the issue, we will not consider it. A matter cannot be raised on appeal for the first time.

Affirmed.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. We cannot say

with a straight face that the office of municipal judge is a municipal office as opposed to a county office, not as long as the decision in Pulaski County Municipal Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981), stands. In that case we held that a county municipal court is constitutional. Obviously, that judge is a county officer.

The majority does attempt to put some distance between it and that case by describing the decision as a “plurality” decision. But we are mainly responsible for the mess that exists in the “municipal court” system. Our original error was made in 1915 in the case of State v. Woodruff, 120 Ark. 406, 179 S. W. 813, when we held a city or municipal court had county wide jurisdiction. It led to the mischief that has resulted in a plethora of municipal courts in Arkansas, all sharing the same county wide jurisdiction and many created purely for local political reasons and to raise money. For example, Pulaski County has seven municipal courts, all equally free to hear any case arising from any place in the county. For example, a citizen of Little Rock can be arrested in North Little Rock and tried in Sherwood. Evidently, a gentleman’s agreement only prevents such cases.

We have done the very thing we have told the legislature numerous times that it cannot do under the constitution: create a court. Walker v. Arkansas Department of Human Services, 291 Ark. 43, 722 S.W.2d 558 (1987). The existing municipal court system is loose, running free of the constitution and subject only to our decisions and legislative acts, which are usually local acts in violation of Amendment 16 to the Arkansas Constitution. We have on two occasions struck down such courts. See Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984); Lawson v. City of Mammoth Spring, 287 Ark. 12, 696 S.W.2d 712 (1985). Others, for one reason or another, we have yet to deal with. See Horn v. State, 282 Ark. 75, 665 S.W.2d 880 (1984).

We can correct our mistakes or continue to brood this system we have hatched. It is doubtful the legislature will deal with the question, and the municipal judges have shown no inclination to address the problem. The longer we wait to acknowledge our mistakes the worse it will get. I agree that the municipal court judge is a municipal officer and that’s all he or she is or can be. For that reason I join in the decision.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Allen DUNLAP d/b/a AMERICAN ARCADE v. STATE of Arkansas
    CR 86-138
    728 S.W.2d 155
    Supreme Court of Arkansas
    Opinion delivered April 27, 1987

      John Wesley Hall, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted of promotion of obscene material under Ark. Stat. Ann. § 41-3585.2 (Supp. 1985). Fie argues five points of appeal, but since none of the points involves the sufficiency of the evidence, we need not recite the facts. We affirm the conviction.

Appellant’s first point is that the material statute, § 41-3585.2, is void for vagueness under the Free Speech and Due Process provisions of the first and fourteenth amendments to the Constitution of the United States.

In Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985), the Supreme Court gave a concise review of its holdings and guidelines in the field of obscene materials.

Roth [Roth v. United States, 354 U.S. 476 (1957)] held that the protection of the First Amendment did not extend to obscene speech, which was to be identified by inquiring “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Id., at 489 (footnote omitted). Earlier in its opinion, id., at 487, n. 20, the Court had defined “material which deals with sex in a manner appealing to prurient interest” as:
‘7.c., material having a tendency to excite lustful thoughts. Webster’s New International Dictionary (Unabridged, 2d ed., 1949) defines “prurient,” in pertinent part, as follows:
“ ‘. . . Itching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd..."
“Pruriency is defined, in pertinent part, as follows:
“ . . Quality of being prurient; lascivious desire or thought . . .’
“See also Mutual Film Corp. v. Industrial Comm’n, 236 U.S. 230, 242 (1915), where this Court said as to motion pictures: \ . . They take their attraction from the general interest, eager and wholesome it may be, in their subjects, but a prurient interest may be excited and appealed to. . .’(Emphasis added.)
“We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I., Model Penal Code, § 207.10(2) (Tent. Draft No. 6, 1957), viz:
“ ‘. . . A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters . . .’ See Comment, id., at 10, and the discussion at page 29 et seq.”
Under Roth, obscenity was equated with prurience and was not entitled to First Amendment protection. Nine years later, however, the decision in Memoirs v. Massachusetts, 383 U.S. 413 (1966), established a much more demanding three-part definition of obscenity, a definition that was in turn modified in Miller v. California, 413 U.S. 15 (1973). The Miller guidelines for identifying obscenity are:
“(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, [408 U.S. 229] at 230, quoting Roth v. United States, supra, [354 U.S.] at 489; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Id. at 24.
Miller thus retained, as had Memoirs, the Roth formulation as the first part of this test, without elaborating on or disagreeing with the definition of “prurient interest” contained in the Roth opinion.

The statute at issue was obviously drafted pursuant to the guidelines set out in Miller v. California, 413. U.S. 15 (1973). Appellant argues, however, that the Miller majority was slim; that the composition of the Supreme Court of the United States has changed since 1973; and that in the more recent case of Kolender v. Lawson, 461 U.S. 352 (1983), the Supreme Court has established a new vagueness analysis under which the critical inquiry is whether an allegedly vague statute encourages arbitrary, discriminatory enforcement by police, prosecutors, judges, and juries.

We recognize the difficulty in defining obscenity. In fact, barely more than a decade after the Supreme Court defined obscenity in Roth v. United States, 354 U.S. 476 (1957), Justice Harlan in Ginsberg v. New York, 390 U.S. 629 (1968), stated “the subject of obscenity has produced a variety of views among members of the Court unmatched in any other course of constitutional adjudication. In the 13 obscenity cases [as of 1968] in which signed opinions were written, [there] has been a total of 55 separate opinions among the Justices.” 390 U.S. at 704-5. True to form, in New York v. Ferber, 458 U.S. 747 (1983), there were four separate opinions. Although the Supreme Court has had difficulty with the definition of obscenity, and even though the composition of the Supreme Court has changed, we are constrained to follow Miller. In addition, we are not convinced that the guidelines pronounced in Miller, and thus also our statutory definition of “obscene material,” have been made constitutionally infirm by the opinion in Kolender, supra. In Kolender, which did not involve obscenity, the Court explained that “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender, 461 U.S. at 357. The Court noted that although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, it has recently recognized that the more important aspect of the doctrine is the requirement that a legislature establish minimal guidelines to govern law enforcement. Thus, even if the Court has recently focused more attention on the second phase of the analysis, it was nevertheless a consideration before Kolender. Further, even if we examine the statute with special emphasis on the question of whether it encourages arbitrary, discriminatory enforcement, we find that it does not. Our obscenity statutes provide sufficient guidelines to law enforcement personnel to prevent arbitrary, discriminatory enforcement.

Ark. Stat. Ann. § 41-3585.1(4) (Supp. 1985) defines “obscene material”:

(4) “Obscene material” means that material which:
(a) Depicts or describes in a patently offensive manner sadomasochistic abuse, sexual conduct, or hard-core sexual conduct;
(b) Taken as a whole, appeals to the prurient interest of the average person, applying contemporary statewide standards; and
(c) Taken as a whole, lacks serious literary, artistic, political, or scientific value.

Appellant argues that the statute is additionally void for vagueness because it uses the term “prurient interest of the average person” in subsection (4)(b) which is undefined in the statute and which no longer has any substantive meaning. Appellant quotes several dictionary definitions of “prurient” from 1935 forward and argues that the more recent definitions do not contain “shamefulness” or “morbidness,” but rather describe normal human responses which cannot be considered obscene; that the jury was instructed that “‘[p]rurient interest’ is a morbid, sick, or shameful interest in sex, as distinguished from a normal interest in sex”; that two defense witnesses, Dr. Stevens and Dr. Moneypenny, testified that “average persons” do not have “morbid, sick or shameful interests in sex”; that the term is thus vague and confusing and cannot provide notice; and, therefore, use of the term in our statute makes it void for vagueness. This argument is also without merit.

According to appellant’s own history of Webster’s definitions, the 1961 edition did not use the terms “shameful” or “morbid” in defining “prurient,” yet in Miller, supra, which was decided in 1973, the Supreme Court used the term “prurient” in establishing guidelines for defining “obscenity.” Further, the Court has continued to use the term “prurient interest” in discussing obscenity cases, and the definition of that term contained in the jury instruction in the instant case was tacitly approved by the Supreme Court as recently as 1985 in Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985).

Further, the term “appeal” is defined as follows:

1. An earnest or urgent request, entreaty, or supplication.
2. A resort or application to some higher authority, as for sanction, corroboration, or decision ... 3. The power of attracting or of arousing interest . . .

The American Heritage Dictionary of the English Language 62 (1981).

After examining our statute as a whole, we are convinced that the legislature intended for the word “appeals,” in the following statutory definition of “obscene material,” to have the first definition quoted above:

(4) “Obscene material” means that material which:
(b) Taken as a whole, appeals to the prurient interest of the average person, applying contemporary statewide standards;

(Emphasis added.)

Thus, “obscene material” is that which, taken as a whole and applying contemporary statewide standards, attempts to activate prurient interests. The average person is quite capable of making that determination and whether or not the material is successful in doing so is beside the point.

As mentioned previously, our obscenity statute was obviously drafted pursuant to the guidelines established in Miller. The first of those guidelines is: “whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, . . Miller, 413 U.S. at 24. At first blush, it might seem that the legislature had mistakenly transposed the words of the Miller guideline and, thereby, created a new concept by using the phrase “prurient interest of the average person.” However, in Hamling v. United States, 418 U.S. 87, 128-30 (1974), the Supreme Court stated:

Petitioners contend that the District Court’s instruction was improper because it allowed the jury to measure the brochure by its appeal to the prurient interest not only of the average person but also of a clearly defined deviant group. Our decision in Mishkin v. New York, 383 U.S. 502, 16 L. Ed. 2d 56, 86 S. Ct. 958 (1966), clearly indicates that in measuring the prurient appeal of allegedly obscene materials, i.e., whether the “dominant theme of the material taken as a whole appeals to a prurient interest in sex,” consideration may be given to the prurient appeal of the material to clearly defined deviant sexual groups. Petitioners appear to argue that if some of the material appeals to the prurient interest of sexual deviants while other parts appeal to the prurient interest of the average person, a general finding that the material appeals to a prurient interest in sex is somehow precluded.
The jury was instructed that it must find that the materials as a whole appealed generally to a prurient interest in sex. In making that determination, the jury was properly instructed that it should measure the prurient appeal of the materials as to all groups. Such an instruction was also consistent with our recent decision in the Miller case. We stated in Miller:
“As the Court made clear in Mishkin v. New York, 383 U.S., at 508-509 [16 L. Ed. 2d 56], the primary concern with requiring a jury to apply the standard of ‘the average person, applying contemporary community standards’ is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person — or indeed a totally insensitive one.” 413 U.S., at 33, 37 L. Ed. 2d 419 (emphasis added).

The legislature’s phrasing of subsection (4)(b) does not violate the standard established in Miller and further explained in Hamling. Consequently, it does not render the statute void for vagueness.

Appellant’s final vagueness argument is that the statute uses a circular definition which ordinary persons cannot understand in defining “obscene material.” He argues that the result of the circularity is that, in effect, our statute defines “obscene material” as a patently offensive depiction done in a patently offensive manner. This argument is also without merit and requires little discussion. Again, Ark. Stat. Ann. § 41-3585.1 (Supp. 1985) provides the following definition of “obscene material”:

(4) “Obscene material” means that material which:
(a) Depicts or describes in a patently offensive manner sadomasochistic abuse, sexual conduct, or hard-core sexual conduct;

“Sadomasochistic abuse,” “sexual conduct,” and “hard-core sexual conduct” are all defined in the same statute as follows:

(2) “Hard-core sexual conduct” means patently offensive acts, exhibitions, representations, depictions, or descriptions of:
(a) Intrusions, however slight, actual or simulated, by any object, any part of an animal’s body, or any part of a person’s body into the genital or anal openings of any person’s body.
(b) Cunnilingus, fellatio, anilingus, bestiality, lewd exhibitions of the genitals, or excretory functions, actual or simulated.
(8) “Sadomasochistic abuse” means flagellation, mutilation, or torture by or upon a person who is nude or clad in undergarments or in revealing or bizarre costume, or the condition of being fettered, bound, or otherwise physically restrained on the part of one so clothed, in a sexual context.
(9) “Sexual conduct” means human masturbation or sexual intercourse.

The statutory definition read as a whole, and not as appellant has abbreviated it, is simply not circular.

Appellant’s second point of appeal also contains subpoints. He argues that the trial court erred in barring him from presenting evidence of the general availability of sexually explicit adult materials in the Little Rock metropolitan area at the time of the alleged offense as evidence of tolerance of the material or of community standards. He further argues that the trial court thereby shifted to him the burden of proving community standards which violated the due process clause. The arguments have no merit.

Appellant proffered testimony that several commercial sources of material similar to that in question were “fairly busy” when visited by the witness. All of the commercial sources were located in the Little Rock metropolitan area. The trial court ruled that the testimony was not admissible. The ruling was correct for a number of reasons.

In Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), decided on the same day as Miller, supra, the Court held that it was not error for the trial judge “to fail to require” expert evidence that the materials were obscene when the materials themselves were placed in evidence. “The films, obviously, are the best evidence of what they represent.” 413 U.S. at 56. Footnote 6 to the foregoing sentence provides in pertinent part:

This is not a subject that lends itself to the traditional use of expert testimony. Such testimony is usually admitted for the purpose of explaining to lay jurors what they otherwise could not understand. Cf. 2 J. Wigmore, Evidence §§ 556, 559 (3d ed.) (1940). No such assistance is needed by jurors in obscenity cases; indeed the “expert witness” practices employed in these cases have often made a mockery out of the otherwise sound concept of expert testimony. See United States v. Groner, 479 F.2d —, — (slip opinion, at 19-20) (1973); id.,_ (slip opinion, pp. 24-25) (Ainsworth, J., concurring). “Simply stated, hard core pornography. . . can and does speak for itself.” United States v. Wild, 422 F.2d, at 34, 36 (CA2 1970), cert. denied, 402 U.S. 986, 29 L.Ed. 2d 152, 91 S. Ct. 1644 (1971).

Here, the State met its burden of proof of obscenity by introducing the materials themselves. No separate proof of community standards was necessary. Appellant was not required to prove that the materials were not obscene, nor was he required to prove community standards. The fact that he chose to offer such proof does not mean that the burden was shifted.

The trial judge ruled correctly in excluding the proffered evidence. The proffered evidence would have tended to prove only that similar hard-core pornographic materials could be purchased at other locations in the Little Rock area.

As set out in J. Monahan and L. Walker, Social Science in Law: Cases and Materials 118(1984): “Surveys of the jurisdiction in which prosecution is initiated, employing the specific magazine or film implicated in the charge, are frequently commissioned in obscenity cases. Usually, but not always, they are commissioned by the defense. Their admissibility is a function of the validity of the researcher’s methodology.” Here, as in United States v. Boltansky, 346 F. Supp. 272 (D.C. Md. 1972), the trial court found that the survey was unrepresentative of the community standard, and that it would be more confusing than probative in determining whether the material was obscene. The ruling was correct because the availability of similar illicit material would not necessarily show acceptance of the material. Hamling v. United States, 418 U.S. 87, 125-26 (1974). Even if availability did in some manner demonstrate acceptability, a survey of nine establishments selling obscene materials in the state’s most urban area would not be representative of a statewide standard, as is required. See Ark. Stat. Ann. § 41-3585.l(4)(b) (Supp. 1985). We do not reverse a trial court’s ruling on the admissibility of evidence unless there is a clear abuse of discretion. The survey had no validity in methodology. David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985). There was no abuse of discretion in excluding the evidence.

Appellant’s third allegation of error is that the trial court wrongly refused to permit him to prove that community standards would tolerate the materials which he promoted; the court wrongly refused to permit him to argue the point to the jury; and, the court wrongly denied his proffered instruction on the issue. Again, the arguments are without merit.

Appellant renews his argument that he should have been allowed to put on proof of the availability of obscene materials at other places in the Little Rock area as evidence that community standards would tolerate the materials. The evidence was not admissible for the reasons previously stated. Since the proffered evidence was not admitted, the trial court ruled correctly in refusing to allow argument about that evidence.

The trial court instructed the jurors that they were not to judge the allegedly obscene material on the basis of their personal opinions, but were to consider the material on the basis of a community standard encompassing all levels of sensitivity, of religiousness and of economic, educational, and social standings. This instruction sufficiently covered the issue and the trial court did not commit reversible error by refusing to give appellant’s requested instruction on the same issue. Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985).

Appellant next argues that the trial court erred in refusing to let him put on evidence of the context in which the material was sold, in refusing to let him argue about the context of the sales, and in refusing to instruct the jury on the use of context as a factor in determining the community standard. Appellant does not specify a particular evidentiary ruling which he contends is erroneous. He only states: “Appellant made several attempts to put into evidence the context of the dissemination of the material as bearing on the issue of obscenity. The State did not object to some of it, but it did object to quite a bit pertaining to the context of dissemination and to closing argument on that issue and the trial court sustained those objections.”

On direct examination of one of his witnesses, appellant put into evidence a large photograph of his business building which shows a sign on the front door that provides “Members Only.” His attorney called a police detective to the witness stand and on direct examination elicited the following:

Q. And when you come up outside, it has a sign that’s — That tells you it’s an adult establishment?
A. Yes, sir.
Q. So you’re aware of that going in?
A. That’s correct.
Q. Did you ever become a member of that club when you went in to buy the evidence?
A. Yes. I had to purchase a membership before I was allowed access into the club.

Five pages of transcript later the following question and answer took place:

Q. And there’s a sign that tells you that you have to be eighteen to get in?
A. Yes, sir.

After the above answer was completed, the State objected. A lengthy dialogue (four pages of transcript) between the attorneys and the court took place, and the court ultimately sustained the objection but did not strike the answer. Appellant made no offer of proof on any additional “contextual” material.

Since appellant did not tell us which ruling relating to the context of promotion of materials he thinks is erroneous, we can only assume it is the one set out above. In it, the question was answered before an objection was made, so appellant could not possibly have suffered any prejudice, even if the subsequent ruling had been erroneous. In fact, the trial court later asked the prosecutor why he was making an issue over the matter since it was already in evidence.

Appellant argues that the trial court erred in prohibiting him from arguing about the context of the rule. However, he does not set out such a ruling, and we do not find one in the abstract. The colloquy on the subject which we find in the abstract is as follows:

BY THE COURT: Why do we need to get into it a great deal more?
BY MR. HALL [Appellant’s Attorney]: Because I can argue to the jury, I believe, that they can determine the community standards based on the context in which this material was disseminated. That is, an adult establishment, limited solely to adults. Nobody was forced to come in off the street in there. [A]nd the State’s offered jury instruction even refers to the average adult in the community.
BY THE COURT: It doesn’t say anything about minors in there whatsoever. You can argue that just as well. There’s no dispute as to all of that . . .

Appellant next argues that the trial court erred in refusing his proposed instruction on the subject of context. The trial judge ruled that the proposed instruction misstated the law, conflicted with other instructions, and would confuse the jury. The proposed instruction would have told the jury that the test of obscenity is whether the material was offensive to the clientele of appellant’s store. Such an instruction would have constituted a misstatement of the law because the test is not whether appellant’s clientele finds the material to be obscene, but rather whether the average person finds that the material appeals only to the prurient interest.

Appellant’s final point of appeal is that the trial court erred in not sustaining his objection to comments made by the prosecutor in closing argument. The argument has no merit.

During appellant’s closing argument, his attorney stated that the case involved “prosecution for an idea.” In the State’s closing argument the deputy prosecutor responded:

Now, I like Mr. Hall’s representation that this is an idea.
The thing that really offended me about—Most about Mr. Hall is the freedom of choice. That this is an idea. And that somehow, that I’m trampling on ideas here. Ladies and gentlemen, there’s many ideas in our society that we simply cannot tolerate. We have to have laws to prohibit those types of ideas. We — The fact that somebody may think that overthrowing the government of the United States, and setting up a dictatorship — That’s an idea. But we’ve got to stop it, because it’s wrong. And it’s a decline in our community that we cannot tolerate.

Appellant objected, arguing that the law does not prohibit ideas but rather the conduct which furthers certain ideas. In response to appellant’s objection, the trial court merely stated that, “I’m not going to talk about this. I’m going to let the jury decide this case on the instructions I’ve given you.” Appellant did not pursue the matter and thus failed to get a ruling on his objection. He may not now pursue the matter on appeal. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986).

Even if we considered the court’s statement to be the same as “objection overruled,” we would not reverse because appellant is unable to show that he was prejudiced in any manner. See Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). The trial court’s instructions made clear the elements of the charged offense and that counsel’s arguments were not evidence. The jury is presumed to follow the court’s instructions. Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982). There is simply no reason for us to hold that the jury thought it was to convict appellant because of his “ideas” about pornography.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I respectfully dissent. It is my opinion that Ark. Stat. Ann. § 41-3585.1—.2 (Supp. 1985) is void for vagueness and amounts to the denial of due process and free speech. The statute does not define “obscene” in such terms as to give fair notice that sale or distribution of such materials is a violation of state law. The definition of “obscenity” has escaped definition; “obscenity” remains a rather amorphous concept until it is “defined” by a conviction.

Neither the statute nor our decisions have been able to define “obscenity” until after an arrest and conviction, and then it’s too late. Our present statute is an obvious attempt to codify the definition found in Miller v. California, 413 U.S. 15 (1973). However, the statute failed in its attempt; instead the legislature enacted a statute that is so vague and uncertain as to practically require enforcement officers to act in a discriminatory and arbitrary manner in selecting arrestees. For example, § 41-3585.1(4)(b) describes “obscene material” as material which: “Taken as a whole appeals to the prurient interest of the average person, applying contemporary statewide standards . . .”

The Miller opinion states that:

The basic guidelines for the trier of facts must be: (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interests; (b) whether the work depicts or describes, in a patently offensive way sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Obviously even the drafters of the statute here in question did not know the meaning of the word “prurient.” As used in the statute, the average person has a “prurient” interest. The Miller case did not so state.

Admittedly, I do not know the meaning of the word “prurient” and certainly cannot tell from our statute what it means. The average person should be able to read a law and understand what is prohibited before the act is done. Certainly this Court should be able to determine what will violate the law before reviewing the evidence. We cannot take this statute and give the words their plain meaning and define exactly what conduct is permitted and what conduct is prohibited.

The majority opinion takes several quotes from Brockett v. Spokane Arcades, Inc. 472 U.S. 491 (1985) as the basis for the decision. The first is an attempt to explain the holding in Roth v. United States, 354 U.S. 476 (1957), which defines prurient as “i.e., material having a tendency to excite lustful thoughts.” The opinion then cites Webster’s New International Dictionary indicating that “prurient” means: “Itching, longing, uneasy with desire or longing; of persons having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd . . .” The best quote of all is: “pruriency is defined, in pertinent part as follows: ‘. . . quality of being prurient . . . ’ ”

It seems to me that the statute and the precedent cited by the majority opinion are attempts to curb the thoughts of the average person. The first thing wrong with the statute is that it attempts to legislate statewide standards on obscenity and even goes so far as to prohibit cities from enacting contrary laws. Neither Miller nor any other case attempts to set statewide standards. Furthermore, Miller required contemporary community standards. The Arkansas statute makes no attempt to define “contemporary” or “community” standards, but instead attempts to set “statewide” contemporary standards anchored on a 1973 opinion.

The Arkansas statute is without doubt a laudable, but futile, attempt to control the sale and distribution of material which the average person in the state might consider indecent and immoral. However, instead of coming right out and stating what was prohibited in plain language, the legislature became entangled in a mass of conflicting statutes, opinions and ideas and enacted an impossible statute. There is a maxim that morals cannot be legislated. Neither can the minds of man be controlled. This attempt to do so must fail.

Nudity, sex, lust, desire and related topics have been present as long as man has existed. All of them are normal to humans. Laws cannot extinguish the thoughts and desires of man. Traffic in obscenity cannot exist without willing customers. None of the material was shown publicly nor was any person required to view it.

The majority quotes (4) (a) three or four times with a different meaning each time. The different meaning of words and acts is primarily what makes it near impossible to define an appropriate statute warning people of what will and will not be allowed. No statute that I have read has defined “obscenity” in such terms as to notify the average person of what acts will violate the law. The definitions of obscenity will be different in the opinion of everyone attempting to define it.

The majority opinion is typified in the statement: “[I]t was not error for the trial judge to fail to require expert evidence that the materials were obscene when the materials themselves were placed in evidence.” What more proof is needed to reveal that this is a case of not knowing how to define it or what it is “until we see it.” The opinion goes on to state that the materials are the “best evidence of what they represent.” The opinion is bottomed upon the statement: “Here the state met its burden of proof of obscenity by introducing the materials themselves” (emphasis added). The opinion continues by stating: “No separate proof of community standards was necessary.” This completely ignores the Miller holding and is in fact contrary to the criteria stated in Miller. The net effect of the majority opinion is that “obscenity” cannot be defined but becomes apparent when the materials are presented to a trier of fact or to an appellate court. As the opinion states, the appellant was not required to prove that the materials were not obscene, but neither was the state required to prove the materials were obscene.

To be valid a statute must provide fair notice to dealers of newspapers, magazines, movies, video tapes and other methods for the exchange of ideas, that sale or distribution of such materials may bring prosecution. Justice Brennan, dissenting in Miller, stated: “[A]fter sixteen years of experimentation and debate I am reluctantly forced to the conclusion that none of the available formulas [on obscenity], including the one announced today, can reduce the vagueness to a tolerable level . . .”

I think the trial court here wrongly refused to allow proof of community standards. Availability of the same materials at many other retail and wholesale outlets in Pulaski County was, in my opinion, relevant and material. Acceptability is one criterion to be considered when trying to determine what constitutes obscenity. No reason is given for selection of the defendant for prosecution for doing that which others may continue to do. Apparently the legislature intended to “set a net large enough to catch all possible offenders” and leave it to the prosecuting authorities to step in and select those who will be detained and punished. If this was the intent of the legislature, then it has been successful. The statute as it is written leaves the police and prosecutor in a position to proceed discriminately against persons or groups who incur disfavor. What is obscene to one policeman or prosecutor may not be obscene to another policeman or prosecutor. We should not invite arbitrary or erratic law enforcement. The trial court refused to allow evidence of tolerance in the community unless it was first shown that such materials were acceptable. Tolerance is quite different from acceptance, which connotes approval. The Court thus created an impossible and improper burden for the appellant.

Censorship violates the mandates of the First Amendment to the Constitution of the United States. There are limitations to the guarantee of free speech. However, such limitations are not relevant to the present situation. It is my opinion that Ark. Stat. Ann. § 41-3585.1—.2 is an impermissible intrusion into the right of freedom of speech and freedom of the press. However offensive the materials may be to some people, they may be completely acceptable to others. Since the trial court prohibited proof of tolerance in the community, we do not know how acceptable such materials may be to the community. Therefore, even if the statute is constitutional, the case should be remanded to allow proof on the question of whether these materials are considered obscene by state or community standards.


author: Steele Hays, Justice.

text:
    James Edwin CLARK v. STATE of Arkansas
    CR 86-179
    727 S.W.2d 853
    Supreme Court of Arkansas
    Opinion delivered April 27, 1987

      Hanks, Gunn & Borgognoni, by: Mary Ann Gunn, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

James Edward Clark, appellant, was charged along with Louis Ricarte and Terry Brannen with three counts of aggravated robbery, three counts of kidnapping and with two counts of theft of property. The cases were severed and Clark was convicted on each count resulting in sentences totaling 135 years. Three points for reversal are presented on appeal: (I) The trial court erred in submitting the three counts of kidnapping to the jury as Class “Y” felonies; (II) The courtroom identification of the appellant was tainted by suggestive photographic lineups prior to trial; and (III) The trial court abused its discretion by admitting evidence of a prior conviction of the appellant during cross-examination of a witness for the defense. We affirm the judgment of conviction.

At around nine o’clock on the evening of March 2, 1982 Robert Perry was accosted by three men as he parked in the driveway of his Fayetteville home. One of them said, “This is a robbery. Be quiet and go in the house.” Perry, his wife and son were blindfolded and Perry was taken upstairs where he spent much of the night talking with one of the robbers. He was questioned about safes in the home and at a local jewelry store belonging to the Perrys.

Early next morning Perry was taken downstairs where Mrs. Perry and Hoyt Perry were handcuffed to a column in the garage. Perry and the three men went to the jewelry store where Perry opened a safe and the robbers removed the contents and left the store, leaving Perry handcuffed to a banister where he remained until employees arrived at nine o’clock to open the store. Robert Perry estimated the value of property taken in the robbery at $575,000.

I.

The trial court instructed the jury in accordance with Ark. Stat. Ann. § 41-1702(2) (Repl. 1979) that kidnapping is a Class Y felony, except when the victim is voluntarily released alive in a safe place then it is a Class B felony. The jury fixed the sentences for kidnapping according to Class Y felonies.

Clark contends that these kidnappings were Class B felonies as a matter of law and the jury should not have been permitted to determine which of the two classes of felony applied. We disagree.

The simple fact is the Perrys were not released at all. While it can be argued the Perrys were left in safe places — their home and store — it is not open to argument that they were not released. It is undisputed that they were left handcuffed to immovable structures and thus dependent on being discovered and freed before their release was complete. Under these circumstances it was, at best, a fact question for the jury to decide as to which of the kidnapping felonies applied. Whitt v. State, 281 Ark. 466, 664 S.W.2d 876 (1984).

II.

Appellant’s second point for reversal involves his in-court identification by the Perrys as being one of the three robbérs. Clark submits the identification should have been suppressed as unreliable and induced by suggestive police procedures. We reject the argument.

The Perrys identified Clark as the oldest of the three men and the one they referred to as “No. 1.” On two occasions they were shown photographic lineups which included Clark’s photograph. Mrs. Perry identified Clark in both instances, Mr. Perry in one. Both were positive in their identification. They had some 20 to 30 minutes to observe Clark before being blindfolded and in Mr. Perry’s case he talked with the robber during the night in an upstairs bedroom. He said the man had an unusual voice, like that of actor Richard Boone of the television series, “Paladin.” He maintained that it was Clark’s voice he heard the night of the robbery.

In determining whether in-court identifications are permissible we look to various factors bearing on the reliability of the witness’s knowledge: the opportunity to observe the perpetrator; the passage of time between the crime and the identification; any discrepancies between the description as reported to the police and the true characteristics of the defendant; the degree of certainty of the witness; and any other factors affecting the identification. Penn v. State, 284 Ark. 234, 681 S.W.2d 307 (1984). Here there is no basis for prohibiting the witnesses from identifying the man they believe to be the perpetrator. While there were some discrepancies in the Perrys’ original description — they thought “No. 1” was several inches taller than Clark — that is hardly sufficient to suppress an identification. Indeed, the accuracy of their identification of Clark was dramatically corroborated by one of the principals, Terry Brannan, who testified for the state under immunity that Clark was one of three robbers. Clark’s argument that the photo lineups were suggestive because in one he was pictured in front of a blue background whereas the other two were in front of a brown background, is of no consequence. The photos are in the record and demonstrate the lack of suggestiveness.

III.

Clark’s final point is that the trial court erroneously permitted the state to introduce evidence of a prior conviction of Clark over the objection of the defense. There was no error.

Clark’s wife, Tommie Lou Clark, was a witness in behalf of her husband. During defense counsel’s questioning of Mrs. Clark she was asked, “Is there any doubt in your mind that Jim Clark did not commit this crime?” When she shook her head in the negative she was asked why she felt that way. She said, “I just don’t feel he would do anything like that. He’s too well educated, too intelligent a man to do something like that.”

On cross-examination the prosecutor asked (R. p. 999):

Q: Mrs. Clark, I believe you told [defense counsel] that you didn’t think Jim had done that and that was because he wouldn’t do something like that?
A: No.
Q: What do you mean by that?
A: Well, that’s committing a crime.
Q: You don’t think he’d commit a crime?
A: No, I don’t.
Q: Would it surprise you to learn that he committed a crime in Louisiana, that marijuana he got caught with and sentenced for?
A: It surprised me.
Q: It surprised the heck out of you, I imagine?
A: Right.
Q: Wasn’t it a hundred and something pounds — ?
[Defense Counsel]: Objection, Your Honor.

Aside from the fact that no ruling was ever made on the objection, the questions asked on direct examination clearly put the character of the accused in issue and enabled the state to test the witness’s knowledge of facts bearing on her opinion of the character of the accused. Reel v. State, 288 Ark. 189, 702 S.W.2d 809 (1986).

The judgment is affirmed.


text:
    William B. POTTER, By His Attorney, Michael REDDEN v. FIRST NATIONAL BANK, Guardian of the Estate of William B. POTTER, Incompetent and Debbie Potter LYNCH, Guardian of the Person of William B. POTTER, Incompetent
    86-212
    728 S.W.2d 167
    Supreme Court of Arkansas
    Opinion delivered April 27, 1987

      Michael Redden & Assoc., for appellant.

      Lightle, Beebe, Raney & Bell, for appellee.
   Steele Hays, Justice.

On January 8, 1985 Debbie Potter Lynch petitioned for the appointment of First National Bank of Searcy as guardian of the estate of her seventy-eight year old father, William B. Potter, who had inherited a sizeable sum from his son’s estate. Mr. Potter was notified of the proceedings on January 9 and on January 14 the petition was granted. Mr. Potter did not appear at the hearing.

Thereafter a car was purchased by the guardian and a home belonging to Mrs. Lynch and her husband was purchased by the guardian at a cost of $17,500. Repairs amounting to $6,233.36 were subsequently authorized.

In September, 1985 Mr. Potter’s former wife and the mother of Debbie Lynch petitioned for Mrs. Lynch’s appointment as guardian of the person of Mr. Potter. First National Bank joined in the petition, which alleged that Mr. Potter had become unmanageable and needed custodial care. The petition was granted on the same day it was filed without notice to Mr. Potter.

On October 25 attorney Michael Redden, purporting to act on behalf of William Potter, filed a petition to set aside the appointment of First National Bank as guardian of the estate and in the alternative that a hearing be held to determine whether Mr. Potter is competent.

The bank moved to dismiss the petition on grounds that no appeal had been taken from the order appointing a guardian of the estate and that since more than ninety days had elapsed the court was without jurisdiction to vacate the order, no grounds having been alleged under ARCP Rule 60. The motion also questioned Mr. Redden’s standing to act on behalf of Mr. Potter.

By amended petition Redden also moved to set aside the order appointing Mr. Lynch as guardian of the person or, in the alternative, that a hearing be conducted to determine whether Mr. Potter is competent. The bank and Mrs. Lynch renewed the petition to dismiss.

At a hearing on the motions it developed that Mr. Redden had been employed by Mr. Warren T. Lipscomb, Minister of the Westgate Apostolic Church in Searcy and Mr. Potter’s pastor. He testified that he had known William Potter for about seven years, that Potter had attended church services regularly prior to his stroke in 1981 and that Lipscomb had visited him on a weekly basis since his confinement. At one point Mr. Lipscomb had contacted the bank in regard to what he believed to be Potter’s desire to contribute a tithe to the church. In connection with that endeavor Mr. Lipscomb had employed a psychologist who twice interviewed Mr. Potter and pronounced him competent. Mr. Lipscomb maintained that he was authorized orally by Mr. Potter to employ Redden to challenge the guardianships, though whether Redden and Potter had ever had direct contact, he did not know.

Mr. Wayne Hartsfield, President of First National Bank testified that when he originally met with Mr. Potter in January 1985 Potter was very irrational but had no opposition to the appointment of a guardian of his estate. At later times Mr. Potter was much more rational and had never expressed opposition to the guardianship. He said that in response to Mr. Lipscomb’s inquiries concerning a tithe, a monthly contribution was being made to the church.

Mr. Robert Edwards of Searcy testified concerning contacts by Mr. Lipscomb in behalf of Mr. Potter, and Mrs. Lynch testified that her father had been placed in a nursing home because he was difficult to manage.

At the conclusion of the hearing the probate judge found that Mr. Lipscomb, while an interested party, did not have standing to contest the two orders in question and Mr. Redden did not “at this time” represent Mr. Potter; that the question of William Potter’s competency was properly before the court and that a hearing would be conducted into that question when Mr. Redden and Mr. Bell, who represented the guardians, could advise the court how long they thought it would take to try the issues. When Mr. Redden asked whether Mr. Lipscomb were free to hire representation concerning the competency issue, the court answered in the affirmative, “unless I am shown something different.” The court noted that Mr. Potter could be present at the competency hearing and state who he wanted to represent him and the purpose of the hearing would be to see if the previous orders should be modified. Thus the net effect of the findings was to grant the alternative relief sought by the petition.

When the formal order was entered some weeks later it recited that neither Redden nor Lipscomb had standing to represent William Potter, or to attack the order appointing a guardian of the person; that the order appointing a guardian of the estate was not subject to attack because no motion was filed within ninety days and none of the exceptions in ARCP Rule 60(b) applied; that the only relief to which William B. Potter was entitled was pursuant to Ark. Stat. Ann. § 57-865 (Supp. 1985) to determine whether guardianship should be dismissed or modified. Michael Redden has appealed on behalf of William B. Potter, alleging that it was error to rule that he had no standing to act for Mr. Potter, that the dismissal of his motions denied Potter due process of law and were an abuse of discretion by the trial judge.

We disagree with the probate court that there was no showing that Mr. Lipscomb was authorized to act for Mr. Potter. His testimony that Potter directed him to employ an attorney to challenge the guardianships was unequivocal and was essentially uncontroverted. Evidently the bank recognized that Lipscomb derived some authority from Potter, as the bank began making monthly contributions to Westgate Apostolic Church after Lipscomb contacted it.

Obviously William Potter has standing to attack a guardianship of his person and estate. Randolph v. Porter, 188 Ark. 729, 67 S.W.2d 574 (1934); Gimbaugh v. Superior Court, 221 P. 635 (S.Ct. of Cal. 1923); Strickland v. Peacock, 77 S.E.2d 14, 18 (S.C. of Ga. 1963); Ark. Stat. Ann. § 57-865 (Cumm. Supp. 1985). The question is whether Michael Redden has the authority to act in William Potter’s behalf, and under the circumstances presented by the case, the proof sustains that conclusion.

Appellees cite us to McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973), where by dictum it is said that a defendant has standing to challenge the authority of an attorney to represent the opposing litigants in a medical malpractice case. The holding in McKenzie v. Burris, is not applicable here — we refused to issue a writ of prohibition to the circuit court against recognizing the attorney (a non-resident) as co-counsel of record in the case. More nearly applicable is Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979), where we said an attorney who appears in court is presumed to be authorized to represent the client, citing Broadway v. Sidway, 84 Ark. 527, 107 S.W. 163 (1907) and United Equitable Ins. Co. v. Karber, 243 Ark. 631, 421 S.W.2d 338 (1967).

On the issue of standing itself neither side cites anything directly in point and we have found nothing definitive. In general, the law with respect to standing is not to be narrowly or restrictively interpreted. Wisconsin Environment Decade, Inc. v. Public Service Commission, 230 N.W. 2d 243 (S.C. of Wisc. 1975); C.J.S., Vol 67 A, Partee’s, § 12. “Standing is not a rigid and dogmatic rule, but one to be applied with some view of the realities and practicalities of the situation.” Washakie County School District v. Herschler, 606 P.2d 310 (S.C. of Wyo. 1980).

When the realities of this case are considered we think the trial court’s discretion would have been better exercised on the side of standing. Without suggesting that there are no outer limits to the question of standing the testimony of Mr. Lipscomb that he was instructed by Mr. Potter to hire a lawyer on his behalf stands largely undisputed. We find that testimony persuasive. We do agree with the trial court that an attack on the order of January 14,1985 appointing the bank as guardian of the estate is untimely and no grounds were alleged to vacate the order under ARCP Rule 60(b) and to that extent we affirm the order appealed from.

Affirmed in part, reversed in part and remanded for further proceedings.

Hickman, J., not participating.


text:
    Sanford L. BESHEAR, Jr. v. W.J. RIPLING, Mayor of the City of Rison, et al.
    86-246
    728 S.W.2d 170
    Supreme Court of Arkansas
    Opinion delivered April 27, 1987

      Sanford L. Beshear, Jr., for appellant.

      Armstrong & Binns, by: Murry F. Armstrong, and Bill

      McLean, Prosecuting Att’y, by: Tom Wynne, III, for appellee.
   David Newbern, Justice.

The appellant, Sanford L. Beshear, Jr., filed a complaint alleging that he was a resident and taxpayer of Rison, Cleveland County, Arkansas. He alleged that one of the appellees, Ronnie A. Phillips, a resident of Dallas County, Arkansas, had been illegally made municipal judge of Rison and Cleveland County. The other appellees, who, along with Mr. Phillips, were defendants, included the mayor, city clerk, and city council members of the City of Rison and the members of the Cleveland County Quorum Court. Most of the thirty-four paragraphs of the complaint were devoted to allegations that Mr. Phillips was a usurper of the position of municipal judge because he had not taken the oath of office, had not been properly appointed, and had not been issued a commission. The appellant further alleged that he was an attorney at law and, presumably because he was the only attorney at law residing in Rison and Cleveland County, he was the only person eligible to hold the office of municipal judge for the city and for the county. In paragraph 30, the appellant alleged he was bringing the action as a taxpayer of Rison and of Cleveland County. In paragraph 31, he alleged that the salary of the municipal judge should be held in abeyance. The complaint sought declaration of a vacancy in the office, an order that the council and quorum court seek a lawful appointment by the governor to fill the office, and an order restraining Mr. Phillips from holding court.

After further pleadings by all parties, the mayor and council members filed a motion to dismiss the complaint on the ground that a usurpation action with respect to a municipal office could be brought only by the attorney general, and thus the appellant lacked standing. The other appellees adopted the motion as their own. In response to the motion, the appellant stated, in part, that the city and the county lacked the authority under the Arkansas Constitution to hire or elect Mr. Phillips as municipal judge. He argued that as a taxpayer he was authorized to bring an illegal exaction action according to Ark. Const, art. 16, § 13.

The action was dismissed solely on the basis that the appellant had no standing to bring a usurpation action. No mention was made in the court’s order of the illegal exaction part of the complaint. We hold the dismissal of the illegal exaction allegation of the complaint was reversible error.

In his brief in chief, the appellant argues the trial court erred in failing to declare the office vacant, in failing to find an illegal exaction, and in holding that usurpation was an exclusive remedy. In response, the appellees point out that as of January 1,1987, the appellant assumed the office of municipal judge and that the issues raised by the appellant are now moot.

We agree with the appellees that the usurpation claims of the appellant are now moot. However, it was error for the trial court to ignore the appellant’s illegal exaction claim. He clearly had standing as a taxpayer to pursue the relief authorized by Ark. Const, art. 16, § 13, which provides, “Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.” It is self-executing, and it permits taxpayers to challenge the legality of expenditures of public funds. Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963); Samples v. Grady, 207 Ark. 724, 182 S.W.2d 875 (1944).

The specific relief sought by the appellant with respect to his illegal exaction claim, that is, the holding in abeyance of the municipal judge salary being received by Mr. Phillips, is probably no longer appropriate, assuming no additional salary is owed to Mr. Phillips by the city or the county for his services as municipal judge. However, the appellant’s complaint sought “all other proper relief.” This court has held that one who holds a public office illegally may be required to pay back money received as salary. Revis v. Harris, 219 Ark. 586, 243 S.W.2d 747 (1951). It has also been held that one who, in good faith, performed the duties of a public office held in violation of a constitutional prohibition would not be required to pay back salary received and thus create a windfall to the state. Martindale v. Honey, 261 Ark. 708, 551 S.W.2d 202 (1977). The point here is that we cannot get into these issues or even the issue of the illegality or unconstitutionality of Mr. Phillips’s service as municipal judge, as there has been no trial and no reviewable decisions on these issues have been made. The appellant was given no opportunity to develop his illegal exaction case because of the erroneous dismissal of that part of his complaint.

We note that illegal exaction actions have traditionally been brought in chancery courts; however, the question of propriety of filing this action in the circuit court was not raised by the parties, and we will thus not consider it.

Reversed and remanded.