author: Steele Hays, Justice. George Rose Smith, Justice, Steele Hays, Justice.

text:
    CRITTENDEN COUNTY, ARKANSAS v. James R. WILLIFORD
    84-117
    675 S.W.2d 631
    Supreme Court of Arkansas
    Opinion delivered September 24, 1984
    [Supplemental Opinion on Denial of Rehearing November 13, 1984.]

      Brian Williams and Jake Brick, for appellant.

      Willliam R. Wilson, for appellee.
   Steele Hays, Justice.

This case began some years ago when James Williford, appellee, brought a taxpayer’s suit in chancery for the benefit of Crittenden County against its Sheriff, Marion Thomas, for an accounting of misappropriated funds. Those efforts resulted in an award in behalf of the county which was partially affirmed on appeal. [See Thomas v. Williford, 259 Ark. 354, 534 S.W.2d 2 (1976)]. On remand, the county was awarded $106,467.43 against Thomas, with lesser awards against the two bonding companies.

Williford then filed a claim of $25,480.07 with the Crittenden County Court seeking reimbursement of attorneys fees and costs incurred in prosecuting the case. The claim was denied and Williford appealed to the Crittenden Circuit Court. Crittenden County filed a response and without objection the case was transferred to the Crittenden Chancery Court on Williford’s motion that equitable remedies were sought.

The Chancellor found that as a result of Williford’s suit, which he likened to a class action in behalf of all taxpayers of Crittenden County, a common fund in excess of $75,000 was established from which Williford and other contributing taxpayers were entitled to be reimbursed in the sum of $22,980.07 for their costs and expenses. On appeal, we affirm the Chancellor.

Appellant’s first assignment of error attacks subject matter jurisdiction in chancery. City Section 57 of Article 7 of the Arkansas Constitution, and statutes defining equity jurisdiction, the county urges that its motion to set aside the decree should have been granted notwithstanding its failure to object to Williford’s motion to transfer, or its failure to challenge subject matter jurisdiction until after the Chancellor had announced his conclusions and a final decree was entered. It is true our cases hold that since jurisdiction of the subject matter cannot be conferred by consent of the parties, the absence of an objection on that basis is not ordinarily fatal. However, it must be said the rule applies only in those instances where such jurisdiction could not, under any circumstances, exist. Smith v. Whitmire, 273 Ark. 120, 617 S.W.2d 845 (1981); Whitten Developments, Inc. et al v. Agee, 256 Ark. 968, 511 S.W.2d 466 (1974); Price v. Madison County Bank, 90 Ark. 195, 118 S.W. 706 (1909).

We have held that where a court of equity was not “wholly incompetent” to grant the relief sought, questions of the adequacy of the remedy at law are waived when raised for the first time on appeal. Titan Oil & Gas v. Shipley, 257 Ark. 278, 517 S.W.2d 210 (1974). The Titan court stressed the failure to raise the argument before the trial court as the “underlying basis” for its holding. That is the situation before us now, and the same reasoning applies. The relationship between Williford’s suit and chancery jurisdiction was not wholly lacking, yet the county not only failed to object to a transfer from law to equity, it approved an order transferring the case to chancery upon a finding that the plaintiff sought equitable relief, which might well be construed as a stipulation that the issues were cognizable in equity.

Nor can those issues be seriously questioned now. Williford’s case against Marion Thomas was a taxpayer’s suit for funds diverted from the county; it sought an accounting; it was filed and tried in chancery; it was remanded to chancery for modifications that doubtless entailed additional findings; the litigation succeeded in creating a substantial fund which still exists separate from the general funds of Crittenden County and, presumably, is still subject to the orders of the chancery court. Finally, Williford’s suit was an attempt to recoup the expenses he had incurred in that difficult and costly litigation which plainly benefitted the county. In that context, how can it be said that under no circumstances could Williford’s suit be entertained in equity?

Williford relies on our decision in Powell, Mayor v. Henry, 267 Ark. 484, 592 S.W.2d 107 (1980), where we upheld the Chancellor in awarding attorneys’ fees out of a common fund established in behalf of taxpayers. We called such awards “well recognized and proper,” citing Marlin v. Marsh & Marsh, 189 Ark. 1157, 76 S.W.2d 965 (1934). In Marlin, our opinion noted (and as the Chancellor observed in this case) that an important factor in consideration of fee allowance was the realization that it would be a discouragement if those who might otherwise pursue this type of litigation were inadequately compensated. Language from Marlin v. Marsh & Marsh, supra, is particularly appropriate here:

When many persons have a common interest in a fund, and one of them for the benefit of all brings a suit for its preservation, and retains counsel at his own cost, a court of equity will order a reasonable amount paid to him out of the funds in the hands of the receiver in reimbursement of his outlay.

We conclude that equity was not incompetent to grant the relief sought by Williford, that is, an award of costs and attorneys’ fees out of a common fund established because of his efforts in behalf of the other taxpayers of the county. The county may not join in a transfer of that suit to equity, try the issues on their merits, lose, and now be heard to say that subject matter jurisdiction was wholly lacking.

Another argument is that by amending his pleading after appeal, Williford enlarged upon his original cause of action. The county cites us to Sharp County v. Northeast Arkansas Planning and Consulting Company, 275 Ark. 172, 628 S.W.2d 559 (1982) and Madison County v. Nance, 182 Ark. 775, 32 S.W.2d 1073 (1930) where we held that cases tried de novo in circuit court on appeal from county court are limited to the same parties and issues. In Madison, after appealing to circuit court, claimants against the county were permitted to amend their complaints to increase the amount claimed, which we said they could do. In Sharp, we found no prejudice to the county where, on appeal, a claimant had amended his claim to reduce the amount from $7,000 to $4,530.

Here, except for a downward correction in the amount claimed, neither the parties nor the amounts were changed on appeal. We find no fundamental transformation of Williford’s claim to have occurred here, and we have held that on appeal from county court the trial court has discretion in permitting amendments which do not change the original cause of action. Saline County v. Kinkead, 84 Ark. 329, 105 S.W. 581 (1907); Freeman v. Lazarus, 61 Ark. 247, 32 S.W. 680 (1895).

Next, the county contends Williford should not be awarded interest of $2,862.26, or $12,500 of the attorneys’ fees advanced by others and for which he was not legally obligated. Appellant urges that interest is not recoverable against counties under Ark. Stat. Ann. § 29-124 (Repl. 1979), and that when a person pays money on an unenforceable demand, the payment is deemed to be voluntary and cannot be recovered [citing Ritchie v. Bluff City Lumber Co., 86 Ark. 175, 110 S.W. 591 (1908); see also Northcross v. Miller, 184 Ark. 463, 43 S.W.2d 734 (1931) and Turpin v. Antonio, 183 Ark. 377, 240 S.W. 1976 (1922)]. The county claims that because other persons, not parties to the suit, had contributed some $12,500 of the amount awarded Williford, those were voluntary contributions which could not be enforced against Williford and, hence, should not be recovered by him. Appellee responds that these arguments are new on appeal and the abstract bears out this contention. Since the appeallant has left these assertions unanswered, we will assume their accuracy. Sun Gas Liquids Co. v. Helena National Bank, 276 Ark. 173, 633 S.W. 2d 38(1982).

Finally, the county argues that the Chancellor should not have reinstated the case following its dismissal without prejudice under Rule 10 of the Rules of Circuit and Chancery Courts. But it is quite clear that the dismissal order was entered as the result of a clerical mistake and the reinstatement of the case was a matter for the Chancellor’s discretion. Keith v. Barrow-Hicks Ext. Imp. Dist. 85, 275 Ark. 28, 626 S.W.2d 951 (1982).

Finding no error, we affirm the decree.

Smith, J., and Dudley, J., dissent.

George Rose Smith, Justice,

dissenting. In 1970 the appellee Williford brought a taxpayer’s suit to require the county sheriff to account for money he had received from Southland Racing Corporation and had not paid over to Crittenden County. The chancellor’s decree required the sheriff to account to the county for the money. The decree was, in the main, affirmed. Thomas v. Williford, 259 Ark. 354, 534 S.W. 2d 2 (1976). On remand the final decree entered judgment against the sheriff for $106,467. Part of that amount, $29,040, was paid to the county by the sureties on the sheriff’s bond. With the entry of that final decree the suit in chancery came to an end.

Later that year, on November 1, 1976, Williford filed in the county court the present claim against the county for $25,480, representing expenses and attorneys’ fees that he and other citizens of the county had paid in prosecuting the earlier suit. On November 12, 1976, the county court entered an order acknowleding receipt of the money from the sureties and directing that that sum be kept in a separate and distinct fund, apart from the county general fund, “until proper distribution can be determined.” The county court, however, denied Williford’s claim.

After Williford appealed to the circuit court, the case was transferred to the chancery court in 1980, without objection. In 1983, seven years after Williford had filed his claim in the county court, he amended his pleadings to assert for the first time the equitable theory that his actions had created a common fund for the benefit of the taxpayers, that the fund was in the county treasury, segregated from county general funds, and that the fund was therefore subject to the jurisdiction of the chancery court. The chancellor’s decree upholding that theory is being affirmed by this court.

The court’s reliance upon the common-fund theory of chancery jurisdiction might well be sound if Willliford had asserted that claim in the original taxpayer’s suit in 1976, when the case was still pending in the chancery court. Williford, however, permitted the chancery case to end with a simple money judgment in favor of the county and against the sheriff and his sureties. When part of the judgment was actually paid to the county, the money belonged to the county and was subject to the control of the county court, not of the chancery court. It was the county court that directed the sureties’ payment to be kept separate.

Ever since 1874 our Constitution, Art. 7 § 28, has provided that the county courts shall have exclusive original jurisdiction in all matters pertaining to the disbursement of money for county purposes. If that court disallows a claim against the county, as in the present case, the claimant’s remedy is by appeal to the circuit court, where the case is tried de novo. Such a case, however, cannot be transferred to the chancery court, for that would put the chancery court in the position of reviewing a decision of the county court. It has no such authority.

Among our many cases on the subject I need discuss only one: McLain v. Brewington, 138 Ark. 157, 211 S.W. 174 (1919). At the time of that decision all county courts and all probate courts were presided over by the county judge, and appeals from either court were taken to the circuit court for trial de novo. That case began as a proceeding in the probate court for the appointment of a guardian for two minors. An appeal from the probate court’s decision was taken to the circuit court. The case, like this one, was transferred to the chancery court without objection. There it was consolidated with a pending suit for the custody of the two children, a matter within the jurisdiction of chancery. McLain appealed to the Supreme Court from the final decree in the consolidated case. We reversed that part of the decree affecting the guardianship, for want of subject-matter jurisdiction in the chancery court. The court’s language should, I think, control the present dispute:

The first question presented is whether or not the chancery court had jurisdiction to hear and determine the appeal from the probate court. We are clearly of the opinion that the chancery court had no such jurisdiction. The Constitution (art. VII, § 34) confers exclusive jurisdiction upon probate courts “in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians and persons of unsound mind and their estates;” and there is also conferred a right of appeal to the circuit courts from judgments and orders of probate courts. There is no right of appeal to the chancery court.
The statute authorizing transfers of causes from the circuit to the chancery court, or vice versa, applies only to those actions which originate in one or the other of those courts (Kirby’s Digest, §§ 5991, 5994. 5595), and does not confer authority for the transfer of a cause appealed to the circuit court from one of the inferior courts. Jackson v. Gorman, 70 Ark. 88; McCracken v. McBee, 96 Ark. 251; Brownfield v. Dudley E. Jones Co., 98 Ark. 495.
There was no objection to the transfer of the cause, but consent can not confer jurisdiction to the subject-matter of the proceedings where such jurisdiction could not, under any circumstances, otherwise exist. Price v. Madison County Bank, 90 Ark. 195.

November 13, 1984

679 S.W.2d 795

On the authority of that case and others, I would reverse the decree in this case and remand the cause to the chancery court with instructions to return the proceeding to the circuit court. Perhaps Williford will prevail there, but that point is not now before us.

Dudley, J., joins in this dissent.

Supplemental Opinion on Denial of Rehearing

Steele Hays, Justice.

By petition for rehearing, appellant has satisfied us that one of his assignments of error was sufficiently raised in the trial court and should have been answered on its merit in our opinion handed down on September 24, 1984.

Appellant contends the trial court should not have awarded Williford a judgment which included $12,500 voluntarily paid by other persons, not parties to the suit, as well as $2,862.26 in interest on that amount.

The proof showed that part of the funds used to finance the litigation against Sheriff Marion Thomas was borrowed by James C. Hale, Sr. from the Bank of West Memphis. No written agreement existed between Williford and Hale to the effect that Hale would be reimbursed should Williford ever recover the expenses incurred in the suit.

Appellant’s only authority for this argument is a familiar group of cases holding that when one person without mistake of fact or fraud, duress, coercion, or extortion pays money on a demand which is not enforceable against him, the payment is deemed voluntary and cannot be recovered. Northcross v. Miller, 184 Ark. 463, 43 S.W.2d 734 (1931); Turpin v. Antonio, 153 Ark. 377, 240 S.W. 1076 (1922); Ritchie v. Bluff City Lumber Co., 86 Ark. 175, 110 S.W. 591 (1908).

There are two answers: first, the appellant lacks standing to raise a defense only arguably available to Williford if he were sued by others to recover contributions to the fund. Williford represented to the Chancellor that he intended to reimburse those who had contributed and whether he would be permitted to rely on the doctrine expressed in those cases if he failed to honor his commitment is, at best, hypothetical. We do not answer academic issues. McCuen v. Harris, 271 Ark. 863, 611 S.W.2d 503 (1981); McDonald v. Bowen, 250 Ark. 1049, 468 S.W.2d 765 (1971).

Second, we have said suits of this sort are often difficult and costly and where they result, as this did, in a recovery for the benefit of taxpayers, such undertakings are looked on with favor by the courts. Marlin v. Marsh & Marsh, 189 Ark. 1157, 76 S.W.2d 965 (1934).

Petition denied.

      In all cases of allowances made for or against counties, cities or towns, an appeal shall lie to the circuit court of the county, at the instance of the party aggrieved, or on intervention of any citizen or resident and taxpayer of such county, city or town, on the same terms and conditions on which appeals may be granted to the circuit court in other cases; and the matter pertaining to any such allowance shall be tried in the circuit court de novo.


source: Caselaw Access Project

author: P. A. Hollingsworth, Justice.

license: Public Domain

text:
    Willie Prester ANDREWS v. STATE of Arkansas
    CR 84-77
    675 S.W.2d 636
    Supreme Court of Arkansas
    Opinion delivered September 24, 1984

      John L. Kearney, for appellant.

      Steve Clark, Att’y Gen., by: Patricia G. Cherry, Ass’t Atty. Gen., for appellee.
   P. A. Hollingsworth, Justice.

The appellant was convicted by a jury of aggravated robbery and being a habitual offender, and received a sentence of sixty years imprisonment. This appeal is from those proceedings. The case is before us under Sup. Ct. R. 29 (1) (b).

On August 9, 1983, at approximately 7:00 PM, two employees of the Sears Store in Pine Bluff were leaving work when they heard the burglar alarm ringing. Upon reentering the store, they were confronted by a man wearing a mask who at gunpoint forced them to lie down on the floor. He tied one of the employees’ hands with tape and forced that employee to lie down in the freight elevator. The other employee was forced to take the man to the safe. Police officers responding to the burglar alarm arrived at the store and fired a shot at the masked man, who then broke through a plate glass window and fled from the store. He was apprehended across the street from Sears and identified as the appellant by both employees.

Ark. Stat. Ann. § 41-2102 (Supp. 1983) provides that a person commits aggravated robbery if with the purpose of committing a theft or resisting apprehension, he employs or threatens to employ physical force immediately upon another and he is armed with a deadly weapon, or represents by word or conduct that he is so armed. The appellant’s conduct fits the statutory definition in that he was in Sears for the purpose of committing theft and he held a gun on the employees, thereby threatening to employ physical force. The fact that the crime was not successful is of no consequence since we have held that nothing need be taken from the victim to sustain an aggravated robbery conviction. Sanders v. State, 274 Ark. 525, 626 S.W.2d 366 (1982). The facts present here are substantial evidence to support the charge.

The appellant’s second argument is that the evidence presented at trial does not support the severity of the sentence. We have previously stated that “except in capital cases, we do not review the severity of a sentence within the lawful maximum and not affected by error in the trial, that determination having been committed to the jury by the Constitution and statutes.” Lear v. State, 278 Ark. 70, 643 S.W.2d 550 (1982) and Kaestel v. State, 274 Ark. 550, 626 S.W.2d 940 (1982). Here the objection to the sentence is not based on an error committed in the trial, but rather is a plea for leniency because the appellant did not actually harm the two employees. The sentence is within the legal maximum set by the legislature.

The appellant next argues that the trial court erred in considering his past charge of burglary and kidnapping as two separate offenses for purposes of the habitual offender statute. After the jury returned a verdict of guilty, the State introduced certified copies of the judgments and commitments in three prior felony convictions: (1) A-27591, United States District Court, Northern District of Georgia (plea of guilty/bank robbery/August 4, 1972); (2) 8-12314, Clayton County Superior Court (plea of guilty/burglary/August 9, 1974); and (3) CR 78-352, Jefferson County Circuit Court (plea of guilty/aggravated robbery/July 13, 1979). Appellant objected to the introduction of the Clayton County conviction because, according to him, the federal robbery and state burglary charges arose out of the same incident.

We have reviewed the record and find it confusing as to whether the two charges arose out of the same incident. However, we need not decide that issue as there is no indication that appellant was prejudiced by the introduction of the convictions. Even assuming that the convictions in A-27591 and 8-12314 should have been considered as one prior conviction, there was clear evidence of two prior felony convictions before the court. Thus, the enhanced punishment was authorized under Ark. Stat. Ann. § 41-1001 (1) (Supp. 1983).

The appellant’s fourth argument on appeal is that the trial judge erred in refusing to dismiss a juror for cause. During voir dire, one of the jurors revealed that he had been a victim of a robbery two years ago. The appellant asked that the juror be excused for cause, and the trial court refused. The appellant then used one of his peremptory challenges to excuse the juror. The appellant asserts that he was forced to use a peremptory challenge which he “might properly have used at a different occasion.” We have previously held that in order to preserve this issue for appeal, the appellant must have exhausted his peremptory challenges and must state for the record that there is an individual sitting on the jury that he would have stricken if he had another peremptory challenge. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). There is no error shown here as appellant’s counsel accepted the twelve jurors who were ultimately seated, and he has not shown that the appellant was compelled to take any undesirable juror. Isom v. State, 280 Ark. 131, 655 S.W.2d 405 (1983).

We affirm.


author: Webb Hubbell, Chief Justice.

text:
    Billy Ray JACKSON v. STATE of Arkansas
    CR 84-69
    675 S.W.2d 820
    Supreme Court of Arkansas
    Opinion delivered October 1, 1984

      Henry J. Swift, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Webb Hubbell, Chief Justice.

Appellant Billy Ray Jackson was convicted of possession of marijuana with intent to deliver, possession of valium, and possession of drug paraphernalia with intent to use. As an habitual offender he was sentenced to consecutive terms of twenty years, six months, and twenty years for the respective offenses. Appellant seeks reversal because the trial court refused to quash a search warrant, suppress evidence seized pursuant to the warrant, and compel disclosure of a confidential informant. We affirm the convictions.

Appellant was stopped by police officers who had a search warrant for his home, his personal vehicle, and other vehicles at his residence. The officers found five pounds of marijuana in a grocery sack in the back seat of appellant’s vehicle. Appellant was then taken to his home where the officers searched his house and found drug paraphernalia.

Appellant contends that the affidavit for the search warrant was insufficient and based on an unreliable informant; therefore, the ensuing search and seizure were unreasonable. In the affidavit in question, the affiant stated: 1) a confidential informant had revealed that appellant was selling marijuana at his residence; 2) the informant had proven reliable in the past; 3) the informant on two occasions had purchased marijuana from the appellant; 4) the informant had seen marijuana in appellant’s bedroom and in appellant’s vehicle; and 5) surveillance of appellant’s home had disclosed excessive traffic going in and out, including a known dealer in drugs. Appellant also argues that the affidavit contains invalidating omissions and errors, but the discrepancies essentially consist of dates being one day off.

In Thompson v. State, 280 Ark. 265, 658, S.W.2d 350 (1983), we adopted a new test for review of search warrants; that is, the totality of circumstances test as enunciated in Illinois v. Gates, 103 S. Ct. 2317, 2332, (1983). This affidavit meets the new totality of circumstances test and further passes the even more stringent two-pronged test of Aguilar v. Texas, 378 U.S. 108 (1964). The Aguilar test requires the warrant to state: 1) underlying circumstances from which the informant concluded the items to be seized would be there; 2) underlyingcircumstances showing the informant’s reliability. James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983). The informant had previously produced information resulting in a conviction for burglary, the recovery of stolen property, and the solution of several purse snatchings in Osceola. An informant who has produced information that has resulted in convictions in the past may be considered reliable. State v. Lechner, 262 Ark. 401, 557 S.W.2d 195 (1977); Shackleford v. State, 261 Ark. 721, 551 S.W.2d 205 (1977). After the informant told police that appellant was selling marijuana, the informant participated in two controlled purchases of marijuana from appellant and saw marijuana in appellant’s vehicle and home. The surveillance of appellant’s home also corroborated the informant’s information. The trial court did not err in refusing to suppress the search warrant and the evidence seized.

Appellant also contends the trial court should have ordered disclosure of the confidential informant’s identity. In this case the charges did not include the actual delivery of a controlled substance, only the possession with intent to deliver. In Bennett v. State, 252 Ark. 128, 477 S.W.2d 497 (1972), we required disclosure when the defendant was charged with the sale of drugs and the informant actually participated in the crime. We have not required disclosure where a defendant was charged only with possession and the informant merely supplied information leading to the issuance of the search warrant. Robillard v. State, 263 Ark. 666, 566 S.W.2d 735 (1978); Brothers v. State, 261 Ark. 64, 546 S.W.2d 715 (1977).

Affirmed.


author: Webb Hubbell, Chief Justice. John I. Purtle, Justice,

text:
    STATE of Arkansas v. Levert BROWN
    CR 84-78
    675 S.W.2d 822
    Supreme Court of Arkansas
    Opinion delivered October 1, 1984

      Steve Clark, Att’y Gen., by: Randel Miller, Asst. Att’y Gen., for appellant.

      Jerome Kearney, for appellee.
   Webb Hubbell, Chief Justice.

Appellee Levert Brown was charged with violating Act 549 of 1983 [Ark. Stat. Ann. §§ 75-2501 — 75-2533 (Supp. 1983)], driving while intoxicated (D.W.I.), fourth offense. The Circuit Court granted appellee’s pre-trial motion to suppress evidence of his three prior D.W.I. convictions because in those earlier proceedings he was not represented by counsel. The court then refused to grant appellant’s motion to amend the charges against appellee to D. W.I., first offense, and granted appellee’s motion to dismiss the case. We affirm the suppression of the prior convictions, but we reverse the court’s denial of the motion to amend.

The first issue is whether Baldasar v. Illinois, 446 U.S. 222 (1980) bars prior uncounseled misdemeanor convictions from being used to enhance punishment for a subsequent offense. In Baldasar the prosecution sought the introduction of a prior uncounseled misdemeanor theft conviction to support the enhancement of a second misdemeanor theft to a felony. In a plurality opinion, the United States Supreme Court held that while an uncounseled misdemeanor conviction is valid, if the offender is not incarcerated, such a conviction may not be used under an enhancement statute to convert a subsequent misdemeanor into a felony punishable by a prison term.

This case presents a similar situation. The prosecutor sought the admission of three prior D.W.I. convictions which by his own admission were obtained in uncounseled proceedings. Section 4 of Act 549 sets the prison term for violation of Section 3 of the Act. The first offense is punishable by imprisonment from twenty-four hours to one year; the second offense, imprisonment from seven days to one year; the third offense, imprisonment from ninety days to one year; the fourth offense, imprisonment from one to six years. Appellant argues that the Baldasar decision is a mere plurality opinion and that its reasoning should not bind this court, but a fourth offense of the Arkansas D.W.I. law imposes an even lengthier prison term than the statute in Baldasar, and the holding still controls the facts in this case. We affirm the trial court’s suppression of the three uncounseled prior convictions.

After the trial court suppressed defendant’s uncounseled prior convictions, the state sought to amend the information to D.W.I., first offense. Neither appellant or appellee raised the constitutionality of Section 8 at the trial court or an appeal, so those issues will not be considered. Griggs v. State, 280 Ark. 339, 658 S.W.2d 371 (1983).

The court denied the state’s motion hold that Section 8 of Act 549 prevents the charge from being reduced. Section 8 states: “Persons arrested violating Section 3 of this Act shall be tried on such charges or plead to such charges and no such charges shall be reduced.” Section 3 provides: (a) “It is unlawful and punishable in this Act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.”

The trial court found the word “reduced” to mean a reduction in the penalty provisions of the statute. But Section 8 refers to Section 3 of the Act. The penalty provisions are found in Sections 4 and 5 of the Act.

A particular provision of a statute must be construed with reference to the statute as a whole. 2A Sutherland, Statutory Construction § 46.05. The “no reduction” language of Section 8 applies to the reduction of the offense, such as to reckless driving, not to the number of offenses.

The state is entitled to amend an information to conform to the proof when the amendment does not change the nature or degree of the alleged offense. Ark. Stat. Ann. § 43-1024 (Repl. 1977); Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982). Such authorization simplifies procedure and.eliminates some technical defenses by which an accused might escape punishment. Underwood v. State, 205 Ark. 864, 171 S.W.2d 304 (1943). The change sought by the state would not have changed the nature or degree of the offense but would merely have authorized a less severe penalty. See Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977) and Silas v. State, 232 Ark. 248, 337 S.W.2d 644 (1960). The trial court erred in refusing to allow the state to amend the information.

Affirmed in part, reversed in part.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Few, if any, Acts of the Arkansas General Assembly have received as much attention and publicity as has Act 549 of 1983. It is common knowledge that one primary objective of this Act was to prohibit trial judges from reducing second, third or fourth charges of DWI to first offense charges. The language is clear and unambiguous when its states: “Persons arrested violating Section 3 [§ 75-2503] of this Act shall be tried on such charges or plead to such charges and no such charges shall be reduced.” The clear and simple language used by the General Assembly obviously was intended to prohibit judges from reducing charges such as the one involved in this case. We must give effect to the legislative intent. Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980). I believe the legislature is capable of understanding the language used in this much debated legislation. It is not the concern of this Court whether the legislation results in fewer convictions and less revenue than the previous law on this subject. We should give this legislation the result obviously intended by the General Assembly. Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979).

The State in clear and unequivocal terms requested the court to reduce the fourth offense charge to a first offense charge. This flies in the face of the plain meaning of Act 549. The trial court followed the letter and intent of the law, in my opinion.

There is a question in my mind as to whether this Act is unconstitutional inasmuch as it appears to prohibit a trial court from reducing a charge from third offense to second offense, etc. If the proof in a particular case clearly establishes that an accused is guilty of a first, second or third offense the court is powerless to convict the offender if he has been charged with a fourth offense. However, that question is not presented in this case.

I would affirm.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Kenneth JONES v. STATE of Arkansas
    CR 84-85
    675 S.W.2d 825
    Supreme Court of Arkansas
    Opinion delivered October 1, 1984

      James W. Haddock, for appellant.

      Steve Clark, Att’y Gen., by: Marci Talbot, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The appellant Kenneth Jones and Dennis Williams, both aged 19, were jointly charged with burglary and aggravated robbery. They were tried separately. After Williams had been convicted, the appellant Jones was tried, found guilty, and sentenced as an habitual offender to concurrent terms of 30 years for burglary and life for aggravated robbery. There is no merit in the four arguments for reversal.

On May 3, 1983, the victim, Ruby Davis, aged 78, was living with her elderly husband in Dermott. He left home at about 8:00 p.m. on a brief errand. As he backed out of the driveway he saw Dennis Williams and Kenneth Jones using a public telephone across the street.

After Davis's departure the two young men rang the doorbell and forced their way in when Airs. Davis opened the door. Kenneth brutally attacked Mrs. Davis, demanding to know where her money was, while Dennis ransacked the house and found about $390. Mrs. Davis suffered a fractured skull, a brain injury paralyzing her left leg, a broken nose, an injured eye, and head injuries. She was hospitalized for a month and used a wheel chair after that. At the trial she identified Kenneth as her attacker.

Dennis was tried first and elected to testify at his trial. He said he and Kenneth had entered the house together. Kenneth grabbed Mrs. Davis, but Dennis ran to the back of the house, found the money, and fled. He said he did not see Kenneth hit Mrs. Davis and did not know until later that she had been hurt.

In the present case the State called Dennis as a witness, but in effect he refused to testify against Kenneth, saying he did not want to talk about the occurrence and was trying to forget it. From the record:

Q. Now who helped you [commit the crime]?
A. I’m through with that. I don’t want to talk about it no more.
Q. You don’t want to talk about it. You’ve talked about it before, haven’t you?
A. That’s right.
Q. You all of a sudden have a loss of memory?
A. You could say that.

In view of Dennis’s refusal to testify, the trial court permitted the State to introduce the record of his earlier testimony.

Before passing upon an objection raised during the selection of the jury, we will consider the appellant’s argument that the record of Dennis’s prior testimony was not admissible. That may have been true before our legislature adopted the Uniform Rules of Evidence, but such prior sworn statements are now admissible as substantive evidence in criminal cases. Ark. Stat. Ann. § 28-1001, Rule 801(d)(l)(i) (Repl. 1979). The Rule requires that the declarant be subject to cross-examination at the later trial, as Dennis was, and that his testimony be inconsistent with his earlier testimony.

The appellant argues that since Dennis professed to be unable to remember Kenneth’s part in the crime, that disclaimer was not “inconsistent” with his former testimony. Such an argument has been rejected repeatedly with respect to the identical federal rule, from which our rule was copied. We agree with this typical statement of the view taken by the federal courts:

The trial court has considerable discretion in determining whether testimony is “inconsistent” with prior statements; inconsistency is not limited to diametrically opposed answers but may be found in evasive answers, inability to recall, silence, or changes of position.

United States v. Russell, 712 F. 2d 1256 (8th Cir. 1983). To much the same effect is this language from United States v. Distler, 671 F. 2d 954 (6th Cir. 1981):

Thus, when a witness remembers events incompletely, or with some equivocation at trial, it is not improper to admit a prior statement that otherwise complies with the limitations of Rule 801(d)(1). . . . Determinations such as these are properly left to the discretion of the trial court, and that discretion was not abused here.

Perhaps it is true, as Weinstein suggests, that the prior testimony might not be admissible if the witness had suffered amnesia and genuinely could not remember the original occurrence. Weinstein’s Evidence, § 801(d)(1)(A) [04] (1981). On the record in this case, however, the basic rule controls. The trial court did not abuse its discretion in permitting the use of Dennis’s prior testimony.

Second, the prosecutor’s expectation of using Dennis’s earlier testimony had led to a defense objection during the selection of the jury. On voir dire the prosecutor explained to several veniremen that Dennis Williams had been convicted of the same crime, that Dennis had testified at his own trial, and that the prosecutor did not know what his testimony as a witness for the State would be; it might differ from his original testimony. The prosecutor, stating that he did not want the jury to hold the prior conviction against Kenneth Jones, asked if the veniremen could weigh Dennis’s two statements, if conflicting, and give his testimony the credibility they thought it deserved. Defense counsel asked for a mistrial on the ground that the jury should not have been told that Dennis had been convicted as an accomplice to the crime on trial. That particular objection is not argued on appeal, but it is insisted that a mistrial should have been declared because the jury was “saturated” with references to the possibility that the accomplice’s testimony might not be the same. Counsel argue tlrat it is “absolute error” to allow the State to inquire about evidentiary matters during the voir dire. No supporting authority is cited.

The trial judge has wide discretion in controlling the questions to be asked on voir dire. See Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). That is necessarily the rule, for the range of permissible inquiries and the diversity of legitimate questions are so great as to make it impossible to lay down rigid rules governing counsel’s examination of jurors. Relevancy and good faith are surely essential, but we do not perceive the absence of either in this case.

As to the relevancy, the voir dire is not limited to matters that might disqualify the juror, but also is to enable counsel to decide whether a peremptory challenge should be used. Cochran v. State, 256 Ark. 99, 505 S.W.2d 520 (1974). Here the prosecutor explained that he wanted to know whether a juror might “block out” the prior testimony because Dennis was a convicted felon. The prosecutor did not seek any commitment from the jurors except that they weigh the accomplice’s possibly conflicting testimony to determine its credibility. As to good faith, there is no indication whatever of bad faith. To the contrary, the prosecutor stated that Dennis’s being a convicted felon would come out on the witness stand (as it did), and “I’m not asking you in any way to hold that against this defendant, because he deserves a trial of his own by his own jury.” We find no abuse of the trial judge’s discretion in controllling the voir dire nor any indication that the jury was prejudiced by learning in advance a fact that was repeated again and again during the State’s case: that Dennis and Kenneth committed the crime together.

Third, it is argued that the sheriff should not have been allowed to testify that Dennis had told him that he had been at Rose’s Place in Dermott-at about 10:00 p.m. on the night in question, had gone to a gambling house for 15 minutes, and had ridden to McGehee with Rob Plumer. The testimony was certainly hearsay, but it was also of no importance. Kenneth’s defense, supported by his witnesses, was that he had been with several other persons either in Dermott or in McGehee from about 7:30 to midnight and could not have committed the crime in Dermott at eight o’clock. The challenged hearsay did not contradict that defense nor prove anything relevant. We do not see how it could have been prejudicial, nor does counsel point out any possible prejudicial effect.

Fourth. The trial was bifurcated, Kenneth having been charged as an habitual offender with two prior convictions. After the first stage of the trial resulted in verdicts of guilty, proceedings were had in chambers for a determination of the prior convictions. Since the enactment of Act 252 of 1981, that determination, at least when the evidence is undisputed, is to be made by the trial judge out of the hearing of the jury. Ark. Stat. Ann. § 41-1005 (Supp. 1983); AMI Criminal 7000 (1982).

When the court is to determine previous convictions, a duly certified copy of a record of a previous conviction is sufficient proof. § 41-1003. That proof was introduced in chambers in this case, in the form of certified copies of judgments showing that Kenneth Jones had pleaded guilty to theft of property in 1980 and to burglary in 1981. Those judgments were examined by the trial judge, were marked as exhibits, and are in the record. The proceedings were then resumed in open court, where the judge used AMCI 7001-A to inform the jury of the two convictions and submit the matter of punishment to the jury.

It is quite apparent that defense counsel did not understand the in-chambers procedure mandated by Act 252, for after the jury retired he put his objections into the record in language we quote in part:

There’s been no introduction of evidence as to prior convictions, and that the Judge unduly commented on the evidence without the documents being entered into evidence, and for these reasons we object [to his being] sentenced under the specific statute in addition to our objection awhile ago, state that no prior conviction properly proves that the jury properly considered it. . . . Notice that this is in chambers, and you don’t introduce evidence in chambers, you introduce evidence for the jury to [see], ... If they had attempted to introduce the evidence in the courtroom as properly required instead of out in the back room, the proper objection would have been made. You don’t introduce evidence for the jury in the back room. You introduce it in the courtroom, for them to look at it.

On this fourth point counsel’s brief, as we understand it, makes essentially two arguments. First, it is contended that the court did not have the hearing contemplated by Section 41-1005 (2), because the certified copies of the judgments were not formally introduced in evidence. The copies, however, were regular on their face, were examined by the court, were marked as exhibits, were placed in the record, and were the basis for the court’s instruction to the jury in the language of AMCI 7001-A, submitting the enhanced ranges of punishment. If this was not a literal compliance with the requirements, and we think it was, it was certainly a substantial compliance. Nothing essential was omitted.

Second, it is contended that the defendant was not given an opportunity to controvert the evidence of previous convictions, a right recognized by Section 41-1005 (2). Counsel, however, was present during the entire proceeding in chambers and had the opportunity to Offer whatever evidence he had. That he did not offer any was not due to any action by the judge but rather to counsel’s mistaken belief that an additional hearing had to be held in open court. Finally, an insuperable flaw in this contention is counsel’s failure to make any proffer of the proof that he supposedly wanted to introduce. Absent such a proffer, we cannot send the case back for a new trial that might prove wholly unnecessary for want of any competent evidence to rebut the prima facie proof of previous convictions. The proffer is vital.

Pursuant to the statute and rules governing appeals from a sentence of life imprisonment, we have examined the record and find no prejudicial error to which an objection was made.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. How far must we go before we adopt the plain error rule beyond Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983); Barnum v. State, 276 Ark. 477, 637 S.W.2d 534 (1982); Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981); Wilson & Dancy v. State, 261 Ark. 820, 552 S.W.2d 223 (1977); Sims v. State, 258 Ark. 940, 530 S.W.2d 182 (1975); and Bell v. State, 223 Ark. 304, 265 S.W.2d 709 (1954)? Precedentor notthere comesa time when this court should step in and correct prejudicial errors even though not technically raised at the trial level. In my opinion the jury was “conviction qualified” when the trial court allowed the state to question them about a convicted accomplice whose testimony was apt to change when he took the stand. As it turned out the accomplice did “not remember” his. prior testimony. His prior testimony was properly introduced during the trial. The state should have been limited to arguing the credibility of the witness after the matter arose during the course of the trial. This decision may well give the idea that it is permissible to set up a straw man and knock him down in the presence of the entire jury panel. Suppose the accomplice had testified the same at the present trial as he did at the first. The jury would still have had before it improper evidence that an accomplice had confessed for the appellant and that the accomplice had been convicted for a lesser role than appellant’s role in the crime.

The majority opinion could lead to all sorts of matters being presented on voir dire. For example the panel could be asked if they would believe a witness who would testify that the accused did in fact commit the crime for which he was being tried. It takes neither precedent nor imagination to understand the prej udice which could result from unbridled voir dire by the prosecution. “Death qualified” juries are bad enough but this court now goes one step fürther and allows “conviction qualified” juries. There is no valid reason why the state should not have been required to wait until the accomplice testified before attacking his credibility. The discretion of the trial judge is not boundless. In the early stages of the trial it would not have been too costly or time consuming to grant a mistrial.

I would reverse and remand for a new trial.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    Alva Donald ALLARD v. STATE of Arkansas
    CR 84-109
    675 S.W.2d 829
    Supreme Court of Arkansas
    Opinion delivered October 1, 1984

      Donald R. Huffman, Public Defender, for appellant.

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

Alva Donald Allard was convicted of aggravated robbery of the Town and Country Motel, which is south of Rogers, Arkansas. He was sentenced to 40 years imprisonment.

His conviction must be reversed because the clerk of the court read to the jury the original indictment which, in addition to the charge for aggravated robbery, included two counts of theft by receiving. This was at the beginning of the trial, and the appellant moved immediately for a mistrial, which the court should have granted because there was no way this jury could hear the case and remove from its mind the fact that the appellant was also charged with two counts of theft by receiving. The trial judge tried to admonish the jury and cure the error, but it is not the sort of error that can be so cured. He could not tell the jury it was a false statement, because it was not — the charges were pending. He could only point out that this trial was on an aggravated robbery charge. From the beginning, this defendant was not clothed with one of the constitutional benefits afforded all defendants in a criminal case, a right to a fair and impartial jury.

In Miller v. State, 239 Ark. 836, 394 S.W.2d 601 (1965), we were presented with a similar problem. The defendants had entered pleas of guilty to part of the charges in an indictment and not guilty to others. The prosecuting attorney was allowed to read that part of the charge to which the defendants had pleaded guilty. We held this was reversible error, as it destroyed the impartiality of the jury and denied the defendant due process of law. We have consistently reversed cases in which other charges or convictions were improperly brought to the attention of the jury. Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984). In two other Arkansas cases we held that the trial judge had not abused his discretion in denying a mistrial when testimony as to other offenses was introduced. However, in those cases the testimony was invited by the defense. Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984); Hayes v. State, 278 Ark. 211, 645 S.W.2d 662 (1983).

Two other arguments are raised but they are meritless. Appellant contends he was denied the constitutional right against self-incrimination in the introduction into evidence of a photograph, showing him in a ski mask, which had been rolled up, and glasses, and in his being instructed by the court to put on the glasses in the presence of the j ury. He further argues that the probative value of the picture and his wearing the glasses was outweighed by the danger of unfair prejudice.

The evidence of Allard’s guilt was substantial. There were three eyewitnesses to the robbery, all being in the motel office when it was robbed. They all identified Allard at the trial. He is an older man, in his fifties or sixties (he told an officer he was 50). He entered the motel wearing a ski mask, but it was not pulled down over his face. Instead he wore it as a toboggan (a cap), rolled up, covering only the top of his head. Allard wore glasses which had dark frames and, according to one witness, had a .25 caliber automatic pistol. Two women, who worked in the office were eyewitnesses. They were unable to make a positive identification looking at photographs; however, they described the robber to a police officer who composed a likeness using an identikit.

Apparently, nothing happened in the meantime until on July 4, when one of the eyewitnesses was in a laundromat and heard a man talking; she testified she knew it was the robber; she got a good look at him and was positive. She called her employer, who called the police. An officer came immediately to the laundromat. Allard followed the officer to the station where he was told he was suspected of the robbery, was read his rights, and interrogated. Allard denied he owned a gun or robbed the motel. He said he could not recall if he was in Rogers on the date in question. A search of his vehicle produced a green ski mask with a yellow stripe, which was identified positively by the witnesses as just like the one the robber wore. A .25 caliber automatic pistol was found in the glove compartment of the vehicle and was identified by two eyewitnesses as exactly like the one used by the robber. He was arrested after the officers found the gun. He was wearing glasses when arrested.

The defense objected to a photograph being introduced as evidence, showing Allard in the ski mask, which was rolled up and worn as a toboggan, and wearing glasses described by the eyewitnesses. The purpose of the photograph was to bolster the testimony of the eyewitnesses and show they gave good descriptions of the robber to the policemen and to the officer who created the composite using the identikit. A similar objection was made when Allard was requested to put the glasses on when one of the eyewitnesses testified and identified him. Allard did not wear glasses to the trial. The argument made in both instances was regarding the prejudicial effect only. It was purely a discretionary decision for the trial judge, and we cannot say he abused that discretion. Perry v. State, 255 Ark. 378, 500 S.W.2d 387 (1973). The overwhelming weight of authority is that similar evidence is admissible. One collection of all the cases on the subject of requiring a defendant to put on clothes or assume certain poses is contained in 3 ALR 4th 374 (1981). Three Arkansas cases that bear on the point are: Urquhart v. Slate, 273 Ark. 486, 621 S.W.2d 218 (1981); Coffey v. State, 261 Ark. 687, 550 S.W.2d 778 (1977); Williams v. State, 239 Ark. 1109, 396 S.W.2d 834 (1965).

The judgment is reversed and the cause remanded for the error first discussed.

Reversed and remanded.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the result but I would also hold that it was prejudicial error to allow the introduction of photographs of the appellant while being forced to wear clothing like that described by one of the victims. To allow such procedure could lead to the conviction of innocent people simply by being forced to put on clothing like the real criminal was wearing. Perhaps the trial court or one of the attorneys would strongly fit the description of the culprit if dressed in his clothing and forced to wear his glasses while in the presence of the jury. If this is permitted again at the trial I will dissent on the next appeal. There was plenty of valid evidence presented to convict without the state taking away the appellant’s right under the Fifth Amendment to the Constitution of the United States. The next case may not have such abundance of evidence of guilt but the precedent will be there unless we correct it now.


author: John I. Purtle, Justice.

text:
    Craig MADDOX v. STATE of Arkansas
    CR 84-68
    675 S.W.2d 832
    Supreme Court of Arkansas
    Opinion delivered October 1, 1984

      Billy L. Satterfield, for appellant.

      Steve Clark, Att’y Gen., by: Jack W. Gillean, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

This is an appeal from an adverse ruling by the trial court on appellant’s petition for Rule 37 relief based upon ineffective assistance of counsel. The appellant argues the trial court should be reversed because it erred in failing to find ineffective assistance of counsel and that it was prejudicial error to allow the trial attorney to sit in court during the hearing on the Rule 37 claim. We do not find that prejudice resulted from the errors committed by the trial court and therefore affirm the decision.

The facts of this case reveal that appellant, then 16 years of age, was arrested and charged with burglary and rape on September 1, 1980. During the investigation by the local police department, appellant was taken to the hospital where he was identified by the victim who was there as a result of the crime. Also, the police took the appellant to the scene of the crime and had him run across the yard of the witness who lived next door to the victim. He was forced to wear the same clothing and repeat the trip across the neighbor’s yard at different speeds. The retained trial attorney was able to suppress these out-of-court identifications as being impermissible under the law. The case was tried on January 30, 1981. Appellant was convicted of rape and sentenced to a term of 10 years. His appeal was dismissed by his trial attorney before it was lodged in the appellate court. A hearing on his Rule 37 petition was held on August 29, 1983, and denied. It is from this order that the present appeal is taken.

We have had a multitude of cases recently which alleges ineffective assistance of counsel. For the most part these petitions are usually based upon hope and speculation rather than facts and the law. The present case is supported by the facts and the law at least to the extent that it could not be characterized as frivolous. Appellant’s brief acurately states the proper standards for determining ineffective assistance of counsel. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981); Strickland v. Washington, _ U.S. _, 104 S.Ct. 2052 (1984). To be successful on a claim of ineffective assistance of counsel a petitioner must first show that trial counsel’s performance was deficient. He must also show that the deficiency resulted in such prej udice to his defense that he was deprived of a fair trial; that is, a trial the results of which are reliable. We must now examine the facts and proceeding in the present case to determine whether the foregoing standards of ineffectiveness have been met.

At the Rule 37 hearing testimony was produced that a hearing was held on appellant’s motion to suppress the out-of-court identification of appellant. The motion was granted and over the objection of the appellant the in-court identification was permitted at the trial of the case on its merits. The neighbor did not identify the appellant at the trial. The victim stated she did not know the appellant personally but she had seen him walking up and down the street in front of her house several times a day for at least two weeks before she was raped. She also observed him in the alley near her house on the morning of the attack. She further stated, “I know it’s the same boy. ... no doubt. Those eyes, I would never forget.” There was no reference to the tainted out-of-court identifications. The appellant is absolutely correct in his argument about impermissibly suggestive procedures. In Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982), we held, “We agree with appellant’s argument that the state may not use in-court testimony and identification by witnesses whose testimony had been tainted by unconstitutionally conducted . . . procedures.” This court looks to the totality of the circumstances in cases to determine if there is a likelihood of misidentification. Perry v. State, supra; James & Elliott v. State, 270 Ark. 596, 605 S.W.2d 448 (1980). The facts in Perry were strikingly similar to the facts in this case at least as to the testimony of one witness. In Perry we held that it did not appear that the improper lineup was used to crystallize the witness’s memory in order for him to later make an in-court identification. We do not retreat from our previous position that when a lineup or showup is conducted for the purpose of crystallizing a witness’s later in-court identification it is the duty of the state to prove by clear and convincing evidence that the subsequent courtroom identification is based upon independent observation rather than upon the constitutionally defective procedure. U.S. v. Wade, 388 U.S. 218 (1967); Perry v. State, supra; and Montgomery v. State, 251 Ark. 645, 473 S.W.2d 885 (1971). An in-court identification can be held inadmissible as a matter of law only if, after viewing the totality of the circumstances, it can be assumed that the identification was patently unreliable. McCroskey v. State, 271 Ark. 207, 608 S.W.2d 7 (1980). After viewing the totality of the circumstances of the present case we cannot say that the victim’s testimony was unreliable. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). In any event, identification testimony at the trial is not a proper issue to bring before the court in a Rule 37 petition.

We next discuss the error by the court in allowing the trial counsel to remain in the courtroom during the Rule 37 proceedings. In an ineffective assistance claim the trial attorney does not become a party to the action. He should have been excluded from the courtroom during the testimony pursuant to the Rule 37 petition. We specifically ruled upon this issue as early as the case of Chambers v. State, 264 Ark. 279, 571 S.W.2d 79 (1978). We have generally held that such illegal procedure goes only to the credibility of the witness. Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). Although it was clearly erroneous for the court to fail to exclude the trial counsel from the hearing the matter was heard before the court without a j ury. As a practical matter a retrial would be a useless gesture in this case. Therefore, we hold that under the particular circumstances of this case the error was not prejudicial.

Affirmed.

Hays, J., concurs.


text:
    Charles FOWLER v. STATE of Arkansas
    CR 84-120
    676 S.W.2d 725
    Supreme Court of Arkansas
    Opinion delivered October 1, 1984

      Charles R. Swaty, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted by the Grant County Circuit Court for violation of the Game and Fish Commission’s regulations relating to the use of fishing nets. The trial court held that Ark. Stat. Ann. § 47-411(F) (Repl. 1977) was unconstitutional inasmuch as it attempted to override Amendment 35 to the Arkansas Constitution which authorizes the Game and Fish Commission to regulate, control and manage the fish, game and wildlife resources of the State. Appellant argues that the court erred in holding Ark. Stat. Ann. § 47-411(F) unconstitutional. He argues in the alternative that if the statute is unconstitutional, he had the right to rely on the statute until it was declared unconstitutional and was therefore not guilty of the charges against him. We do not agree with appellant’s arguments.

The facts of this case are not disputed. The illegal nets owned and used by appellant were in a private impoundment known as Clearwater Lake. The appellant and other property owners adjacent to the lake were joint owners. The nets here in question were in the water immediately behind the appellant’s back yard.

This court has already held that Amendment 35 gives the Game and Fish Commission exclusive authority to regulate sale of fish from private waters. The Legislature is divested of powers to regulate fish and wildlife except for making appropriations and to increase annual resident hunting and fishing licenses. Farris v. Arkansas State Game and Fish Commission, 228 Ark. 776, 310 S.W.2d 231 (1958). In Farris we held that fish farmers may utilize the fish raised in domestic waters for any purpose they desired, so long as it was not in violation of the regulations of the Game and Fish Commission.

The only undecided issue in this case is whether appellant is entitled to the protection of the unconstitutional statute. By enacting Ark. Stat. Ann. § 47-411(F) the General Assembly attempted to prohibit the Game and Fish Commission from regulating the harvesting of fish from privately owned waters. The facts of this case clearly establish Clearwater Lake as waters excepted by the statute from regulation by the Game and Fish Commission. The General Assembly has simply been divested of this power by Amendment 35. Arkansas Stat. Ann. § 41-206(3)(a) (Repl. 1977) allows an affirmative defense to violations of statutes, afterwards determined to be invalid, provided the actor engaged in the conduct in reasonable reliance upon the validity of the statute. In the present case the actor was not aware of the existence of the statute at the time of the violation. Appellant’s argument here that he relied upon Ark. Stat. Ann. § 47-411(F) is too late. Even if the constitutionality of the Act had been argued below he could not prevail because the record clearly reveals he neither relied upon the invalid statute nor did he plead it as an affirmative defense. Finley v. State, 282 Ark. 146, 666 S.W.2d 701 (1984).

Affirmed.


author: Steele Hays, Justice. Hollingsworth, J.,

text:
    Jerry Don OWENS v. STATE of Arkansas
    CR 84-36
    675 S.W.2d 834
    Supreme Court of Arkansas
    Opinion delivered October 1, 1984

      William R. Simpson, Jr., Public Defender, by: Deborah

      R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Marci L. Talbot, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Jerry Don Owens, appellant, was charged with capital felony murder, rape, and aggravated robbery. The state alleged in the felony information that Owens, acting in the commission of the offense of rape, caused the death of Gladys Anna Moore and on the same date engaged in sexual intercourse and deviate sexual activity with her by forcible compulsion. Another count charged Owens with the use of physical force for the purpose of committing a theft. Owens was convicted on all counts and sentenced to life imprisonment without parole. This appeal comes to us under Rule 29( 1 )(b) of the Rules of the Arkansas Supreme Court and the Court of Appeals.

Appellant raises three points on appeal. He claims the trial court erred in admitting a confession given by him soon after he was taken into custody. He argues that because the police lacked probable cause to arrest and detain him, his statements were the product of an illegal arrest.

Appellant’s second argument is a challenge to the constitutionality of death qualified juries and to the overlapping between the capital felony murder and first degree murder statutes.

Before considering the argument that Owens’ arrest was illegal, necessitating the suppression of his confession, we address the second and third points, both of which have been answered in other cases. We considered the question of death qualified jurors in depth in Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), rejecting the premise that jurors selected according to Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L. Ed. 2d 776 (1968) are so prone to convict that defendants tried by a jury so constituted are deprived of the right to a fair trial. We decline to overturn our decisions. See Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984), and Keeten v. Garrison, 742 F.2d 129 (1984).

Similarly, the proposition that our capital felony murder statute, Ark. Stat. Ann. § 41-1501 (l)(a) (Repl. 1977), and our first degree murder statute, § 41-1502 (1)(a), are void for vagueness because they overlap has been answered. Ruiz and Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981), Certiorari denied, 454 U.S. 1093 (1981). Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 73 (1980); Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977).

Owens lived with his girlfriend, Margie Cherry, and her mother and sister, whose home was near Ms. Moore, who kept a great many cats, more than she could clean up after. Ms. Moore kept fifteen to twenty cats,and was known as the "Cat Lady.” Owens’ confession provides this account: He asked Ms. Moore if he could use her telephone. Inside, he became annoyed by a comment she made and by an overpowering stench of cat feces. He said it was so strong that he became nauseated! He struck Ms. Moore twice in the face with his fist and she fell backward on a bed. He removed her clothing, covering her battered face with an undergarment, and sexually assaulted her. Before leaving, he took $20 from her billfold. There was proof that earlier that evening Ms. Moore had asked a neighbor, Dorothy Howard, to go to the grocery for her because she was not feeling well. Mrs. Howard used her own money to make the purchases and placed $20 in Ms. Moore’s wallet, delivering the wallet and groceries to Ms. Moore about 6:30 p.m. on December 15, 1982. Ms. Moore’s body was discovered about 4:00 p.m. on the next day. The medical examiner said her death occurred between 10 and 11:00 p.m. on the 15th.

Owens’ primary argument is that the trial court erred in admitting his confession and clothing as evidence. He maintains this proof is tainted because he was arrested without probable cause, citing Dunnaway v. New York, 442 U.S. 200 (1979) and Brown v. Sullivan, 422 U.S. 590 (1975).

On the morning of December 17, Sgt. Thorn, of the North Little Rock police department, went to Ft. Roots to interview Wayne Provencio, whom he knew. Provencio had left word at police headquarters for Thorn to contact him. When Thom questioned Provincio he told him that his neighbor Angela Cherry, Margie’s sister, had told him that Owens had come home on the night of the murder with blood on his clothing. Provencio, he said, thought Owens was responsible for the murder of Gladys Moore. Owens had come to Provencio’s house that same evening asking to be taken to a liquor store and Provencio noticed that his clothing was very clean and neat.

Sgt. Thorn knew Owens had been arrested for burglary and first degree battery involving a stabbing and, against the possibility of violence or flight, took three officers with him to the Cherry residence, arriving about 10:00 a.m. They were permitted to come in and found Owens still in bed. They said Owens gave them permission to examine and take his clothing and Margie Cherry told them she had washed blood stains from the clothing. One of the officers noted Owens’ boots had a strong odor of cat excrement, which he related to the victim’s house. Owens gave an alibi for his whereabouts at the time of the murder. There was testimony that Owens voluntarily accompanied the officers to police headquarters where the Miranda warnings were read to him and where he readily admitted his involvement in the crime.

Whether Owens accompanied the officers willingly is, of course, a material consideration, as one who does so cannot then claim he was coerced. See Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983). If so, the issue of probable cause for the arrest fades quickly, as there was proof that Owens’ alibi did not check out, adding to the evidence against him. We find nothing about the actual taking of the confession that renders it inadmissible. Owens claims he was under the influence of drugs when he confessed, but that testimony was refuted by other proof. Whether Owens’ presence at police headquarters was forced rather than voluntary is sharply disputed and much could be said in support of either side. The testimony was conflicting, as often occurs in these cases. The officers were unable to recall whether Owens was handcuffed before accompanying them, though Owens and the Cherrys assert that he was. If that were so, it would lend credence to the premise that Owens’ trip to headquarters was not by invitation but by compulsion, although there was testimony by the State that it was customary to handcuff individuals when the police car lacked a protective screen, as in this case. The trial court resolved these conflicts surrounding the confession in favor of the State and while we review the proof independently on appeal, we do give considerable weight to the findings of the trial judge where the evidence is in dispute. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981); Harris v. State, 244 Ark. 314, 425 S.W.2d 293 (1968). But assuming the arrest occurred at the house, we believe there was probable cause at that point. Probable cause is said to exist when the facts and circumstances within the officers’ knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been committed by the person being arrested. Brinegar v. United States, 338 U.S. 160 (1949); Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981). The officers had reason to believe that Owens, who lived near Ms. Moore, had come home with blood on his clothing the night of her murder. That information was confirmed by the comments of Margie Cherry the next morning. The scene of the murder was splattered with blood, and cat excrement from the twenty or so cats she kept was deposited profusely around the house. Owens’ boots bore the strong traces of cat feces. We make no contention that Owens could be convicted on that proof, but probable cause need not equate with proof sufficient to convict. It is enough if practical, common sense considerations of reasonable men, rather than legal technicians, point to guilt. McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979); Holmes v. State, 262 Ark. 683, 561 S.W.2d 56 (1978). In Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976) we said:

[P]robable cause is only a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the accused committed a felony, but not tantamount to the quantum of proof required to support a conviction. . . . The existence of probable cause depends upon the facts and circumstances of which the arresting officer has knowledge at the moment of the arrest.

Moreover, on appeal all presumptions are favorable to the trial court’s ruling on the legality of the arrest, and the burden of demonstrating error rests upon the appellant. Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981).

Even if it could be said that probable cause was lacking at this point, and that Owens’ remqval from the Cherry residence to the police station was involuntary, an illegal arrest does not necessarily taint what follows. If intervening circumstances occur which break the causal connection between an unlawful arrest and a confession, the confession, if otherwise admissible, may be used in evidence. Brown v. Illinois, 422 U.S. 598 (1975); Wong Son v. United States, 371 U.S. 471 (1963); Nardone v. United States, 308 U.S. 341 (1939); Brewer v. State, supra. Here, Officers Thorn and Farley went directly from the Cherry residence to investigate Owens’ claim that he had been with Jimmy Brown at Burns Park at the time of the murder. Brown denied being with Owens at all and this information was called in to police headquarters within thirty minutes, which would have been shortly after Owens arrived there. We take it that Owens’ confession took place at about eleven o’clock, as the taping interview was concluded at 11:27 a.m. The knowledge that Owens’ alibi was false provided sufficient intervening cause, if any were necessary.

A final argument is that there is no proof the theft of twenty dollars was accomplished according to the statute defining aggravated robbery, Ark. Stat. Ann. § 41-2102 (Supp. 1983):

(1) A person commits aggravated robbery if [with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another person, Ark. Stat. Ann. § 41-2103 (Repl. 1977)], and he:
(b) inflicts or attempts to inflict death or serious physical injury upon another person,

Owens submits the lapse of time between the death of Ms. Moore and the time she received the money from Mrs. Howard, some four hours, supports the assumption that she may have disposed of the money herself. Of course, Owens’ confession admits to taking the money, but this, he argues, may have been an afterthought.

Owens cannot be sentenced for capital murder and aggravated robbery, but he can be convicted of both. Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982). We need not attempt to fathom Owens’ mind to determine whether theft came to him as forethought or an afterthought to his attack on Ms. Moore. He admitted having only a few coins when he entered Ms. Moore’s home and then going promptly to purchase and consume drugs. The proof clearly permitted a finding that Owens took the money, and whether his primary purpose was other than obtaining money, it is enough under the circumstances that the murder and the theft occurred during the same brief interval. The jury could have inferred that theft was a purpose behind his assault, it need not have been the only purpose. The case is comparable to Johnson & Carroll v. State, 276 Ark. 56, 632 S.W.2d 416 (1982), where we said:

There is no merit to this argument. Intent or purpose to commit a crime is a state of mind which is not ordinarily capable of proof by direct evidence, so it must be inferred from circumstances, (citation omitted) The jury is allowed to draw upon their common knowledge and experience in reaching a verdict from the facts directly proved.

We have examined all other objections made during the trial pursuant to Rule 11(f), Rules of the Supreme Court, Ark. Stat. Ann. Vol. 3A (Repl. 1977) and find no error. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

Affirmed.

Hollingsworth, J.,

dissents, and adheres to his views expressed in Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984).


text:
    James SOUTHALL v. FARM BUREAU MUTUAL INSURANCE CO. OF ARKANSAS, INC.
    84-86
    676 S.W.2d 228
    Supreme Court of Arkansas
    Opinion delivered October 1, 1984
    [Rehearing denied November 13, 1984.]

      Davidson Law Firm, for appellant.

      Laser, Sharp ir Mayes, for appellee.
   P. A. Hollingsworth, Justice.

This case presents the sole issue of the proper amount of attorneys’ fees to be awarded the appellant’s attorneys. The facts giving rise to this appeal are as follows. The appellant had a $130,000 insurance policy through the appellee, insuring his chicken house against direct loss by hail. In January 1978, the appellant’s chicken house collapsed after being covered with an accumulation of sleet. The appellee refused to pay for the loss, contending that sleet was not covered by the policy. The appellant then filed suit which resulted in a jury verdict in favor of the insurance company. Appellant then appealed to this Court and we reversed, holding that sleet and hail were synonymous under the insurance policy. Southall v. Farm Bureau Mutual Insurance Co. of Ark., 276 Ark. 58, 632 S.W.2d 420 (1982). Appellee then tendered its policy limits, $130,000, plus a twelve percent statutory penalty, $15,600, and six percent interest from sixty days after the date of the loss, $37,978, a total of $183,578. The question of attorneys’ fees was submitted to the trial court, and after holding a hearing in which expert testimony and other evidence was presented, the court granted appellant attorneys’ fees of $40,944. The appellant is appealing that award, claiming it is inadequate. The appellee has filed a cross-appeal claiming the award is grossly excessive. This appeal is before us under Sup. Ct. R. 29 (l)(j) as it involves a case which has previously been appealed to this Court.

Appellant asks us to award an amount in attorneys’ fees of $73,431 (forty percent of $183,578) because this amount would fully reimburse him under his fee agreement with his attorneys. While appellant does not propose that we adopt a rule whereby we simply ratify the plaintiff’s fee contract once liability has been found in insurance cases, he does urge us to adopt what the trial court characterized as the “made whole theory” for his case. The trial court rejected the theory that the governing statute requires the appellant to receive a complete recovery so as to recover fees in accordance with the contract into which he and his attorneys entered. We affirm on both the appeal and cross-appeal.

The Legislature, not the courts, enacted Ark. Stat. Ann. § 66-3238 (Repl. 1980) providing for an award of a reasonable attorney’s fee against an insurer who wrongfully refuses to pay under an insurance policy. Our task is simply to carry out this legislative command. The computation of allowable attorneys’ fees under the statute is governed by familiar principles. These factors include the experience and ability of the attorney and the time and work required of him, the amount involved in the case and the results obtained, the fee customarily charged in the locality for similar legal services and whether the fee is fixed or contingent. Equitable Life Assurance Society v. Rummell, 257 Ark. 90, 514 S.W.2d 224 (1974). While courts should be guided by these factors, we have consistently held there is no fixed formula to be used in determining the reasonableness of a fee. New Hampshire Ins. Co. v. Quilantan, 269 Ark. 359, 601 S.W.2d 836 (1980); Federal Life Insurance Company v. Hase, 193 Ark. 816, 102 S.W.2d 841 (1937).

Appellant urges us to adopt a “made whole’’ result here because the fee requested passes the test of reasonableness in view of the factors in Rummell, and the fee represented the best offer from among the several lawyers he consulted. We do not read our cases to require us to compute fees mechanically and without question on the basis of a fee contract between the parties. It remains our duty to fix a fee that is reasonable. Automatic acceptance of a lawyer’s contract with a client would be an abdication of our duty to supervise the conduct of the bar and do justice to the losing as well as the winning side. Avalon Cinema Corporation v. Thompson, 506 F. Supp. 526 (E.D. Ark. 1981).

There was an evidentiary hearing in the trial court which primarily consisted of the testimony of appellant’s attorneys and two other local attorneys. The testimony that was elicited reflected that the attorneys were highly respected in the legal community. There was also testimony and evidence about the number of hours spent. On this factor the trial court’s task would have been aided had the time records of Mr. Jackson and Mr. Miller, the appellant’s attorneys, been more precise. Time apparently was added up for blocks or groups of dates and services, and since appellant had the burden of proof on the issue of attorneys’ fees, the trial court could not assume that certain types of services would require a certain amount of time. The award of an attorney’s fee is a matter for the sound discretion of the trial court and in the absence of abuse, its judgment will be sustained on appeal. Rummell, supra. In reviewing the record before us, we conclude that the fee as awarded by the trial court was appropriate.

Affirmed.


author: Per Curiam.

text:
    STATE of Arkansas v. Randal HARRIS
    CR 84-79
    675 S.W.2d 824
    Supreme Court of Arkansas
    Opinion delivered October 1, 1984

      Steve Clark, Att’y Gen., by: Randel Miller, Asst. Att’y Gen., for appellant.

      Hale, Lee, Young, Green ir Morley, by: Stephen E. Morley, for appellee.
   Per Curiam.

This case is similar to and controlled by the opinion in State of Arkansas v. Levert Brown, also decided today. The j udgment is accordingly affirmed in part and reversed in part and the cause remanded.


text:
    Lawrence J. WALKER v. STATE of Arkansas
    676 S.W.2d 460
    Supreme Court of Arkansas
    Opinion delivered October 1, 1984
    Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner entered a negotiated plea of guilty in July, 1983, to four counts of aggravated robbery, theft by receiving and a felon-in-possession-of-a-firearm charge. He was sentenced to a total of 40 years in prison on the aggravated robbery counts and four years on the theft and felon-in-possession charges. Soon thereafter petitioner filed a petition to vacate the pleas under A.R.Cr.P. Rule 37. An order was entered denying the petition on October 7, 1983. No appeal was taken.

Petitioner next filed a petition to withdraw the pleas pursuant to A.R.Cr.P. Rule 26.1. The trial court denied the motion, stating that motions pursuant to Rule 26.1 must be made prior to sentencing. The court also said that if the petition were considered as a petition to proceed under Rule 37, petitioner had already had one such petition denied and the second petition was denied for the reasons stated in the order denying the first petition. Petitioner mailed a notice of appeal of the denial of the Rule 26.1 petition to the circuit clerk but it did not reach its destination until three days after the 30 days for filing a notice of appeal had elapsed.

Petitioner now seeks a belated appeal. He contends that there is a "grace period” which grants an allowance of time for items to be transported in the mail. He also contends that the notice of appeal would have been mailed earlier if he had been afforded competent legal advice.

The Rules of Appellate Procedure, Rule 4 (a), provides that a notice of appeal shall be filed within 30 days of the entry of the order of judgment. There is no grace period as petitioner contends. Appellants, even those who proceed pro se, are responsible for following the rules of appellate procedure. Ignorance alone does not excuse an appellant of his responsibility to conform to the rules. Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); Grain v. State, 280 Ark. 161, 655 S.W.2d 425 (1983).

We also note that a petitioner whose Rule 37 petition is denied is not entitled to a second such petition unless the first was denied without prejudice. Rule 37.2 (b). Post-conviction petitions which raise grounds for relief cognizable under Rule 37 are considered petitions to proceed under Rule 37, regardless of the label given them by the petitioner. The trial court therefore could simply have dismissed the Rule 26.1 petition as being a subsequent Rule 37 petition.

Motion denied.


text:
    Don SELLERS, Carl WINN and CLOVERLEAF APARTMENTS v. WEST-ARK CONSTRUCTION CO.
    84-40
    676 S.W.2d 726
    Supreme Court of Arkansas
    Opinion delivered October 8, 1984

      Bethell, Callaway, Robertson ér Beasley, by: Edgar E. Bethell, for appellants.

      Phillip J. Taylor, for appellee.
   Webb Hubbell, Chief Justice.

After submitting a low bid of $239,975.00, appellee, West-Ark Construction Co., was awarded a contract to build an apartment project for appellants, Don Sellers and Carl Winn. The appellants had paid $25,000.00 for the project site and had obtained a loan to build the project from Farmers Home Administration in the amount of $260,000.00. Appellee completed the construction and was paid during the course of construction $239,975.00 plus $8,275.30 for change orders. Appellee then brought this action for fraud. He claimed that appellants had represented that if appellee would rebate appellants the $25,000.00 land cost,, appellants would pay appellee $260,000.00 for the project despite the terms of the contract. A jury awarded appellee $20,025.00 in actual damages for the misrepresentation, $25,000.00 punitive damages, and $2,000.00 for clearing the project site and spreading topsoil. Appellants urge six points for reversal. We affirm.

Appellants first argue that appellee’s deposit of a check tendered upon completion of the work in the amount of $27,055.79 and with the words “balance of contract” on its face constituted a waiver of all of appellee’s claims. Appellants contend that, based on the evidence of appellee’s acceptance of this check, the trial court erred in refusing a motion for directed verdict. Appellants also assert that the trial court erred in refusing their instruction to the effect that when a creditor cashes a check which on its face states “balance of contract,” the creditor may no longer assert his claim. In Southark Trading Co. v. Pesses, 221 Ark. 612, 254 S.W.2d 954 (1953), we said that to invoke the rule of waiver it is essential to show the defrauded party intentionally condoned the fraud, affirmed the contract, and abandoned all right to recover. See also Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972). This case concerns an alleged fraud discovered after receipt of the final payment. When appellee cashed the final payment check, he did not relinquish his right to pursue his fraud claim. Moreover, waiver and release are affirmative defenses that must be pled in an answer to a complaint. ARCP Rule 8(c). The record reflects that appellants did not affirmatively plead waiver or release. Also, appellants’ motion for directed verdict was not renewed at the close of all the proof which waives the original motion. Eckles v. Perry Austen Bowling Products, Inc., 275 Ark. 235, 628 S.W.2d 869 (1982); Granite Mountain Rest Home v. Schwartz, 236 Ark. 46, 364 S.W.2d 306 (1963).

Appellants’ second argument is that the trial court erred in instructing the jury that appellee’s burden of proof was by a preponderance of the evidence. Appellants offered an instruction that would have required appellee to prove fraud by clear and convincing evidence. Clear and convincing evidence of fraud is required in equity to cancel or reform a solemn writing, but proof by a preponderance of the evidence is the proper standard in fraud cases tried to a jury. Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972); Clay v. Brand, 236 Ark. 236, 365 S.W.2d 256 (1963). The instruction given was correct.

Third, appellants assert that the trial court erroneously admitted into evidence conversations between the parties concerning and leading up to the construction contract. The parol evidence rule is a rule which prevents the admission of evidence of contemporaneous or prior oral agreements which would contradict the terms of a written contract; however, in actions founded on fraud, parol testimony is admissible to show that the making of a contract was induced by fraudulent representations. Gainer v. Tucker, 255 Ark. 645, 502 S.W.2d 636 (1973); Hamburg Bank v. Jones, 202 Ark. 622, 151 S.W.2d 990 (1941); St. Louis I. M. & S. Ry. Co. v. Hambright, 87 Ark. 614 (1908).

Next, appellants contend that the trial court erred by excluding evidence of additional contracts between the parties after the completion of the construction project. A proffer of the contracts was never made. An objection to the exclusion of evidence cannot be considered on appeal in the absence of a showing of what the evidence would have been. Boyd v. Brown, 237 Ark. 445, 373 S.W.2d 711 (1963). When there is no proffer of evidence, we cannot say that it is prejudicial. Simmons v. McCollum, 269 Ark. 811, 601 S.W.2d 232 (Ark. App. 1980).

Fifth, appellants argue that the trial court should not have given jury instructions which permitted recovery on quasi-contract for site preparation and topsoil spreading because the written contract covered these items. The contract provided that topsoil and sodding was to be done by owner [appellants], not appellee. Although the contract did state the work included site work, the provision is not clear enough to merit an assumption that it represented a written agreement about site preparation.

Appellants assert that the contract specifically provided for the use of change orders, but the availability of change orders does not preclude a quasi-contractual obligation if the change orders were not used.

Quasi-contracts are not based on promises to pay or perform. They are obligations which are creatures of the law designed to afford justice. Downtowner Corp. v. Commonwealth Securities Corp., 243 Ark. 122, 419 S.W.2d 126 (1967). They arise where the law prescribes the rights and liabilities of persons who have not entered into any contract, but between whom circumstances have arisen which make it equitable that one should have a right and the other should be subject to a liability. Caldwell v. Missouri State Life Ins. Co., 148 Ark. 474, 481, 250 S.W.2d 566 (1921). See also Carpenter v. Josey Oil Co., 26 F.2d 442 (8th Cir. 1928).

The trial court did not tell the jury that the appellee was entitled to recover under quasi-contract, but merely authorized the jury to award damages based on quasi-contract if it found appellee entitled to recover. An instruction so given is not an incorrect declaration of applicable law. See Bates Coal and Mining Co. v. Mannon, 205 Ark. 215, 168 S.W.2d 408 (1943).

Appellants last argue error by the trial court in instructing the jury on punitive damages. The appellants did not object to the instruction. The failure to object to an instruction precludes a consideration of the issue on appeal. Willis v. Elledge, 242 Ark. 305, 413 S.W.2d 636 (1967).

Affirmed.


author: Darrell Hickman, Justice.

text:
    Jerome F. KNAPP v. STATE of Arkansas
    CR 84-137
    676 S.W.2d 729
    Supreme Court of Arkansas
    Opinion delivered October 8, 1984

      Evans, Farrar, Owens ¿r Reis, by: Bryan T. Reis, for appellant.

      Steve Clark, Att’y Gen., by: Marci L. Talbot, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Jerome F. Knapp was convicted in Garland County Circuit Court of six counts of passing bad checks totaling over $4,000. He was sentenced to six years imprisonment. There were two “hot check” statutes in existence when Knapp was charged. The first was a 1943 statute concerning checks drawn only on out of state banks. Ark. Stat. Ann. § 67-717 (Repl. 1980). The second was a 1959 statute pertaining to either in state or out of state banks. Ark. Stat. Ann. § 67-720 (Supp. 1983). Knapp was convicted under the 1943 out of state “hot check” law, § 67-717. Knapp’s checks were all drawn on a Texas bank.

On appeal Knapp raises one argument: the trial court instructed the jury under the wrong law because the instruction given was based on the later law, not the one Knapp was charged with violating. The instruction provided that if a check was passed on an account and returned “account closed,” that is prima facie evidence of intent to defraud.

It would seem that if the crime were exactly the same it would make no difference that the instruction was given, because it involves an evidentiary rule rather than a substantive rule of law. Romano v. B. B. Greenberg Co., 108 R. I. 132, 273 A. 2d 315 (1971). Furthermore, if we can, we should give legislation a construction to effect legislative intent. Vandiver v. Washington, 274 Ark. 561, 628 S.W.2d 1 (1982) . However, this is a criminal statute which must be strictly construed with doubts being resolved in favor of the accused. Clayborn v. State, 278 Ark. 533, 647 S.W.2d 433 (1983); Breakfield v. State, 263 Ark. 398, 566 S.W.2d 729 (1978).

The statute under which Knapp was convicted does not require intent to defraud as § 67-720 does. Furthermore, the later statute is prefaced with the phrase “For the purposes of this section. . . .” We cannot say with any confidence that the legislature intended the language in the later act to apply to all existing legislation pertaining to bad checks. The instruction therefore contains a provision missing from the old statute. Later the legislature corrected the mistake or oversight and repealed §§ 67-717 and 67-718, but that action has no bearing on this case.

We do not rule on the question of whether the instruction on prima facie evidence was proper: it may not be a proper instruction. See McAdams v. United States, 74 F.2d 37 (8th Cir. 1935); Cecil v. State, 283 Ark. 348, 676 S.W.2d 730(1984).

Knapp filed a pro se motion below alleging ineffective assistance of counsel and argues that issue on appeal. This issue is obviously moot.

Reversed and remanded.


text:
    William Terry CECIL v. STATE of Arkansas
    CR 84-156
    676 S.W.2d 730
    Supreme Court of Arkansas
    Opinion delivered October 8, 1984

      Darrell E. Baker, Jr., Public Defender, for appellant.

      Steve Clark, Atty. Gen. by: Patricia G. Cherry, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

William Terry Cecil was convicted by a Washington County jury of ten violations of The Arkansas hot check law, Ark. Stat. Ann. § 67-719, et seq. (Supp. 1983), and sentenced to eight years imprisonment. He makes two arguments on appeal. First, he argues that the law is unconstitutionally vague and, second, that the trial court refused to properly instruct the jury that one must have the “purpose” to defraud instead of an “intent” to defraud.

The first argument will not be considered because it was not raised before the trial court. Cain v. Arkansas State Podiatry Examining Board, 275 Ark. 100, 628 S.W.2d 295 (1980); Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980). The second argument we find meritless.

The trial court properly used Arkansas Model Criminal Instructions, specifically, AMCI3601, in this case to instruct the jury. We have held that the trial court should use such instructions unless explicit reasons are given for not doing so. Per curiam order of January 29, 1979, 264 Ark. 967. The relevant portion of the instruction given is as follows:

Second: That as to each of the 10 described checks above, the defendant, William Cecil, knew at the time he made or drew or uttered or delivered the check that there were not sufficient funds on deposit with the bank for payment in full of the checks and all other outstanding checks against such funds;
Third: That William Cecil made or drew or uttered or delivered the particular checks with intent to defraud.
If you find that the defendant, William Terry Cecil, made or drew or delivered or uttered the checks and that William Cecil had no account with the bank when the check was made or drawn or delivered or uttered, then you may consider that fact along with all of the other evidence in the case in determining whether William Cecil intended that the check or checks would not be honored and that he had the intent to defraud.

The appellant’s argument is that the phrase “intent to defraud” is the very kind of vague and confusing phrase the new criminal code was designed to abolish, by using instead such words as “purposely” and “knowingly” to describe criminal intent. The argument ignores that the hot check law is not and never was a part of the criminal code, and the phrase “intent to defraud” used in this case was properly explained to the jury in the instruction given. Therefore, the court did not commit error in refusing to make the substitution requested.

Affirmed.