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

text:
    ARKANSAS CEMETERY BOARD v. MEMORIAL PROPERTIES, INC., d/b/a NORTH HILLS MEMORIAL GARDENS
    80-196
    616 S.W. 2d 713
    Supreme Court of Arkansas
    Substituted Opinion on Rehearing delivered May 11, 1981

      Martin J. Nevrla, for appellant.

      Kenneth E. Suggs, for appellee.
   Darrell Hickman, Justice.

On rehearing, we decide the controlling issue in this case was not raised at the administrative hearing. The question of the Board’s authority to order the twenty percent contribution was only referred to in the hearing during the cross-examination of Tommy H. Russell, Sr., president of Memorial Properties, Inc., by the Board’s attorney.

At the administrative hearing the appellee did not claim that the Board lacked the authority to impose a twenty percent payment; the twenty percent requirement had been imposed on the appellee previously and the hearing was held to see whether the funding request had been met.

It is an elementary principle of administrative law that an issue must be raised at the lower level to be pursued on appeal. This was clearly stated in Hennesey v. SEC, 285 F. 2d 511 (3d Cir. 1960), where the court said:

It is well established that issues not effectively presented to an administrative agency, where ample opportunity to do so has been afforded, cannot be raised on appeal of that agency’s decision. This principle may be viewed as one facet of the judicial doctrine of “exhaustion of administrative remedies.”

The United States Supreme Court stated the same concept in Unemployment Comm’n v. Aragon, 329 U.S. 143 (1946):

A reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the Commission of an opportunity to consider the matter, make its ruling, and state the reasons for its action.

The trial court held that the Board exceeded its authority when it ordered the twenty percent contribution and reversed the Board. Since that issue was not raised at the administrative hearing it could not be raised at the trial court. Therefore, the trial court’s order was wrong and its judgment is reversed.

Adkisson, C.J., and Purtle, J., dissent.

John I. Purtle, Justice,

dissenting. I would not grant the rehearing in this case because I think we correctly decided it in the original opinion. In order to determine whether the twenty percent contribution to the perpetual care fund was at issue in the lower court, I quote below two questions and answers which were abstracted by the appellant.

Q. And you don’t take the same attitude here about the 20% contribution amount that the Board requires?
A. I’m taking the same attitude, sir, but I’m paying it.
Q. in other words, you still contend that’s improper but you have been paying it?
A. That is correct.

It is obvious from the above questions and answers the appellee was contending at the hearing that the twenty percent was improper. There is another statement in appellant’s brief which I think bears upon this issue. It is as follows:

... that the transcript of the administrative hearing clearly indicated that Memorial Properties, Inc., had agreed to the 20% requirement and had previously recognized the Board’s authority to require such amount.

This also clearly shows the twenty percent requirement was considered at the administrative hearing. The appellant has presented nothing in the abstract which would be grounds for reversing the trial court.

It is obvious from reading both briefs that the appellant was trying to collect twenty percent of the gross sales from the lots in North Hills Memorial Gardens and the appellee was trying to keep from paying anything above ten percent. The whole heart of the hearing was designed to collect the additional ten percent and a penalty of ten dollars per day for each day the appellee had not paid the extra ten percent.

It is the appellant’s burden to prove his case before this court. A longstanding rule of this court is that we do not resort to the record in order to reverse; however, we may do so in order to affirm, as required in the interest of justice.


source: Caselaw Access Project

author: John I. Purtle, Justice. Steele Hays, Justice,

license: Public Domain

text:
    AMERICAN FIDELITY FIRE INSURANCE COMPANY v. BUILDERS UNITED CONSTRUCTION, INC. et al
    81-24
    613 S.W. 2d 379
    Supreme Court of Arkansas
    Opinion delivered March 16, 1981
    [Rehearing denied April 20, 1981.]

      Napper, Wood, Hardin, Grace, Downing & Allen, P.A., for appellant.

      Erwin L. Davis and Lisle & Watkins, for appellees.
   John I. Purtle, Justice.

Appellant filed a suit against appellees to recover money paid on appellees’ behalf while acting as surety for them on a construction contract. Appellant issued its policies without the signature of a valid agent as required by Ark. Stat. Ann. § 66-2221 (Repl. 1980). Appellees’ motion for summary judgment was granted on the grounds that contracts in violation of a statute are void even though not expressly declared so. The court further held that it would not lend its authority to enforcement of recovery under the terms of an illegal contract.

The only argument on appeal is that the trial court erred in granting appellees’ motion for summary judgment. We agree with the trial court and affirm the order granting a summary judgment to appellees.

American Fidelity Fire Insurance Company issued a performance bond as surety on behalf of Builders United Construction, Inc. The construction company defaulted and American Fidelity suffered losses totaling $82,071.19 in completing the contracts which they had guaranteed. At the time the surety contract was entered into Terry Hardesty, Sandra Hardesty, Larry McGarrah, Louise McGarrah, Ray Rogers and Carol Rogers signed a general agreement of indemnity in which they agreed to be personally liable for any losses incurred by the guarantor.

On June 1, 1978, the insurance company, appellant, filed suit in the Benton County Circuit Court against the appellees seeking to recover the amount of damages incurred in completing the contracts. Ray Rogers and Carol Rogers filed an answer denying all liability to appellant. Larry McGarrah and Louise McGarrah denied all liability to appellant. Neither the Hardestys nor Builders United Construction filed any pleading.

Payment in accordance with the agreement of indemnity was denied for the reason that the appellant’s agent was not licensed to sign the surety policies. The trial court found that the agent for American was not licensed as an agent in the state of Arkansas as required by law. The court further found that the policies were not countersigned by a resident licensed agent as required by law.

All parties agree that Ark. Stat. Ann. § 62-2221 (Repl. 1980) requires a performance bond to be issued through an agent in this state. The statute recites that the mere countersigning of a bond by an agent shall not be sufficient. The penalty for violation of this statute allows the commissioner of insurance to revoke the certificate of authority of any insuror which violates this policy. Therefore, there is no disagreement about the fact that appellant failed to comply with the statute relating to issuance of such policies.

In the case of Vick Consolidated School District No. 21 v. New, 208 Ark. 874, 187 S.W. 2d 948 (1945), we stated:

There are those cases in which an individual has dealt with the district, council, board, or other governmental subdivision in plain violation of the letter of the statute, and has received public money under a course of dealings forbidden by statute. In those cases the courts have not only refused the individual the quantum meruit for his services rendered, but have also allowed recovery by the governmental subdivision of any monies paid the individual, on a contract forbidden by statute.

In the case of Gantt v. Arkansas Power & Light Co., 189 Ark. 449, 74 S.W. 2d 232 (1934), we stated:

It seems to be the rule of universal application that any contract prohibited by a constitutional statute is absolutely void.

We cited as authority for the foregoing statement Ridge v. Miller, 185 Ark. 461, 47 S.W. 2d 587(1932). In Gantt we held that if the contract is void from its inception because it is prohibited by statute, it cannot be vitalized by subsequent acts of the parties thereto. Therefore, the appellant cannot force compliance with its illegal contracts.

We think the summary judgment was proper because there were no unresolved issues of fact to be determined by the trial court. Since we agree with the decision of the trial court, the case must be affirmed.

Affirmed.

George Rose Smith and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. The rule of law relied upon by the majority in affirming this case is not properly applicable to the circumstances presented. The decisions cited by the majority opinion dealt with the effects of statutes which are fundamentally different in their nature and purpose than the statute in question in this appeal.

In Vick Consolidated School District No. 21 v. New, 208 Ark. 874, 187 S.W. 2d 948 (1945), the court was presented with a contract by an unlicensed teacher to teach in the named school district. The statute at issue in Vick read:

That any person who shall teach in a common school in this state, without a certificate of his qualification to teach, shall not be entitled to receive for such services any compensation. ...

Act 46 of 1875, § 80.

The decision reached in Vick was, I believe, correct. The nature of the statute at issue was clearly prohibitory; its clearly expressed purpose was to prevent unqualified persons from teaching in public schools.

Here, however, the statutes in question are of a far different nature and purpose. Nothing in Ark. Stat. Ann. §§ 66-2221 and 66-2222 is prohibitive of the contract at issue in this case. And further, the apparent purpose of those two statutes is merely to ensure that “a resident agent... shall be entitled to the frill commission paid local agents.” Ark. Stat. Ann. § 66-2221 (2).

Even in Gantt v. Arkansas Power & Light Co., 189 Ark. 449, 74 S.W. 2d 232 (1934), cited by the majority, we recognized the principle that unless the statute involved absolutely prohibited the contract in question, some form of recovery was possible.

The prohibitory statute here involved does not, in terms, declare the contract to be “null and void.” The rule seems to be that, in the absence of the prohibitory words “null and void” and where the contract has been performed by the parties in good faith, compensation may be retained measured by the reasonable value thereof. Such recovery, however, is not because of the contract, but is grounded squarely upon the proposition that valuable services having been rendered which have been accepted by the parties, it would be inequitable and unjust to permit one party to substantially gain under the contract to the great and irreparable damage of the other. [Citations omitted.] Gantt, at 455.

And as early as Blanks v. American Southern Trust Co., 177 Ark. 832, 9 S.W. 2d 310 (1928), we applied the theory of estoppel to prevent a defendant from asserting the defense of illegality in order to escape his contractual duties once the agreement was partially performed.

It may have been true, as the majority asserts, that at the time of Gantt, (1934) or even Vick, (1945), “the rule of universal application [is] that any contract prohibited by a constitutional statute is absolutely void,”; however, such is no longer the majority view.

As stated at 15 Williston on Contracts, 3d Ed., § 1764:

The general rule that an illegal contract is void and unenforcible is, however, not without exception. It is not universal in its application. It is qualified by the exception that where a contract is not evil in itself, and its validity is not denounced as a penalty by the express terms of or by rational implication from the language of the statute which it violates, and that statute prescribes other specific penalties, it is not the province of the courts to do so, and they will not thus affix an additional penalty not directed by the lawmaking power, (at p. 238.)

I am of the opinion that where, as here, the statute is not in the nature of an absolute prohibition of the contract at issue, and where the purpose of the statute is one other than to protect the parties from the precise harm contemplated by the statute, then the party asserting the illegality of the contract should be estopped from raising such a defense to avoid his contractual duties where the contract has been fully performed on one side. default, also allowing them to avoid their own contractual liability to appellant as guarantors. Such a result is contrary to the underlying principles of fair play which the estoppel doctrine was intended to protect.

The effect of the majority’s decision today is to allow the appellees the full protection of the bond, under which appellant has paid claims totalling 582,071.19, for appellees’

I would reverse the trial court in granting the summary judgment.

George Rose Smith, J., joins in this dissent.


author: Robert H. Dudley, Justice.

text:
    J. Ted BLAGG and Kathye BLAGG, His Wife v. FRED HUNT COMPANY, INC.
    80-288
    612 S.W. 2d 321
    Supreme Court of Arkansas
    Opinion delivered March 16, 1981

      Robert B. Wellenberger, for appellants.

      Southern & Jones, by: Theodore Holder, for appellee and cross-appellant.
   Robert H. Dudley, Justice.

The appellee, Fred Hunt Company, Inc., a house builder, bought a lot in the Pleasant Valley Addition to Little Rock, built a house on it, and sold it to the Dentons on October 9, 1978. The Dentons sold the house to the American Foundation Life Insurance Company, which on June 29, 1979, sold the house to appellants, J. Ted Blagg and Kathye Blagg. This purchase by appellants was made a few days less than 9 months after the date of the original sale. The appellants filed a two-count complaint alleging that after they purchased the home a strong odor and fumes from formaldehyde became apparent. They traced this defect to the carpet and pad which was installed by appellee. A motion to dismiss was filed by the appellee and the trial court granted the motion on count one of the complaint, the implied warranty count, on the basis of lack of privity. The court denied the motion on count two, which is framed in terms of strict liability.

When considering a motion to dismiss a complaint pursuant to Arkansas Rules of Civil Procedure, Rule 12 (b) (6), on the ground that it fails to state a claim on which relief can be granted, the facts alleged in the complaint are treated as true and are viewed in the light most favorable to the party seeking relief.

Count one of the complaint is based upon an implied warranty. The trial judge dismissed this count because the appellants are not in privity with the appellee. This court, in Wawak v. Stewart, 247 Ark. 1093, 449 S.W. 2d 922 (1970), abandoned the doctrine of caveat emptor and took the view that a builder-vendor impliedly warranted the home to the first purchaser. The issue of first impression in this case is whether the liability of the builder-vendor should be extended to a second or third purchaser.

Since Wawak, the original homebuyer has been able to place reliance on the builder-vendor’s implied warranty. This has protected that investment which, in most instances, represents the family’s largest single expenditure.

We find no reason that those same basic concepts should not be extended to subsequent purchasers of real estate. This is an area of the law being developed on a case by case basis. Our ruling is based on the complaint before us and involves a home which had a defect that became apparent to the third purchasers, the appellants, within 9 months of the original sale date. Obviously, there is a point in time beyond which the implied warranty will expire and that time should be based on a standard of reasonableness.

We hold that the builder-vendor’s implied warranty of fitness for habitation runs not only in favor of the first owner, but extends to subsequent purchasers for a reasonable length of time where there is no substantial change or alteration in the condition of the building from the original sale. This implied warranty is limited to latent defects which are not discoverable by subsequent purchasers upon reasonable inspection and which become manifest only ¿Eter the purchase. Wyoming adopted this rule in a well reasoned opinion. Moxley v. Laramie Builders, Inc., 600 P. 2d 733 (Wyo. 1979).

Appellants next contend that even if the implied warranty extends to subsequent purchasers, we should affirm the trial court as there is an express warranty which is exclusive. We do not consider this argument as the complaint does not allege an express warranty, and the sufficiency of the complaint is all that is tested.

We hold that count one of the complaint should not have been dismissed.

Appellee, in its cross-appeal, contends that the trial judge committed error in not dismissing count two of the complaint, the claim for damages under strict liability. We affirm the trial judge’s ruling.

Our strict liability statute, Ark. Stat. Ann. § 85-2-318.2 (Supp. 1979) is as follows:

Liability of Supplier — Conditions. — A supplier of a product is subject to liability in damages for harm to a person or to property if:
(a) the supplier is engaged in the business of manufacturing, assembling, selling, leasing or otherwise distributing such product;
(b) the product was supplied by him in a defective condition which rendered it unreasonably dangerous; and
(c) the defective condition was a proximate cause of the harm to person or to property. [Acts 1973, No. Ill, § 1, p. 331.]

This 1973 act broadens somewhat § 402 (A) of the Restatement, Second, Torts (1965).

Before this statute was adopted, this Court avoided adopting strict liability in tort. See Ford Motor Company v. Reid, 250 Ark. 176, 465 S.W. 2d 80 (1971); Higgins v. General Motors Corporation, 250 Ark. 551, 465 S.W. 2d 898 (1971); and Gatlin v. Cooper Tire and Rubber Company, 252 Ark. 839, 481 S.W. 2d 338 (1972). The case of Mack Trucks of Arkansas, Inc. v. Jet Asphalt and Rock Company, 246 Ark. 101, 437 S.W. 2d 459 (1969) deals with § 85-2-318.1 and was decided before § 85-2-318.2, the statute we are interpreting, was enacted. We have approved the doctrine of strict liability in accordance with the statute. Cockman v. Welder’s Supply Co., 265 Ark. 613, 580 S.W. 2d 455 (1979); Harrell Motors, Inc. and Chrysler Motors Corp. v. Billy Flanery, 272 Ark. 105, 612 S.W. 2d 727 (1981).

Our first issue is whether this strict liability statute encompasses count two of the complaint. It is an oversimplification, but correct, to state that the construction of the word “product” is determinative. To decide the proper construction we have examined the few cases in other jurisdictions and various treatises.

Judge Henry Woods in The Personal Injury Action in Warranty Has the Arkansas Strict Liability Statute Rendered it Obsolete?, 28 Ark. L. R. 335 (1974), gives a most perceptive preview of the real issue. He notes that we must choose between the persuasive reasoning of two outstanding jurists — Chief Justice Traynor in Seely v. White Motor Company, 63 Cal. 2d 9, 403 P. 2d 145, 45 Cal. Rptr. 17 (1965), and Justice Francis in Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A. 2d 305 (1965). If the Traynor view is adopted, the implied warranty will be very much alive when a purchaser is suing for purely economic loss from a defective product. His view, as stated in Seely, supra, is that when economic losses result from commercial transactions, as here, the parties should be relegated to the law of sales:

Although the rules governing warranties complicated resolution of the problems of personal injuries, there is no reason to conclude that they do not meet the “needs of commercial transactions.” The law of warranty “grew as a branch of the law of commercial transactions and was primarily aimed at controlling the commercial aspects of these transactions.” ...
Although the rules of warranty frustrate a rational compensation for physical injury, they function well in a commercial setting.

Justice Francis, in Santor, supra, prophetically extended the doctrine in a case involving carpeting that developed a defect, a purely economic loss, not a personal injury. In applying the doctrine of strict liability for purely economic loss he said:

The obligation of the manufacturer thus becomes what in justice it ought to be — an enterprise liability, and one which should not depend on the law of sales ...

Quoting further:

As we have indicated, the strict liability in tort formulation of the nature of the manufacturer’s burden to expected consumers of his product represents a sound solution to an ever-growing problem, and we accept it as applicable in this jurisdiction. And, although the doctrine has been applied principally in connection with personal injuries sustained by expected users from products which are dangerous when defective, we reiterate our agreement with Randy Knitwear, Inc. v. American Cyanamid Company, [11 N.Y. 2d 5, 226 N.Y.S. 2d 363, 181 N.E. 2d 399 (1962)] that the responsibility of the maker should be no different where damage to the article sold or to other property of the consumer is involved. And see Morrow v. Caloric Appliance Corporation, 372 S.W. 2d 41 (Mo. Sup. Ct. 1963). In this era of complex marketing practices and assembly line manufacturing conditions, restrictive notions of privity of contract between manufacturer and consumer must be put aside and the realistic view of strict tort liability adopted. As was done almost 50 years ago in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, 1053, L.R.A. 1916F 696 (Ct. App. 1916), the source of liability must be put “where it ought to be.” Its source must be put in the law. Prosser, Law of Torts, supra, at pp. 680, 681.

Shipper v. Levitt and Sons, Inc., 44 N.J. 70, 207 A. 2d 314 (1965) was then handed down by the same New Jersey court with the following language:

The law should be based on current concepts of what is right and just and the judiciary should be alert to the never-ending need for keeping its common law principles abreast of the times. Ancient distinctions which make no sense in today’s society and tend to discredit the law should be readily rejected____We consider that there are not meaningful distinctions between [the] mass production and sale of homes and the mass production and sale of automobiles and that the pertinent overriding policy considerations are the same. That being so, the warranty or strict liability principles ... should be carried over into the realty field.

The cases of Berman v. Watergate West, Inc., 391 A. 2d 1351 (D.C. 1978) andKriegler v.Eichler Homes, Inc., 269 Cal. App. 2d 224, 74 Cal. Rptr. 749 (1969) allow recoveries from a builder-vendor on the basis of strict liability.

After lengthy consideration, we choose to adopt the view of Justice Francis. We find no valid reason for holding that strict liability should not apply to property damage in a house sold by a builder-vendor. Accordingly, in construing the Arkansas strict liability statute, we hold that the word “product” is as applicable to a house as to an automobile.

Reversed and remanded on direct appeal; affirmed on cross-appeal.


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

text:
    STATE of Arkansas v. Melvin Denver STOREY
    CR 80-243
    613 S.W. 2d 382
    Supreme Court of Arkansas
    Opinion delivered March 16, 1981
    [Rehearing denied April 20, 1981.]

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellant.

      Kenneth C. Coffelt, for appellee.
   Robert H. Dudley, Justice.

The appellee is charged by one information with committing three felonies. The trial judge granted a pretrial motion to suppress evidence on one of the charges, theft by receiving. The State brings this interlocutory appeal pursuant to Ark. R. Crim. P. 16.2 (d) and 36.10, Ark. Stat. Ann. Vol. 4A (Repl. 1977 and Supp. 1979).

The pretrial hearings were conducted in two parts. The first part, on September 10, 1980, developed the following scenario: About 4:10 a.m. on April 26, 1980, a state trooper saw a I960 Chevrolet pickup truck with no license plate. The trooper stopped the truck and found that, in addition to no car license, appellee had no driver’s license. In fact, he had no identification whatsoever. Later he claimed that he left his billfold at his garage. The trooper asked appellee to walk to the police car so that a vehicle license check could be run through a computer by using the police radio. The trooper knew the pickup was a I960 model, but appellee told him it was a 1964 model. While walking back to the police car the trooper noticed a tiller sticking out of the tarpaulin which covered most of the bed of the pickup, and next to the tiller he saw a box with a Magic Mart tag on it. Appellee volunteered that he had purchased the items at a Magic Mart store and he was taking them home. He had no sales slip.

They then walked back to appellee’s car, and because there was no license plate on the pickup, the officer opened the door to see if the truck had an inspection sticker. There was no inspection sticker, and in plain view was a pair of bolt cutters. While waiting on the radio report, the trooper asked if appellee cared if he looked at the other items under the tarpaulin. Appellee replied, “No, go ahead.” About that time the trooper received a radio message that appellee had no vehicle license. The trooper then radioed for a city policeman to investigate, and wrote out three traffic tickets, one for having no car license, one for having no driver’s license and one for having no inspection sticker. The trooper did not arrest the appellee for the offenses now before us, but left him with the city policeman. With this proof the first hearing ended and the learned judge ruled, “The Court finds that the tiller was seen in plain view, that the box was seen with the Magic Mart name on it; that the defendant gave permission for the officer to look in the box; that the bolt cutters were in plain view.” Further, “I find any statement the defendant made was voluntary.”

The second part of the hearing was the testimony of the city policeman. He stated that he received the trooper’s radio message to investigate at 4:10 to 4:12 a.m. and was at the scene by 4:15. The tiller and the Magic Mart boxes were in plain view. He could see that the I.B.M. cards on the Magic Mart boxes were not torn in half, the customary practice when sales are made in stores like Magic Mart. Within 5 to 10 minutes of his arrival, the city policeman placed appellee under arrest. Appellee then volunteered that he had purchased all the items in the pickup truck for $329 00, which the officer could see was a monetary impossibility. Appellee then said that he had been at his garage all night. The officer knew this was not true, as he had checked the garage twice that night and no one was there. It took about an hour more before a Magic Mart manager could be awakened, get dressed, come to the scene and determine from which Magic Mart the items were stolen. It was not until after the manager stated the goods had not been sold in the regular course of business that appellee was taken to the police station.

After this testimony the motion to suppress the evidence was granted. The basis for the suppression was because the police had held the appellee for longer than 15 minutes in violation of Ark. Stat. Ann. § 43-429 (Repl. 1977), our search and frisk statute.

The trooper was justified in stopping the appellee for not having a valid vehicle license. Enzor v. State, 262 Ark. 545, at 548, 559 S.W. 2d 148 (1977); United States v. Cortez, — U.S —, 101 S. Ct. 690 (1981). He only issued traffic citations and did not formally arrest the defendant. The city policeman made the arrest on the charge now before us, and it is his knowledge that gives or denies probable cause.

The policeman received the trooper’s radio message at 4:10 to 4:12 a.m. and was on the scene by 4:15. Within 5 to 10 minutes of his arrival, he placed appellee under arrest. The determination of probable cause must be made as of the time of arrest.

At that time the policeman knew the time of morning, that the appellee had no vehicle license, no driver’s license, no vehicle inspection sticker and no identification whatsoever. In plain view were bolt cutters and the new Magic Mart merchandise which had I.B.M. cards not torn in half. From prior police work he knew that similar stores tear these cards in half when merchandise is sold. The trooper had told him of the other items under the tarpaulin.

Based upon the totality of these circumstances, we hold that the policeman had probable cause to arrest the appellee. The policeman had a particularized and objective basis for suspecting the appellee of having stolen property in his possession.

A part of the evidence was in plain view. In Kelley v. State, 261 Ark. 31, at 36, 545 S.W. 2d 919 (1977), we explained the rationale of the plain view doctrine.

The observation of evidence in plain view is not a search, or to say the least, not an unreasonable one. A resulting seizure is not the result of an unreasonable search. Looking at what is in plain view or not concealed is not a search, as prying into hidden places would be. See, Gerard v. State, 237 Ark. 287, 372 S.W. 2d 635.

Detaining appellee at the scene after his arrest, rather than in jail, was reasonable under the circumstances. The only testimony before us on this subject is that of the policeman. He testified that he arrested appellee within 15 minutes and stayed at the scene to wait on the Magic Mart manager. Understandably, it takes some time at 4:15 a.m. to find the store manager, awaken him, wait for him to dress, and allow sufficient time for him to drive to the scene to identify the goods.

The trial judge relied on the 15-minute time limit, the search and frisk statute, Ark. Stat. Ann. § 43-429- The search and frisk statute is not a limitation on our statutory and common law provisions concerning arrest, plain view or search and seizure. Rather, it is in addition to them. A subsequent section of the search and frisk act, Ark. Stat. Ann. § 43-435 provides:

Stop and search distinct from right to arrest — Grounds to reasonably suspect —
(a) The right to stop provided in the new law [§§ 43-429 — 43-436] in no way changes the previously existing authority of an officer to make an arrest without an arrest warrant. The new rights to stop and to search, as defined in the new law, are separate and distinct from the established right to arrest, as provided by existing law, and to make a complete search incident to such arrest.
We find the arrest and the seizure valid.
Reversed and remanded.

Adkisson, C.J., not participating.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. It is admitted that the appellee was held for more than an hour, on a public highway, during which time the officers attempted to find some charge to lodge against him. Appellee was left with the Little Rock city officers after a state policeman had stopped and ticketed him for having no license plate on his vehicle, no driver’s license with him, and no inspection sticker. The state officer noticed that the appellee had a rather large quantity of new merchandise under a tarpaulin in the back of the truck. The obvious reason for calling in the city officers was to allow them to determine whether the goods on the pickup truck were contraband. By the most conservative estimate of anybody involved, the appellee was detained for more than one hour before it was determined that the merchandise on his vehicle was probably stolen.

It appears to me that we have a case which is controlled by Ark. Stat. Ann. § 43-429 (a) (Repl. 1977) which states:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person whom he reasonably suspects is committing, has committed, or is about to commit a felony, if such action is reasonably necessary to identify or determine the lawfulness of such person’s conduct. An officer acting under this section may require that person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes, at the end of such period the person detained shall be released without further restraint, or arrested and charged with a crime.

We have almost identical language set out in Rules of Criminal Procedure, Rule 31. This rule also puts a 15 minute limit on the time which a person may be held by an officer. Also, Rule 4.1 (a) and (d) states:

(a) A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed
(i) a felony;
*
*
(d) A warrantless arrest by an officer not personally possessed of information sufficient to constitute reasonable cause is valid where the arresting officer is instructed to make the arrest by a police agency which collectively possesses knowledge sufficient to constitute reasonable cause.

It cannot be seriously argued that the appellee was not detained for a period much longer than that which is authorized by rule or statute. In order to hold him for longer than 15 minutes, the officer must have some justification. It is somewhat more apparent at this time that the articles on the truck, which were in plain view, were probably stolen. However, even that has not been proven. Certainly the detaining officer had no information that the items had been reported stolen.

The chief reason for holding the appellee in this case was that the arresting officer, who formerly did guard work for Wal-Mart, stated that computer cards on merchandise were torn in half by Wal-Mart employees when the items were sold. The computer cards in the present case were not torn in half; however, the goods did not come from WalMart. The goods apparently came from Magic Mart, and the officer had never worked at a Magic Mart. The main reason appellee was held is that the officers had a “suspicion” that all was not well. This is simply not enough to hold a citizen in the United States. There must be reasonable cause to detain a person.

There is absolutely no dispute that the state trooper was initially justified in stopping this vehicle and in citing the appellee for violations in connection therewith. Neither is it disputed that the evidence was at least partially in plain view. However, plain view is not enough. As was stated in Coolidge v. New Hampshire, 403 U.S. 443 (1971), the plain view doctrine applies if (1) the initial intrusion resulting in the plain view was lawful, (2) discovery of the object was inadvertent, and (3) the incriminating nature of the object was immediately apparent. To say that a rotor tiller or a record player is of an immediately incriminating nature is folly. These items could be of an incriminating nature if a theft of the items had been reported. However, in the present case the police routed out the manager of every Magic Mart store in Little Rock and North Little Rock before finding one who tentatively identified the items as coming from his store and who stated he did not believe the items were sold. No store was burglarized, and nothing in the record negates the fact that these items could have been sold without the knowledge of the store manager. There is no evidence that Magic Mart even tears the computer cards in half after the merchandise is sold.

The plain view doctrine does not mean that just anything which is in plain view is subject to seizure. For example, an automobile is obviously in plain view when it drives past a police car stopped for the purpose of using his radar gun on passing motorists. However, it is not enough to allow the officer to disengage from his important function and arrest the driver of the car, unless the officer had in his possession information that a car fitting that description had been stolen. Only then would he be justified in stopping the driver of such vehicle for a period not to exceed 15 minutes.

The majority seem to completely ignore the case of Smith v. State, 265 Ark. 104, 576 S.W. 2d 957 (1979). In Smith the officers went to Smith’s house to arrest him on a hot check charge. After arriving at his residence they saw a Magnavox color television set which fit the description of one which had recently been reported stolen. They happened to have in their possession the serial number of the stolen Magnavox. Upon inspecting the one in Smith’s residence, they discovered the number matched the one on the report of the stolen television set. He was arrested for having the stolen Magnavox in his possession. The trial court found the search lawful and admitted the Magnavox into evidence. Smith was found guilty of theft by receiving. On appeal, we discussed the plain view doctrine, citing United States v. Johnson, 541 F. 2d 1311 (8th Cir. 1976). In reversing the trial court we stated:

It was admitted that none of the items appear to be incriminating by their nature; they were stock items available to consumers throughout commerce. Certainly there was no inadvertent discovery. The initial intrusion could only be lawful if consent was given.

The detention in this case makes a shambles of the Fourth Amendment to the Constitution of the United States. The decision justifies any type search or seizure so long as the result turns out right. I cannot under any circumstances subscribe to this theory of the law.


author: Steele Hays, Justice.

text:
    Dana Olivia Dunn SMITH v. Creighton SMITH and Neomie SMITH
    80-274
    612 S.W. 2d 736
    Supreme Court of Arkansas
    Opinion delivered March 16, 1981

      Ian W. Vickery Law Offices, for appellant and crossappellee.

      William G. Wright and Donald P. Chaney, Jr., for appellees and cross-appellants.
   Steele Hays, Justice.

This appeal stems from an attempt by appellant to set aside a decree of divorce granted to her former husband who died unexpectedly a few days afterward. Appellant and James Edward Smith married on September 2, 1978, and separated at the end of three months. In October of 1979, Smith filed suit for divorce in Union County, Arkansas, on grounds of general indignities, alleging sixty days residency in Arkansas. On October 22, 1979, appellant signed and verified that she had received a copy of the complaint, waived service of summons and entered her appearance for all purposes. On November 21, 1979, a decree of divorce was entered containing the necessary jurisdictional findings and finding that there were no children or property rights to be adjudicated. Five days later, James Edward Smith was killed in an industrial accident. The record discloses that appellant wanted the divorce, paid half the expense, planned to marry on its completion, and, evidently, deferred the plans because of Smith’s death.

On December 20, 1979, appellant filed a motion to set aside the decree of divorce, asserting that the decree was void for lack of jurisdiction, neither party being a resident of Arkansas. The motion alleged that the parties to the divorce were at all times domiciled in Louisiana, and that Smith had perpetrated a fraud upon the court in claiming to be a resident of Arkansas.

This motion was heard on May 7, 1980, and denied because appellant had failed to make a prima facie showing of a meritorious defense as required by Rule 60 (d), A. R. C. P. On appeal, appellant insists that the court erred in requiring a meritorious defense. We believe the chancellor was correct in the result and we affirm.

Whether it was necessary for appellant to plead and prove a meritorious defense under Rule 60 (d), we need not consider, as appellant’s motion to vacate the decree was properly denied on more substantial grounds. Appellant finds herself in a dilemma from which she cannot escape: either James Edward Smith was a resident of Union County, Arkansas, as he claimed to be and as the chancellor found, and the decree of divorce is valid and, hence, res judicata, Anderson v. Anderson, 223 Ark. 571, 267 S.W. 2d 316 (1954); or he was not a resident of Arkansas and perpetrated a fraud upon the court. If so, the appellant could not have been ignorant of that fraud and was a willing participant in it. In either event, she is precluded by the stigma of her own involvement from any relief against a decree of divorce obtained under these circumstances. See Leflar, American Conflicts Law, § 224 (1968).

Appellant argues that she was misled as to the grounds on which the divorce would be sought — that she was told the grounds were mutual fault when, in fact, the divorce was granted upon general indignities. We need not weigh the dubious merit of this argument, which bears the trappings of afterthought, as it is refuted by the plain wording of the complaint, which she admittedly received at the outset. If the issue mattered to her, she had ample opportunity to act before the decree.

On cross appeal it is argued that the chancellor should have charged the appellant with expenses and attorney’s fees in obtaining an order compelling appellant to answer six Requests for Admissions and three Interrogatories dealing with evidentiary matters. This determination rests with the trial court and will not be overturned unless a manifest abuse of discretion appears. Rule 37, A. R. C. P. Marshall v. Ford Motor Co., 446 F. 2d 712 (10th Cir. 1971);Diaz v. Southern Drilling Co., 427 F. 2d 1118 (5th Cir. 1970). We find no abuse of discretion in this instance.

The chancellor properly denied the motion to vacate and we affirm.


author: Per Curiam.

text:
    James K. KOMINSKY v. STATE of Arkansas
    612 S.W. 2d 738
    Supreme Court of Arkansas
    March 16, 1981

      Tom J. Keith, Public Defender, 19th Judicial District, for appellant.

      Steve Clark, Atty. Gen., for appellee.
   Per Curiam.

James K. Kominsky, by his attorney, has filed for a rule on the clerk.

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

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

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


text:
    William TERRY v. STATE of Arkansas
    613 S.W. 2d 90
    Supreme Court of Arkansas
    March 16, 1981

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

      Steve Clark, Atty. Gen., for appellee.
   Per Curiam.

William Terry, through his attorney, has filed a motion for a rule on the clerk. The motion admits that the record was not timely filed and states the reason for the delay is:

The record in this case arrived at the Appellate Public Defender’s office approximately two days before the due date, but was not turned over immediately to the attorney to whom it was assigned because the Appellate Public Defender’s director was involved with legislative efforts to continue operation of said office.

If the motion, verified, had stated that the attorney was at fault in making an error in the computation of time, or gave any good cause, the motion could be granted.

In a per curiam opinion regarding belated appeals rendered February 5, 1979, 265 Ark. 964, we discussed the problem of an untimely tender of a record caused by the attorney. There we said that we have no alternative except to grant the motion for relief in such a case. However, we pointed out that a copy of the per curiam order would be forwarded to the Committee on Professional Conduct as is our practice.

We do not hold that we will deny this belated appeal when a good cause is shown to grant the rule on the clerk.


text:
    John Edward SWINDLER v. STATE of Arkansas
    CR 79-116
    613 S.W. 2d 91
    Supreme Court of Arkansas
    March 18, 1981

      Lessenberry & Carpenter, by: Thomas M. Carpenter and Charles L. Carpenter, for petitioner.

      Steve Clark, Atty. Gen., by: Victra L. Pewell, Asst. Atty. Gen., for appellee.
   Per Curiam.

Petition for stay of execution granted until the further order of this court.

Adkisson, C.J., and Hickman, J., would deny this petition and would expedite a final determination of Petition under Rule 37.


author: Richard B. Adkisson, Chief Justice.

text:
    Charles Kirk HOWARD v. COUNTY COURT OF CRAIGHEAD COUNTY, Arkansas, Dennis GILLIAM, Judge
    80-225
    613 S.W. 2d 386
    Supreme Court of Arkansas
    Opinion delivered March 23, 1981
    [Rehearing denied April 20, 1981.]

      Barrett, Wheatley, Smith & Deacon, for appellant.

      Zolper & Everett, for appellee.
   Richard B. Adkisson, Chief Justice.

The issue presented in this case is whether an Arkansas court has personal jurisdiction over a nonresident putative father in a paternity action where the child was conceived and born in Arkansas and the mother and child reside in Arkansas.

This appeal is from a circuit court order denying a petition for a writ of prohibition to the appellee, Craighead County Court. The appellee had upheld the validity of personal service on appellant, Charles K. Howard, under Ark. Stat. Ann. § 27-2502(C)(l)(c) (Repl. 1979), commonly known as the Arkansas Long-Arm Statute which provides:

1. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person’s
(a) transacting any business in this State;
(b) contracting to supply services or things in this State;
(c) causing tortious injury by an act or omission in this State;
(d) causing tortious injury in this State by an act or omission outside this State if he regularly does or solicits business, or engages in any other persistent course of conduct in this State or derives substantial revenue from goods consumed or services used in this State;
(e) having an interest in, using, or possessing real property in this State;
(f) contracting to insure any person, property, or risk located within this State at the time of contracting; or
(g) receipt, whether in or out of this State, as a creditor or distributee or one claiming as such, of money or property from an executor, administrator or other personal representative serving under appointment by any probate court of this State.

Both parties agree that, to fit within the constitutional limits of our long-arm statute, the sexual intercourse must be classified as a “tortious injury” under subsection (C)( 1 )(c) of the above statute. This question has never been decided in Arkansas; however, it has been held in other jurisdictions that the act of sexual intercourse between consenting adults is not a “tortious act” which would allow the forum state to invoke long-arm jurisdiction over the nonresident putative father. B. v.P., 180 Colo. 439, 507 P. 2d 468 (1973), Carrington v. Schutts, 217 Kan. 175, 535 P. 2d 982 (1975).

The primary issue in a paternity case is whether the defendant is, in fact, the father — not whether failure to support was a wrong which the legislature intended to include within the meaning of “tortious act.” The act of sexual intercourse between consenting adults does not fall within the numerous definitions of a tort under the most liberal rules of construction. B. v. P.

Reversed.


author: Richard B. Adkisson, Justice.

text:
    Marshall WILLIAMS v. STATE of Arkansas
    CR 80-144
    613 S.W. 2d 94
    Supreme Court of Arkansas
    Opinion delivered March 23, 1981

      E. Alvin Schay, State Appellate Defender, by: Deborah R. Sailings, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Justice.

Appellant, Marshall Williams, was charged with felony theft of property and with being a habitual offender with four prior convictions. Just prior to his scheduled court trial on May 4, 1979, the court was informed of a negotiated plea between the parties. The terms of the agreement were that the State would recommend to the court a 30-year suspended sentence conditioned upon a plea of guilty and upon appellant providing truthful information about another crime. Before accepting the plea of guilty, the court specifically advised the defendant that he was not bound by the prosecutor’s recommendation and could sentence appellant to any term within the range provided by law. After accepting the plea, sentencing was postponed until June 1, 1979, at which time appellant failed to appear.

Appellant was subsequently arrested and brought before the court for sentencing. At this time the prosecuting attorney withdrew his recommended 30-year suspended sentence although appellant had fulfilled the conditions agreed upon at the time the plea of guilty was entered and accepted by the court. Appellant immediately moved the court to either hold the State to its bargain or to allow him to withdraw his guilty plea; the court denied the request and sentenced appellant to 20 years imprisonment.

The issue in this case is whether, following the State’s refusal to seek the sentence agreed upon in the plea negotiations, the appellant should have been allowed to withdraw his guilty plea under Ark. Rules Grim. Proc., Rule 26.1(c) (iv) (Repl. 1977), which provides:

(c) Withdrawal of a plea of guilty or nolo contendere shall be necessary to correct a manifest injustice if the defendant proves to the satisfaction of the court that:
(iv) he did not receive the charge or sentence concessions contemplated by a plea agreement and the prosecuting attorney failed to seek or not to oppose the concessions as promised in the plea agreement; ...

The State first argues that it was an implied part of the State’s bargain that appellant be on good behavior until the judgment and sentence were entered. We find no basis in the Rules of Criminal Procedure for sustaining this argument.

Next the State argues that a final determination of the sentence was within the discretion of the trial judge where, as here, the judge expressly informed the defendant at the time of taking the plea that the court would not be bound by the plea bargain. This is true only when considered in light of the above Rule which requires that the trial judge allow a plea withdrawal when the prosecutor fails to seek the agreed upon concessions at sentencing, following defendant’s full compliance with the terms of the plea bargain. The defendant is entitled to be assured that a plea withdrawal will be mandatory where the prosecutor fails to follow through with his end of the bargain. It would be inherently unfair for the judge to only bind one of the parties to the bargain.

Rule 26.1(c)(iv) contemplates that the trial judge will hold both parties to the plea agreement or release both. Under these circumstances the trial court could assess any sentence it felt was warranted where, as here, he had earlier reserved his right not to be bound by the plea bargain.

The court erred in refusing to allow appellant to withdraw his plea of guilty. Appellant’s plea of guilty is set aside and this case is reversed and remanded for trial.


author: George Rose Smith, Justice.

text:
    Lucinda DOZIER v. Grover Cleveland VEASLEY
    80-231
    613 S.W. 2d 93
    Supreme Court of Arkansas
    Opinion delivered March 23, 1981

      Milton Lueken, for appellant.

      Ben E. Rice, for appellee.
   George Rose Smith, Justice.

In this bastardy action brought by appellant to recover judgment for the support of her illegitimate child, the only question is whether the circuit court was correct in entering summary judgment for the putative father on the ground that the mother’s action is barred by the statute of limitations. The summary judgment must be reversed on the authority of a decision handed down by this court after the entry of the judgment below. Winston v. Robinson, 270 Ark. 996, 606 S.W. 2d 757 (1980).

The child was born on October 1, 1973, but appellant did not bring this action in the county court until July 12, 1979, more than five years later. The county court found the appellee to be the father of the child and ordered him to pay $20 a week for the child’s support from January 1, 1980, until the child reaches sixteen, the age limit fixed by statute. Ark. Stat. Ann. § 34-706 (Repl. 1962). On appeal the circuit court sustained the father’s motion for summary judgment on the ground of limitations.

We considered essentially the same question in the Winston case, where the issue was whether the three-year statute or the five-year statute was controlling, the suit having been brought four and a half years after the birth of the child. We applied the three-year statute, saying: “This Court holds that the three-year statute is the applicable statute, but that the statute does not bar the entire cause of action, only support for the period more than three years prior to the filing of the complaint.”

We are not persuaded by the appellee’s argument that, in spite of our holding in Winston, there are actually two causes of action in the mother, , one to establish paternity, which is governed by the five-year statute, and the other for support, which can be asserted only for the preceding three years. The statutes recognize only one fundamental reason for a bastardy action, the recovery of support money for the infant. In some instances the mother might not see fit to bring an action at once; she might, for instance, be self-supporting. But the child is the real party in interest and should not be deprived of needed support by the mother’s failure to bring an action. In fact, the statute provides that upon the death of the mother before judgment, the action is to be revived in the name of the child. § 34-704. We construe the statute liberally in favor of the child, in harmony with the legislative intent. In that, view the present action is not barred by limitations.

Reversed and remanded.

Adkisson, C.J., disqualified and not participating.


author: Frank Holt, Justice. John I. Purtle, Justice,

text:
    Ray Lee SPILLERS v. STATE of Arkansas
    CR 80-238
    613 S.W. 2d 387
    Supreme Court of Arkansas
    Opinion delivered March 23, 1981
    [Rehearing denied April 20, 1981]

      Young & Finley, by: James K. Young and Dale W. Finley, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was charged with first degree murder, Ark. Stat. Ann. § 41-1502 (Repl. 1977). He was convicted by a jury of second degree murder, Ark. Stat. Ann. § 41-1503 (Repl. 1977), and sentenced to 30 years imprisonment. Appellant’s first contention for reversal is that his statement was erroneously admitted into evidence.

According to appellant’s in custody statement, he and his wife had joined the victim, a friend of his and his wife, at a local club where they spent the evening drinking beer and dancing. When the couples left the club at closing, they proceeded to the parking lot, discussing where they would eat. Appellant and his wife had been arguing. He had some words with his wife on the parking lot, and he guessed the victim was trying to “settle me down or something. Kenneth [the victim] walked up and said he would whip my butt. Him or her said something that made me mad. I don’t remember pulling the gun out of my pocket. We were talking about going to eat. The last thing I remember was that my wife made me mad.” Appellant argues his statement was prejudicial, in spite of the fact he unquestionably held the gun that shot the deceased, because his admission is the only hint of a motive for the shooting. He conténds it should have been suppressed following the Denno hearing, because it was made at a time when he was susceptible to prompting; i.e., his mental condition was unstable, and he was not in full control of his faculties. The shooting was at approximately 1:30 a.m.; appellant was taken to jail about an hour later upset , and bordering on being hysterical according to one officer. Shortly before the interrogation began, he was informed of the death of the victim, that he was being charged with first degree murder and was properly warned of his rights. Appellant argues he was “very probably” still under the influence of alcohol and had been without rest or sleep.

Appellant had consumed no alcohol between 1:30 a.m. and 8:00 a.m., the time of the questioning. Officers, who were present at the interrogation, testified that, although the appellant was nervous and upset and there was an odor of alcohol about him, his speech was not slurred and he appeared rational. There is no evidence of the use of force or intimidation. Appellant did not testify at the Denno hearing. From our independent determinaton of the voluntariness of the statement, based upon the totality of the circumstances, we hold that the trial court’s finding that the statement was voluntary is not clearly against the preponderance of the evidence. See Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1975).

Appellant next contends the court erred in postponing its ruling on a pre-trial motion in limine. Defense counsel moved to limit cross-examination of the appellant concerning a prior conviction as to whether or not he had been previously convicted of a felony. He sought to have the state restricted from questioning the appellant about the details of the prior conviction unless his good character was placed in issue. The state argued the details were admissible to show lack of mistake or accident under Rule 404 of the Uniform Rules of Evidence. Counsel argued the defense was not alleging mistake or accident. The judge stated that he could not make an adequate ruling until he heard the testimony. Appellant asserts that he was entitled to know of the ruling in advance and, not knowing, the court’s postponement, in effect, forced him to make a choice between testifying and risking the introduction of the evidence or not testifying at all. He chose not to testify. Suffice it to say that since the matter is insufficiently abstracted, we cannot determine whether or not the court erred. The abstract merely speaks of the prior conviction as a “shooting.” It is not possible to tell if the details of the first conviction were in fact relevant to the issue of lack of accident or mistake, as the state argued. Therefore, we will not consider this argument on appeal. See Loveless, Comm’r v. City of Clarendon, 270 Ark. 705, 606 S.W. 2d 568 (1980); and Daniel v. Quick, 270 Ark. 528, 606 S.W. 2d 81 (1980).

Appellant’s third point is that the court erred in admitting into evidence a black and white photograph of the torso of the victim showing the location of the three gunshot wounds. The trial judge admitted the photograph, noting it was not a gory picture and probably had some probative value. Appellant argues that the undisputed testimony was amply sufficient for the state to prove every detail of the shooting which the photograph depicted, and the defense would stipulate that three shots were fired by the defendant and these shots caused the death. Furthermore, appellant contends he did not allege accident, and therefore the photograph would not be relevant on this ground. This is a matter that addresses itself to the sound discretion of the trial court, and we do not reverse unless there is shown an abuse of that discretion. See Prunty v. State, 271 Ark. 77, 607 S.W. 2d 374 (1980). We have held that the nature, extent and location of wounds are relevant and material on the question of intent and state of mind. Campbell v. State, 265 Ark. 77, 576 S.W. 2d 938 (1979). The fact that photographic evidence is cumulative or unnecessary, due to the admission of the evidence by the defendant, does not of itself make it inadmissible. Campbell v. State, supra; Perry v. State, 255 Ark. 378, 500 S.W. 2d 387 (1973). Here, we cannot say the trial court abused its discretion.

Appellant next contends it was error in giving an instruction on first degree murder. A defendant, who is acquitted by a jury of a first degree murder by the jury’s verdict of guilty of the lesser charge of second degree murder, as here, is not in a position to assert reversible error in the giving of the instruction on the greater offense of which he was acquitted. Brewer v. State, 251 Ark. 7, 470 S.W. 2d 581 (1971).

Neither can we agree with appellant’s argument that the evidence was insufficient to support the verdict of second degree murder. The court instructed the jury, without objection, that it could find appellant guilty of second degree murder if it found that the appellant knowingly caused the death under circumstances manifesting extreme indifference to the value of human life or that, with the purpose of causing the death did cause the death, or that with the purpose of causing serious physical injury caused death. Appellant fired three shots at close range into the chest and abdomen of the deceased. There was evidence that no argument occurred, everybody was “having a good time,” and the victim had his arm around appellant’s shoulders before the shooting occurred, after which appellant exclaimed he had shot his best friend. This, at least, amply supports a finding of extreme indifference to the value of human life.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. My primary reason for dissent concerns the introduction of the photograph of the naked torso of the decedent. The appellant had agreed and offered to stipulate that the three shots were fired and that he was holding and firing the gun and further that the shots caused the death of the victim. There was no dispute as to the location of the wounds on the body nor was there any dispute concerning any aspect of the shooting. I can think of only one reason to allow the introduction of a photograph under these circumstances, and that reason is for the purpose of inflaming the minds of the jurors. The photograph in question was probably the least inflammatory of any photograph which had been introduced in a criminal case. However, when there is absolutely no need for a photograph in order to prove the case, it ought to be error to introduce it.

Uniform Rules of Evidence, Rule 403, provides for exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. If there were any probative value whatsoever about this photograph, I am unable to discover it. In any event, the unfair prejudice most assuredly outweighs any imagined probative value. So far as I am concerned, the majority is holding that any photograph taken at or near the scene may be introduced and exhibited to the jury.

I further disagree with the majority in approving the handling of the motion in limine by the trial court. The motion should have been granted, in my opinion. It is not proper to show the details of former criminal acts unless they have probative value in the present case. By no stretch of the imagination could an incident which occurred more than ten years past be relevant as shedding light on the conduct in the present case. It would have been easy enough to rule that the prosecution could ask him if he had been convicted of a prior felony. By delaying the motion until the prosecution asked the questions before the jury is too late. It is like shutting the gate after the horse is out. The only reason a prosecutor would want to wait until this time and ask such questions is solely for the purpose of inflaming the jury or to create prejudice against an accused. A prosecutor is supposed to be seeking the truth and affording the state and the accused a fair and impartial trial. I do not consider such questions to fit in the category of fair and proper.


author: Darrell Hickman, Justice.

text:
    CITY OF GOSNELL et al v. CITY OF BLYTHEVILLE et al
    80-255
    613 S.W. 2d 91
    Supreme Court of Arkansas
    Opinion delivered March 23, 1981

      Seay & Bristow and Reid, Burge & Prevallet, for appellants.

      Graham Sudbury, for appellees.
   Darrell Hickman, Justice.

This is a case of two cities annexing the same twenty-five acres on the same day. The circuit court held the City of Blytheville’s annexation should prevail over the neighboring city of Gosnell.

On appeal we find that all the legal and equitable arguments are on Gosnell’s side and reverse the judgment.

The disputed twenty-five acres is a part of the Blythe-ville Air Force Base and contains housing for military personnel. In 1961 Blytheville annexed most of the base. The federal land, both that which was previously annexed and the twenty-five acres, is not served by either city. Neither city provides water or fire protection. Police protection in the past has consisted of the Blytheville City Police coming onto the base at the request of military authorities.

The dispute is actually over state turnback money, some $16,000 to $18,000 per year. Neither city will exercise any municipal authority over the territory unless the air base closes.

In 1961 when Blytheville annexed most of the base, the city also petitioned the county court to extend the township, Chickasawba, to include all the property to be annexed. The township boundary was changed to conform to the annexation.

The twenty-five acres in question are located in Bowen Township. Gosnell is located in Bowen Township and is adjacent to the twenty-five acres.

The circuit court found that Blytheville took the first valid act to annex the land, that Blytheville was the logical city to be granted the right to annex the twenty-five acres, and that the township problem was irrelevant.

We disagree with the court’s finding in all respects. Gosnell started to annex the property by passing an ordinance on April 8, 1975, calling for a special annexation election. That ordinance was rescinded April 24, 1975, because, according to testimony, the two cities hoped to work out the problem.

On October 21, 1975, Gosnell passed another ordinance calling for a special election on November 25, 1975. However, Blytheville passed an ordinance on October 27th calling for an election one day earlier — November 24th. Both elections were held and both ordinances passed. There is authority that when two cities act at the same time to annex land the city which takes the first valid step toward annexation should be favored. City of Jackson v. Grimm, 555 S.W. 2d 643 (Mo. Ct. App. 1977); Village of Farmington v. Minn. Mun. Comm’r, 284 Minn. 125, 170 N.W. 2d 197 (1969).

The circuit court’s finding that Blytheville acted first was wrong in our judgment; the record shows otherwise. Also, we are somewhat persuaded that Ark. Stat. Ann. § 18-105, in force then but since repealed, was relevant. That statute provides: “No township line shall pass through any town in this state, but the whole of each town shall be located in one (1) township.” (Replaced by Acts 1977 No. 742.)

Undoubtedly this law was intended to provide for the orderly maintenance of county government. A conflict of such boundaries would create innumerable problems because elections and local officials serve pursuant to such boundaries. A township line through a city would create a decidedly undesirable situation.

The court observed, however, that if Blytheville had been required to change the township boundary before the election to include the proposed twenty-five acres in Chickasawba Township, and the annexation failed, a no-man’s land would be created. We disagree. Numerous Arkansas towns and cities are located in townships and the municipalities do not encompass the entire township in which they are located.

The trial court found it was more logical to annex the property to Blytheville. Undoubtedly Blytheville’s city officials have worked well with the air base officials over the years. Most of the base is in the Blytheville city limits. But there is also evidence that Gosnell officials have worked with the air base officials and that the children living in the twenty-five acres attend schools in Gosnell. However, these factors cannot control the legal issue at stake.

We are persuaded that Gosnell’s claim, considering all the facts and circumstances, is legally superior to Blythe-ville’s.

Reversed.


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

text:
    STATE of Arkansas v. Michael Devond PRUE and Cathy Lucille PRUE
    CR 80-250
    614 S.W. 2d 221
    Supreme Court of Arkansas
    Opinion delivered March 23, 1981
    [Rehearing denied May 11, 1981.]

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellant.

      Jeff Duty, for appellee.
   John I. Purtle, Justice.

This is an interlocutory appeal on behalf of the state from the order of the Benton County Circuit Court suppressing certain evidence because of the deficiency of the affidavit for a search warrant. We think the trial court made the proper decision under the circumstances.

The affidavit for the search warrant stated in pertinent part as follows:

The undersigned being duly sworn deposes and says: That he (has reason to believe) that (on the premises known as) Michael D. Prue residence, in the Beaver Shores addition, first house east of Cypress Street and Birch Lane intersection, the residence in on Cypress Street, south side, facing east, grey with white trim single family frame structure, the next house to the east is purple in color. Bronze 1972 Chevrolet Camaro, Ark. license IBZ 681, registered to Michael D. or Kathy L. Prue.
* * *
in the County of Benton, State of Arkansas, there is now being concealed certain property, namely LSD and marijuana WHICH ARE in violation of Ark. Stat. 82-2617 ... the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: Wesley Frederickson, age 21, a resident of Benton County, reported to me, Dale Best, Arkansas State Police undercover officer, that on 6-21-80 at approx. 3:00 a.m. that he was at the Michael D. Prue residence, described above. Michael Prue indicated he had some LSD for sale and then he went to the refrigerator and removed a large ziplock type bag that contained several smaller bags, four of which contained 25 to 50 dosage units of what was represented by Michael Prue as being LSD and that it was for sale. At approx. 10:45 a.m. on 6-21-80 Trooper Keith Ferguson, Officers Gary Armstrong, of Rogers Police Department had the above described residence under surveillance and saw Michael D. Prue loading several items into a bronze colored, 1972 Chevrolet Camaro, Ark. License number IBZ 681. This vehicle was then stopped and secured by police officers and the occupants of the vehicle, Michael D. Prue and Kathy L. Prue. Wesley Frederickson also stated to me that he has purchased marijuana from Michael D. Prue, at the above described residence, on numerous occasions over the last six months.

This question will be considered under the Fourth and Fourteenth Amendments to the United States Constitution and Art. 2 § 15 of the Constitution of the State of Arkansas and the following statute and rules:

Ark. Stat. Ann. § 43-205 (A) (Repl. 1977):

A search warrant may be issued by any judicial officer of this State, only upon affidavit sworn to before a judicial officer which establishes the grounds for its issuance.

Rules of Criminal Procedure, Rule 131 (b):

The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained.

Rules of Criminal Procedure, Rule 13-3 (b):

In the course of any search or seizure pursuant to the warrant, the executive officer shall give a copy of the warrant to the person to be searched or the person in apparent control of the premises to be searched. The copy shall be furnished before undertaking the search or seizure unless the officer has reasonable cause to believe that such action would endanger the successful execution of the warrant with all practicable safety, in which case he shall, as soon as is practicable, state his authority and purpose and furnish a copy of the warrant, If the premises are unoccupied by anyone in apparent and responsible control, the officer shall leave a copy of the warrant suitably affixed to the premises.

This case stands or falls upon that portion of the affidavit for search warrant which attempts to establish the grounds for issuance of the search warrant. To be exact, the informant is described as follows:

Wesley Frederickson,, age 21, a resident of Benton County, Arkansas, reported to me, Dale Best, Arkansas State Police undercover officer, ...

There is nothing further in the affidavit concerning the identity of the informant. There are no words which even remotely hint that the informant had furnished prior information which had been reliable. In fact, there is not even a hint that the informant was acquainted with the affiant. Certainly, if the undercover officer had been able to make this statement of his own knowledge, there would be no question about the validity of the affidavit. However, when the reliance is totally upon a statement by an informant who has not been proven, it must stand a much more rigid test. As stated in Rule 13.1 (b), if an affidavit or testimony is based in whole or in part on hearsay, the affiant shall set forth the particular facts relating to the informant’s reliability. There are no such facts in this case.

The landmark case of Aguilar v. Texas, 378 U.S. 108 (1964), establishes a two-pronged test in cases where an officer obtains a search warrant on the basis of an informer’s statement. The two prongs of the test are: (1) some underlying circumstance showing that the informant is reliable; and (2) some underlying circumstance from which the informer concluded that the contraband was where he said it was. This case stands for the same proposition today. It is the first part of the two-pronged test which is the problem in the present case. Certainly there is nothing in the affidavit itself which would buttress any assumption that the informer was reliable. We must then turn to other cases for a further understanding of the problem. In the case of Little Rock Police Dept. v. One 1977 Lincoln Cont., 265 Ark. 512, 580 S.W. 2d 451 (1979), we dealt with the same problem. There we held that the Aguilar test was still the law in Arkansas. The informer in the Little Rock Police Dept, case described the driver and the automobile in quite some detail. However, he failed to satisfy either of the two requirements in Aguilar. It was also shown that the informant had worked with the police before but he had never worked with the affiant. In disposing of the case we stated:

Here neither requirement was satisfied. As to reliability, Officer Dawson had not previously acted upon information supplied by the informer, nor is it shown that the officer had any other basis for believing the informer to be reliable. The hearsay statement that “the office” had worked with him is not enough. Nor was the second requirement met. The informer merely said that Sands would be driving a certain car in delivering ten pounds of marihuana to the SAE House. He did not indicate in any way whatsoever how he reached that conclusion. Thus none of the underlying circumstances essential to a finding of probable cause were shown to exist. ...

We also considered the sufficiency of the affidavit for search warrant in Lunsford v. State, 262 Ark. 1, 552 S.W. 2d 646 (1977). The affidavit in Lunsford was made by the sheriff who stated he had reason to believe that marijuana was concealed in a mobile home occupied by Lunsford. His information came from an unnamed reliable informant who stated that Lunsford had a quantity of marijuana upon the premises for sale. The affidavit contained a statement of sufficient reason for believing the informant to be reliable, but there was no statement of any fact to show how the informant knew marijuana was in the mobile home. Thus, the second prong of the Aguilar test was missing. At the hearing the state attempted to supply the deficiency but was not allowed to do so. For a long time this court has recognized that an affidavit merely stating conclusions of an unidentified informant is not sufficient for a magistrate to find probable cause for the issuance of a warrant. Walton and Fuller v. State, 245 Ark. 84, 431 S.W. 2d 462 (1968). In Lunsford we further set out the requirement that the state was required to carry the burden of establishing the validity of a search warrant when its validity has been challenged. Russ v. City of Camden, 256 Ark. 214, 506 S.W. 2d 529 (1974).

Both sides seem to have relied on Baxter v. State, 262 Ark. 303, 556 S.W. 2d 428 (1977). This again was the challenge to the sufficiency of an affidavit and its relation to the reliability of the informant. The affidavit in Baxter stated in part as follows:

... The informant states that barbituates are presently stored in a refrigerator in the Baxter’s residence and a large quantity of marijuana is being hidden in one of the bedrooms of the residence. *** I believe my informant since Mr. Baxter has a long standing reputation with me and other police agents as a drug seller. (She (informant) is an addict and has been reliable as an informant to Benton City Police.)

The difference between the affidavit in Baxter v. State, supra, and the present case is immediately obvious. In Baxter both prongs of the Aguilar test were met. The informant had been proven reliable, and she described in detail where the marijuana was stored.

We next consider the case of State v. Lechner, 262 Ark. 401, 557 S.W. 2d 195 (1977). Again, we announced our adherence to the Aguilar rule. The affiant in this case stated that his information was supplied by two undisclosed informants whom he asserted were reliable. In fact, the affidavit starts out as follows:

Affiant states that on 1-28-76 a reliable confidential informant, who has proven to be very reliable in the past and whose information has resulted in the arrest of two felony cases, observed in the above-mentioned residence a large quantity of amphetamines (cross tops) and cocaine.

Again, it is obvious that the informant was reliable. No such statement was contained in the case before us. In Lechner we further stated:

But what of the informant who has just gone into the business or one who might be called the citizen-informer and who has no prior record of deals with the police in such matters? This is a tough problem, and perhaps the one we have before us. In that case there must be something in the affidavit or evidence presented to show the judge that the tip can be relied upon or the informant is telling the truth. If other evidence, besides the affidavit is before the issuing judge, it must be presented under oath and a record made of that evidence.

Appellant’s argument quotes extensively from Baxter v. State, supra, which refers to United States v. Harris, 403 U.S. 573 (1971). The quotation framBaxter indicates that Harris stands for the proposition that if the informant’s statements are declarations against interest, it is a sufficient basis for a finding of the informant’s reliability and credibility, at least when coupled with a showing that the person alleged to be carrying on the illegal activity has a reputation for engaging in such activities. That is either a misunderstanding or an incomplete statement. The opinion in Harris stated in part as follows:

... While a bare statement by an affiant that he believed the informant to be truthful would not, in itself, provide a factual basis for crediting the report of an unnamed informant, we conclude that the affidavit in the present case contained an ample factual basis for believing the informant which, when coupled with the affiant’s own knowledge of the respondent’s background, afforded a basis upon which the magistrate could reasonably issue a warrant. The accusation by the informant was plainly a declaration against interest since it could readily warrant a prosecution and could sustain a conviction against the informant himself. This will be developed in part III.

It is obvious that the statement in the foregoing opinion that the informant could be considered reliable when he made a declaration against interest that the court meant an incriminating statement which would uphold prosecution. In the case before us not only would the informant’s statement not uphold prosecution, it is not even incriminating as there is no way to prosecute him for the alleged participation in the illegal sale of marijuana.

Another case relied upon by the appellant was Maxwell v. State, 259 Ark. 86, 531 S.W. 2d 468 (1976). This case was decided prior to the effective date of our Rules of Criminal Procedure. Nevertheless, the informant, a man named Harris, gave information to the affiant that he participated in the crime with Maxwell. In fact, Harris was at the time under arrest for the same crime for which Maxwell was charged. It seems then that Maxwell holds that the informant must have proven his reliability and did so in this case by incriminating himself in furnishing the information. This is supportive of the appellee’s position in this matter.

It is not by accident that the Fourth and Fourteenth Amendments to the Constitution of the United States and Art. 2 § 15 of the Constitution of Arkansas have remained undisturbed for more than a hundred years. It is obvious that the people are content with the protection now afforded the citizens of this state and nation to be relatively secure in their homes and their automobiles without fear of illegal intrusion. It may seem harsh at times to forbid officers from making a search in a situation where there is known criminal activity taking place. However, the courts should be zealous in restricting searches to such situations where the information is reliable and there is indeed probable cause for the issuance of a search warrant. If the courts become lax and allow unreliable hearsay statements to constitute the foundation for the issuance of a search warrant, then we would soon see an end to the meaningful application of our present constitutional safeguards. No domicile would be safe because a disgruntled neighbor or former friend could have a search warrant issued for purely personal reasons.

We think the trial court rendered the proper decision and was correct in suppressing the evidence because of the deficiency in the affidavit for a search warrant.

Affirmed.

Hickman, Dudley and Hays, JJ., dissent.

Darrell Hickman, Justice,

dissenting. This is a search and seizure question and the majority has, in my judgment, deviated from our cases which hold that we view the problem of search and seizure with a common sense approach.

The affidavit in this case would satisfy constitutional requirements if Baxter v. State, 262 Ark. 303, 556 S.W. 2d 428 (1977) is any precedent at all. In Baxter the only information that supported the reliability of the undisclosed informant was the fact that the informant claimed she made recent purchases, and gave details regarding the place the drugs were located.

In this case even more details were given by the informant, declarations against interests were made, and the name and address of the informant was stated in the affidavit. In my judgment the court has ignored Baxter as a precedent. When the affidavit in Baxter is compared to the affidavit before us, there is no difference so far as reliability of the informant is concerned. The police officer in Baxter stated that the defendant, Baxter, had a reputation for dealing in drugs but that in no way lent itself to the reliability requirement regarding an informant.

In Baxter v. State, id, and State v. Lechner, 262 Ark. 401, 557 S.W. 2d 195 (1977), we emphasized that these affidavits should be viewed in a common sense and realistic fashion. The majority, in my judgment, is departing from that standard and reverting to a hypertechnical view of such affidavits.

I would suggest that in most of these cases the language of the Fourth Amendment is ignored and a refuge is sought in legal precedents which tend to confuse the state of the law rather than clarify it. The Fourth Amendment has one word which must always be kept in mind in examining search and seizure questions. That word is “unreasonable.” What was unreasonable about this search? This was not a case of a confidential, unnamed informant supplying information. The person’s name and address were given. Specific details were given regarding previous purchases of drugs by this individual, and, in fact, a map was furnished.

I would suggest that the majority has overruled Baxter v. State, supra, by its decision in this case. I would hold that the search was proper.

I am authorized to state Justice Hays joins in this dissent.

Dudley, J., joins in this dissent.