author: Robert H. Dudley, Justice.

text:
    Michael HALLMAN v. STATE of Arkansas
    CR 85-153-A
    706 S.W.2d 381
    Supreme Court of Arkansas
    Opinion delivered March 31, 1986

      J.F. Atkinson, Jr., for appellant.

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

Appellant, Michael Hallman, is one of three men jointly charged with first degree murder in the death of Ivey Jones. In a joint trial, Randy Hallman and Arthur Dale Taylor were found guilty of first degree murder, while appellant was found guilty of second degree murder. They appeal separately and, in separate arguments, assign unrelated points of error. Accordingly, we hand down concurrent, but separate opinions. In this case, we affirm the conviction for second degree murder.

On January 16, 1984, two hunters found the partially decomposed body of Ivey Jones in a remote section of Crawford County. The medical examiner estimated the date of death as December 8 or 9,1983, and found the causes of death to be a blow to the head with a blunt object and stab wounds through the back.

On February 3, 1984, Arthur Dale Taylor, one of the three defendants, gave a statement implicating himself and two others in the murder. On February 7, 1984, the appellant gave an inculpatory statement. The statements were edited and admitted into evidence at trial. See Gammel v. State, 259 Ark. 96, 531 S.W.2d 474 (1976).

Arthur Dale Taylor’s two edited statements are combined and summarized as follows: On the evening of December 8, nobody knew what we were doing except the three of us. We were in my 1972 Dodge Coronet. I was driving. I was told to tell Ivey Jones that a relative was coming from California. I stopped the car at Ivey Jones’ apartment. One of the others got out of the back seat and knocked on her apartment door and told Ivey Jones that her family was back and we were supposed to take her to the house. My understanding of the reason she was picked up was for her money. She got in the front right seat. The other two boys were in the back seat. One of the boys took a screwdriver and started hitting her in the head. I stopped the car. One of the boys pulled Ivey Jones out of the car and hit her on the head with a lug wrench. He then stabbed her with a knife. We got her out of the car and put her on the car trunk. We drove a short distance down the road and then dragged her into some bushes. We then went to my house trailer where I burned up my shirt because it had some blood on it and burned her shoes and purse. Somebody at my house asked me about the blood on my shirt.

The statements constitute proof that Arthur Dale Taylor and two other males planned to obtain money from Ivey Jones. In furtherance of that plan they drove to her apartment where she was enticed into the car. She was then murdered. That proof alone does not implicate appellant.

However, appellant gave two incriminating statements which are summarized as follows: I was with two male friends on the night of the murder. About three weeks before the murder my two friends were talking about robbing Ivey Jones. At that time, the plan was for me and a friend to spend the night at Ivey Jones’ house and leave either the door unlocked or the window up. On the night in question the three of us were driving around and thinking about robbing or burglarizing some place. They decided to break into Wal Mart Discount Store, but changed their minds. We then drove to the victim’s house. I did not know the reason we went to the victim’s house. I left the car, went to the victim’s apartment, and got her to join us in the car. Ivey Jones sat in the front right seat. One of the other two men then hit Ivey Jones on the head with a foot long screwdriver. I did not know that the other two intended to attack Ivey Jones. The victim was told they were at a hospital, and she either got out of the car or was lifted out when the other two men stabbed her with a knife and hit her on the head with a lug wrench. She was then placed on the hood or trunk of the car and taken to the place where her body was later found. The three of us then went to a trailer belonging to one of the men. I made some coffee and went outdoors to find that a fire had been built. The victim’s hat and purse were burned along with a bloody shirt of one of the other men. I did not tell anyone about the murder because I was afraid I could get the electric chair for it.

Regina McGrew testified that on the evening of December 8, 1983, the appellant, Arthur Dale Taylor, and Randy Hallman drove to Arthur Dale Taylor’s house trailer in a blue Dodge automobile. Appellant went inside, got three cups of coffee and took them outside. They were drinking coffee and Arthur Dale Taylor took off his bloody shirt, poured gasoline on it, and set it on fire.

Appellant’s principal point of appeal is that Arthur Dale Taylor was an accomplice and his statement was not sufficiently corroborated for a finding of guilt. The argument is without merit. The test for determining the sufficiency of corroborating evidence is whether, after totally eliminating the testimony of the accomplice, the other evidence independently establishes the crime and tends to connect the accused with its commission. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). It is not necessary that the corroborating evidence, standing alone, be sufficient to sustain the conviction. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245, cert. denied,_U.S_, 105 S.Ct. 162 (1984).

In appellant’s case, the testimony of the medical examiner corroborated the fact that someone killed Ivey Jones on December 8 or 9, 1983, by striking her on the head with a blunt object and stabbing her in the back. The testimony of Regina McGrew corroborated that appellant was in the presence of the accomplice and Randy Hallman on the evening of December 8, 1983. In addition, her testimony established that Taylor burned his blood-stained shirt while the appellant stood by. Most importantly, appellant’s statements corroborated that he knew there had been a discussion about robbing the victim and that he lured the victim into Taylor’s car where she was murdered. The corroboration is sufficient to sustain the conviction.

The appellant was sixteen years of age at the time of trial. Before trial, he filed a motion to transfer his case to juvenile court pursuant to Ark. Stat. Ann. §§ 41-617 and 45-420 (Supp. 1985). At the hearing on the matter, the Prosecuting Attorney testified that he charged appellant in circuit court because of the seriousness of the crime, because appellant lured the victim away from her home, left her in a remote area although she may still have been alive, made no effort to help her, and participated in a coverup of the crime. The trial court stated that the Prosecuting Attorney had used sound judgment and denied the motion based on the factors discussed by the Prosecutor.

The applicable statute, Ark. Stat. Ann. § 45-420, provides that the circuit court, in making the decision whether to retain jurisdiction or transfer the case to the juvenile court, shall consider: (a) the seriousness of the offense, (b) whether the juvenile is beyond rehabilitation, and (c) the juvenile’s prospects for rehabilitation.

The appellant contends that the trial court erred by not considering all three elements of the statute in the decision not to transfer. Wehave previously rejected the contention. In Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986), we said: “there is no requirement in the statute that equal weight be given to each factor, or that proof on all factors must be against the [moving defendant] in order for the court to retain jurisdiction.”

Appellant’s next assignment of error concerns the admission of photographs of the body of the victim. We find no error. In Prunty v. State, 271 Ark. 77, 607 S.W.2d 374 (1980) we stated:

[E]ven inflammatory photographs are admissible in the sound discretion of the trial judge “if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony or to corroborate testimony.” Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979); [citations omitted.] Whether or not the court should admit a photograph depends upon whether the asserted inflammatory nature is outweighed by its probative value; and neither is it rendered inadmissible merely because it is cumulative or unnecessary due to admitted or other facts proved.

Here, the photographs corroborate and illustrate the testimony of the law enforcement officer who investigated the scene and the testimony of the medical examiner. Their inflammatory nature did not outweigh the probative values. The trial judge did not abuse his considerable discretion in determining that these photographs were admissible.

The appellant next argues that the trial court erred in admitting his incriminating statements because he made the statements in reliance upon a promise of juvenile treatment, he never validly waived his right to remain silent, and his will was overborne by the officers. The Prosecuting Attorney and the police officers testified that no promise was made, appellant waived his right to remain silent, and the statements were made without coercion. Appellant and his mother testified that, at a meeting with the mother, the Prosecutor promised treatment as a juvenile if appellant would make a statement. A recording of the meeting with the mother contained no evidence of a promise.

The trial court expressly found that no promise was made to appellant or his mother, that appellant waived his right to remain silent and never asked that the questioning be stopped.

On appeal of a finding of voluntariness, this Court makes its own independent determination of the issue from the totality of the circumstances, but will reverse the trial court’s determination of the issue only if it is clearly erroneous. Lockett v. State, 275 Ark. 338, 629 S.W.2d 302 (1982). After making an independent examination of the testimony, we cannot say the trial court’s determination was clearly erroneous.

Affirmed.

Purtle, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Randy HALLMAN v. STATE of Arkansas
    CR 85-153-C
    706 S.W.2d 387
    Supreme Court of Arkansas
    Opinion delivered March 31, 1986

      Robert C. Marquen, for appellant.

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

Appellant, Michael Hallman, and Arthur Dale Taylor were jointly charged with the murder of Ivey Jones. Michael Hallman was found guilty of second degree murder while Arthur Dale Taylor and appellant were found guilty of first degree murder. They appeal separately. Opinions in all three cases are handed down this date. Appellant contends there was insufficient evidence to sustain his conviction. The argument is meritorious. We reverse and dismiss.

In January of 1984, the Crawford County Sheriff’s office was notified that two hunters had found a corpse in a rural area of the county. Investigation showed the corpse to be that of Ivey Jones. An autopsy showed that the victim died from two causes, blunt trauma to the left side of the head and four stab wounds through the back which pierced the right lung and the aorta. Investigation led to appellant, Michael Hallman, and Arthur Dale Taylor.

At trial, the in-custodial statements of each defendant were introduced into evidence after the names of the codefendants were deleted. See Bruton v. United States, 391 U.S. 123 (1968); Parker v. Randolph, 442 U.S. 62 (1979); and Gammel v. State, 259 Ark. 96, 531 S.W.2d 474 (1976). The inculpatory statements of Michael Hallman and Arthur Dale Taylor make no mention of appellant. Appellant gave an exculpatory statement in which he said he only saw Michael Hallman and Arthur Dale Taylor as they drove by his mother’s house. He said he then walked over to Taylor’s mobile home where a fire was burning outside.

Regina McGrew testified that the three of them were together outside Taylor’s mobile home when Taylor burned his blood-soaked shirt in the fire. That is all of the evidence connecting appellant to the crime.

The foregoing does not constitute substantial evidence of the guilt of appellant. The substantial evidence necessary to support a conviction must be of sufficient force that it will, with reasonable certainty and precision, compel a conclusion one way or the other; it must force or induce the mind to pass beyond a suspicion or conjecture. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982). Because no substantial evidence of the guilt of appellant was introduced, we reverse and dismiss.

Purtle, J., not participating.


text:
    Arthur Dale TAYLOR v. STATE of Arkansas
    CR 85-153-B
    706 S.W.2d 384
    Supreme Court of Arkansas
    Opinion delivered March 31, 1986

      Person & VanWinkle, by: John R. VanWinkle, for appellant.

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

Appellant, Arthur Dale Taylor, is one of three men jointly charged with the murder of Ivey Jones. In a joint trial, appellant and Randy Hallman were found guilty of first degree murder, and Michael Hallman was found guilty of second degree murder. They appeal separately. This is the second of the three appeals. In this case we affirm the conviction for first degree murder.

Appellant made two inculpatory statements while in custody, and both were allowed into evidence. He contends that the trial court erred in admitting the statements because they were procured by a promise not to arrest his wife if he confessed, and a concurrent threat to arrest his wife if he did not confess. A confession induced by a misleading promise of reward or a threat of harm is not a voluntary statement. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982).

The state bears the burden of proving by a preponderance of the evidence the voluntariness of an in-custodial inculpatory statement. Ark. Stat. Ann. § 43-2105 (Repl. 1977). Any conflict in the testimony of the witnesses is for the trial court to resolve. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981). We do not reverse the trial court’s ruling on voluntariness unless it is clearly erroneous. In making that determination, however, we do make an independent review of the issue based upon the totality of circumstances, with all doubts being resolved in favor of individual rights and safeguards. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). In examining the totality of circumstances, we divide the evidence in two categories: First, the statements of the police officials; and second, the vulnerability of the person in custody. Davis v. State, supra.

At the hearing on the motion to suppress, appellant testified that at first he told the police he did not want to make a statement. He stated that Officer Taylor told him they had a warrant for his wife and could have her arrested in Oklahoma and extradited to Arkansas. He stated that Sheriff Ball made similar statements to him. He testified that he called his wife in Oklahoma and told her that Sheriff Ball had told him that if he didn’t give them a statement they were going to arrest her on a governor’s warrant, and there wasn’t anything he could do except give a statement. He also told her that Sheriff Ball had agreed to let her visit him the next day if she could get there. Appellant further testified that Sheriff Ball talked to his wife on the phone and told her that appellant had agreed to cooperate if they were not going to arrest her. He then told her to come and see appellant the next day. Appellant’s wife verified the conversation and said Sheriff Ball told her she could come and see appellant the next day, and she wouldn’t be arrested because he and appellant had made a deal for appellant to give a statement on the murder charge.

Shirley Taylor, appellant’s sister-in-law, testified that she was with Sharon Taylor at the time of the phone conversation and that she also talked to appellant. He told her that he had made a deal with Sheriff Ball that if they wouldn’t arrest his wife, he would give them a statement.

Appellant additionally testified that the reason he gave the statements was to keep his wife from being arrested and having his children placed in a foster home.

The key part of Officer Taylor’s testimony is abstracted as follows:

I do recall him being hesitant at first. I believe what led him to go ahead and cooperate with us was that we told him we knew about the case, about some of the things that he’d said, indicating his involvement in it. I don’t know what caused him to cooperate and go out to the scene with us. His wife was discussed and I believe that he wanted to talk with his wife and wanted to tell her about his involvement in this prior to giving us a statement and, if I’m not mistaken, he expressed some concern at that time about that she would be arrested if she come over here. I believe he was told that she would not be arrested when she came over here and explained it to her. This was either prior to or during the time that he was talking. I don’t believe there was a deal made that his wife wouldn’t be arrested. I think the only time that that was said about her being arrested was that she wouldn’t be arrested when she come over and he explained it to her or talked to her prior to giving us a statement.

Sheriff Ball’s testimony on the issue is abstracted as follows:

I don’t recall telling Dale Taylor that if he didn’t cooperate that his wife could be arrested and that welfare would pick up his children. He asked us about his wife and I told him his wife could be arrested. I told him we have a warrant for smuggling contraband into the jail but as far as telling him that if he didn’t cooperate and give us a statement, no. I did have a lawful warrant for the arrest of his wife. I told him she would not be arrested that day if she come down there. She would not be arrested that day, whatever day it was that he was visited, which I’m not sure what day it was. This was after he’d already talked to us in reference to this before, but, then, he come back and made another statement. Up until we made this agreement, he had talked to us about it. I didn’t make any deals with him. He said he wanted to talk to his wife before he talked any more about the thing, that he wanted to explain everything to her. I didn’t make any deals, as far as making any deals to make a statement.

The trial court plainly found that the officers made no promise. The finding of fact is as follows:

The issue on Mr. Taylor is did the conversations about his wife and children amount to a promise that he relied upon to give his statements to Trellon Ball and the State Police. I recall the Sheriff’s testimony that the wife and children were not mentioned until after Mr. Taylor had given an oral statement to them that they were getting ready to go out to view the scene where the body was found and that was prior to him making the statement that was tape recorded. Number one, I don’t feel that the Sheriff and the State Police promised him that he could visit his wife in order to get him to cooperate. I think that this conversation came up and it was more of an accommodation to Mr. Taylor than it was a promise, if it was even an accommodation. I think they just felt that since he was cooperating with them that they would go along and cooperate with him; that they didn’t promise him he could see his wife, that that’s the only way he could see his wife, was to cooperate with them. I don’t think that’s what they did. I feel that at most it was an accommodation and they were going to, since he was cooperating with them, let him see his wife without the threat of arrest on the particular occasion. I feel it was not a promise and therefore, he didn’t rely on that. He was already talking to them and he merely continued to talk to them after they told him that they would let his wife come over and visit him.

After an independent review of all the testimony on the subject, we cannot say that the trial court’s ruling was clearly erroneous. Our ruling upon review is buttressed by the fact that appellant was an habitual criminal with five prior convictions, and apparently familiar with criminal procedure. He was not a vulnerable defendant.

Appellant next contends that the evidence seized from a warrantless search of the 1972 blue Dodge automobile was erroneously admitted into evidence. The argument is without merit. By the time the automobile was searched the appellant had sold it to a third person. Fourth Amendment rights are personal rights that may not be asserted vicariously.

Citing Jones v. United States, 362 U.S. 257 (1960), appellant claims “target standing” or standing to complain of the warrantless search of the car of another by virtue of being the one against whom the search was directed. In Rakas v. Illinois, 439 U.S. 128, 135 (1978), the Supreme Court of the United States expressly rejected the target standing theory mentioned in Jones.

At trial, appellant called several witnesses to testify that he was out of state at the time the murder was committed. In rebuttal, the state called a deputy sheriff to testify that appellant stated that he was in the county where the murder was committed on the date it occurred. The deputy started to testify that appellant had confessed to a burglary in the county on that date, but stopped his testimony upon defense counsel’s objection. The state withdrew the question, and the court offered to give a limiting instruction. The appellant refused the offer. The appellant’s motion for mistrial was denied. Appellant now contends that the trial court erred in denying his motion for a mistrial.

The admissibility of the deputy sheriffs testimony in rebuttal is not open to serious question. It was clearly relevant to disprove the alibi. The admissibility of such testimony is uniformly recognized. Williams v. State, 276 Ark. 399, 635 S.W.2d 265 (1982). Since the rebuttal testimony was properly admitted, the trial court did not commit error by refusing to grant a mistrial based on that testimony.

Affirmed.

Purtle, J., not participating.


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

text:
    The ESTATE of L.W. JOHNSON and Carutha JOHNSON v. Clarence CARR and Rosie CARR
    85-285
    706 S.W.2d 388
    Supreme Court of Arkansas
    Opinion delivered March 31, 1986
    [Rehearing denied May 5, 1986.]

      Eugene Hunt, P.A., by: Eugene Hunt and Lisa A. Kelly, for appellants.

      Wilton E. Steed, for appellees.

       Purtle, J., not participating.

   Steele Hays, Justice.

This appeal calls for an interpretation of a contract for the sale of land between L. W. and Carutha Johnson, appellants, and Clarence and Rosie Carr, appellees. The contract was made in 1966 and provided that:

for an additional ten dollars and other good and valuable consideration, . . . the sellers shall have the option to repurchase the real property involved in this contract in the event purchasers decide to sell ... in the event the purchasers desire to sell. . . they shall give the sellers written notice of their desire to sell and sellers shall have sixty days from the date of receipt of notice in which to avail themselves of this option to purchase. (Our emphasis).

The contract said the price of the land was to be, “not higher than the appraised value by two appraisers to be selected by the sellers and purchasers.” In January, 1976, the Johnsons delivered their warranty deed to the Carrs and the contract was incorporated into the deed.

On September 17, 1982, Mr. Carr wrote to Mr. Johnson as follows:

Mrs. Carr and I are seriously considering selling the North Cedar property we acquired from you in 1966. If you are interested in reacquiring this property, please call us or contact us by mail within ten days after receipt of the letter.

Through his attorney, Johnson wrote Carr that he wanted to exercise the option. Carr responded to the Johnsons’ letter on September 28:

Our attorney has informed us the option provisions . . . are no longer valid ... it is his opinion that the option expired when the terms of the contract were performed. This is the position we will take in this matter. Nevertheless, we will sell you the property pursuant to the following conditions.
1. Make us a serious offer within 5 days upon receipt of this letter.
2. We promise to negotiate seriously in reaching a mutual agreement.
3. We will consider a land contract with a substantial down payment.
4. We will also consider a subordination clause if a land contract is used.
5. If an agreement is reached, sale must be finalized in 6 working days. (Our italics.)

Johnson made an offer of $8,000, but got no response and when the Carrs refused to negotiate any further, the Johnsons sued for specific performance. The court found the option agreement violated the rule against perpetuities and dismissed the case. The Johnsons appealed and we reversed, finding no violation of the rule. Johnson v. Carr, 286 Ark. 369, 691 S.W.2d 161 (1985). On remand, no additional testimony was taken, and the court dismissed the complaint, holding the Carrs had not manifested an “intent and desire to sell the property involved by unconditionally offering the same to plaintiffs.”

This option to repurchase is not strictly an option, but is what is usually referred to as a preemptive right or a right of first refusal. See Corbin On Contracts, § 261 (1963). The right creates an option based on a condition precedent and ordinarily promises that before offering the property for sale or accepting an offer from another, the owner will first offer the property to the optionee at the offered price or at some predetermined price. The wording of these contracts, however, is critical and will vary from contract to contract, thereby affecting the specific right the option holder has. Id. § 261, 261 A. “Such is a Contract for a First Refusal, although the Right that it creates may be described in other terms. Such terms are ‘First Right to Buy,’ ‘Right of Preemption,’ ‘First Privilege to Purchase,’ ‘First Right and Option’. In no case are the legal relations of O and B [owner/ buyer] determinable from the name alone. In all cases, the interpretation requires knowledge of the entire context, context of facts as well as context of words.” Id. § 261 A.

We have not construed such a contract, but cases from other jurisdictions are informative in dealing with the contract language. In New Haven Trap Rock Company v. Tata, 149 Conn. 181, 177 A.2d 798 (1962), the option to repurchase was almost identical to the one in our case except for the verb: If the buyer “shall consider selling said premises,” notification must be given the seller to repurchase. In discussing this provision the court said:

The plaintiff and the defendants agree that the provisions in the deed relating to repurchase by the plaintiff created a preemptive right in the plaintiff rather than a strict option. In this case, however, the wording of the provision differs materially from that which is generally used and is cited in the cases and authorities upon which the defendants rely. Generally speaking, a preemption does not give a preemp-tioner the power to compel an unwilling owner to sell; it merely requires the owner, when and if he decides to sell, to offer the property first to the preemptioner at the stipulated price, [cites omitted]. Here, it was necessary only for Tata to give thought to or entertain the idea of selling. He did not have to decide to do so.

The court found the option triggered. While there were other considerations in the case that may have been more pivotal in the court’s decision than the construction of the language, their approach to the language is nevertheless instructive.

In Long v. Wayble, 48 Or.App. 851, 618 P.2d 22 (1980), the contract read, “Lessor agrees to give lessee first right of refusal on purchase of this property. . .at an asking price of $35,000.” The lessor did not notify the lessee of any intent and entered into a listing agreement asking $49,000. The lessee attempted to exercise his right of first refusal and the owner then withdrew the property from the market and declined to sell to plaintiff for less than $45,000. The court stated that the dispute in the case concerned whether the act of listing the property for sale satisfied the condition precedent to the lessee’s right to purchase the property — that the lessor be willing to sell. The lessor contended that listing the property was not an offer to sell, but merely an invitation to make an offer and that the lessee’s right did not come into play until some third party made an offer acceptable to him.

The Wayble court distinguished the case before it from those where the right of first refusal does not specify a particular price at which the owner would be willing to sell, should he later decide to do so. The court said:

In such cases, the owner’s willingness to sell is conditioned upon getting an acceptable price for the property at the time he makes the decision to sell and an offer from a third party is necessary to establish that price. . . .In this case, we conclude that the clause is clear that, if defendants decided to sell the property at all, they would first offer it to plaintiff for $35,000. (Our emphasis.)

That court then found sufficient evidence, i.e. the signed agency authorization to sell the property and the listing agreement which authorized the realtor to accept a deposit and create an escrow for closing. The court held, in effect, that a willingness to sell only at a higher price or not at all, is still a manifestation of an intent to sell. The court said, “The fact that defendants may, in retrospect, have made a bad bargain is immaterial.”

In Turner v. Shirk, 49 Ill.App.3d 764, 7 Ill.Dec. 461, 364 N.E.2d 622 (1977), the court found a “desire to sell” demonstrated by a decision to hold an auction and putting a “for sale” sign on the premises. The court found it was not necessary to prove the defendant would sell only at a specific price. “The right contained in the sale notices to reject all bids does not demonstrate a lack of desire to sell, but merely an unwillingness to accept a low price.”

Turning to this case, we believe there is insufficient evidence to conclude the Carrs had decided to sell, as we construe the contract. The first letter sent to the Johnsons stating they were “seriously considering” selling the property, clearly does not mean the Carrs had decided to sell. The second letter, written under the belief that the original contract option was not in force, also fails to rise to a decision to sell. In that letter the Carrs stated they would sell the property, provided the parties would negotiate seriously and subject to certain conditions. This is not an offer, merely an invitation to deal.

The words, “decide to sell” as used in this contract would not necessarily require a firm offer to the option holder or any third party to demonstrate such an intention and under other circumstances an invitation to deal might be sufficient to demonstrate a decision to sell, (see Long, supra; Turner, supra) but the cases must turn on the context of the facts as well as the words of each case. Corbin on Contracts, § 261A (1963). Here, we don’t find the evidence sufficiently persuasive to reach that conclusion.

Although a willingness to sell only at a higher price can evidence a decision to sell, we cannot conclude from the Carrs’ second letter that this was the case where there was only an offer to negotiate. It may have been that the Carrs’ plan was to sell at a higher price, but given the circumstances of the case and the language used, we could only speculate as to their motives in sending the second letter. On the record presented to the trial court the evidence was insufficient to show that the Carrs would ever be willing to sell, regardless of price. We cannot hold the chancellor’s finding in this regard was clearly erroneous.

Affirmed.

George Rose Smith, J., dissents.

Purtle, J., not participating.

George Rose Smith, Justice,

dissenting. The majority opinion is wrong, not merely because it allows the Carrs to “welsh” on their contract but also because it inflicts a manifest injustice on the Johnson family.

The Johnsons owned their home. Next to it they also owned two rent houses, a filling station, and the vacant lot in dispute. They agreed to sell the lot to the Carrs for $7,500, but only if they had a right to repurchase it at a fair price if the Carrs decided to sell the lot to a third person. The price has to be fair, because it will be fixed by two appraisers appointed by the parties and may be more or less than the original selling price.

Apparently the Carrs moved to California, where Carr went into the real estate business. In 1982 Carr wrote to Johnson about the lot. The first sentence in Carr’s two-sentence letter stated that the Carrs were considering selling the lot. I would agree with the majority opinion if the second sentence had read differently, perhaps making the whole letter read:

Mrs. Carr and I are seriously considering selling the North Cedar property we acquired from you in 1966. Please make some inquiries and let us know if this is a good time to sell a vacant lot in Pine Bluff.

But that is not how the letter read. Instead, it alluded to the contract and asked Johnson point-blank if he wanted to reacquire the property. Here is Carr’s letter:

Mrs. Carr and I are seriously considering selling the North Cedar property we acquired from you in 1966. If you are [interested] in reacquiring this property, please call us or contact us by mail within ten days after receipt of the letter.

Johnson did want to reacquire the property. He took the letter to his lawyer, from whose office a letter was written stating that Johnson wanted to exercise the option. At that point the parties had reached an agreement. Carr had stated not only his own desire to sell the property but also his wife’s desire to do so. Johnson had exercised the option to repurchase.

What happened after that is, in my opinion, immaterial. Carr apparently realized (Horrors!) that he might have to live up to his promise and resell the land at a fair price. He hastened to his own lawyer, who opined that the contract was too indefinite to be enforceable and that the option had expired when the contract was performed. Later on some lawyer thought of a third possible escape, the rule against perpetuities. Not even the lawyers, however, ever suggested that Carr’s letter to Johnson was not in compliance with the contract. Johnson was forced to take an appeal to this court to establish the obvious fact that the contract was perfectly good. The theory that the Carr letter had just been idle talk apparently surfaced for the first time in the chancellor’s written opinion, after the reversal.

With the affirmance, the parties are back to square one. On the first appeal we held that the contract is personal to the Carrs and to the Johnsons; so it would terminate upon the death of both Carrs or both Johnsons. Until that happens, presumably the lot will remain vacant and useless to everyone on earth. What should have been a simple case, easily disposed of,, has been so badly messed up that even the parties must find the situation disheartening. I would reverse and grant the appellant’s request for specific performance.


author: David Newbern, Justice.

text:
    Barbara BELL v. David BELL
    85-299
    705 S.W.2d 891
    Supreme Court of Arkansas
    Opinion delivered March 31, 1986

      Witt Law Firm, P.C., by: Ernie Witt, for appellant.

      Hixson, Cleveland & Rush, by: David L. Rush, for appellee.
   David Newbern, Justice.

The appellee sought enforcement of visitation rights pursuant to a divorce decree issued by a court in the State of Washington and registered in Arkansas. The appellant responded by seeking modification of the visitation provisions. The chancellor held he lacked jurisdiction to modify the Washington decree because of the Uniform Child Custody Jurisdiction Act, Ark. Stat. Ann. §§ 34-2701 through 34-2725 (Supp. 1985), and he, therefore, did not rule on the merits of the appellee’s modification petition. We reverse because we conclude the chancellor does have jurisdiction to modify the decree. The chancellor did not cite any particular section of the Act as precluding him from taking jurisdiction. Our review of each section of the Act discloses none which would bar him from doing so.

Section 34-2714(a) governs modification of custody decrees rendered by courts of other states. It provides:

If a court of another state has made a custody decree, a court of this State shall not modify that decree unless: (1) it appears to the court of this State that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this Act [§§ 34-2701 — 34-2725] or has declined to assume jurisdiction to modify the decree and (2) the court of this State has jurisdiction.

Whether the Washington court continues to have jurisdiction must be determined by reference to § 34-2703, and we find no provision there which would confer jurisdiction on the Washington court to entertain the appellee’s request for modification. Instead, the record before us shows the two children in question have resided in Arkansas with the appellee far longer than the six months mentioned in § 34-2703(a)(l), and thus Arkansas has, according to the Act, become their home state.

Nor is there evidence of any pending custody litigation in Washington or any state other than Arkansas. Thus § 34-2706(a) would not preclude the modification sought here. See Davis v. Davis, 285 Ark. 403, 687 S.W.2d 843 (1985).

Although we must reverse the chancellor’s determination that he lacked jurisdiction to modify the decree, we express no opinion on the merits of the appellant’s request for modification. No hearing was held on that issue, and thus we cannot engage in a de novo review with respect to the merits. Instead, we remand the case for a hearing on the question whether conditions have changed so as to warrant modification of the decree since the parties, by consent decree, registered the Washington court’s decree with the chancery court. Rains v. Alston, 265 Ark. 108, 576 S.W.2d 505 (1979).

Reversed and remanded.

Purtle, J., not participating.


author: Per Curiam.

text:
    Terry MOSS v. STATE of Arkansas
    705 S.W.2d 892
    Supreme Court of Arkansas
    Opinion delivered March 31, 1986

      R. Paul Hughes, III, for appellant.

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

Appellant, Terry Moss, by his attorney, R. Paul Hughes, III, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and it was no fault of the appellant. His attorney admits 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, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).

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

Purtle, J., not participating.


text:
    William OWENS v. STATE of Arkansas
    705 S.W.2d 892
    Supreme Court of Arkansas
    Opinion delivered March 31, 1986

      John F. Gibson, Jr., for appellant.
    No response.
   Per Curiam.

The appellant, by his attorney, John F. Gibson, Jr., has filed a motion for a rule to require the clerk to file the record in this case after the expiration of the time allowed. The attorney admits that the delay in filing the record was his fault.

The motion for a rule on the clerk is granted. See our per curiam order of February 5, 1979, 265 Ark. 964.

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

Purtle, J., not participating.


text:
    Mark STONE v. STATE of Arkansas
    CR 84-175
    705 S.W.2d 441
    Supreme Court of Arkansas
    Opinion delivered March 31, 1986

      William A. Lafferty, for appellant.
    No objection filed by Attorney General.
   Per Curiam.

In this case the appellant’s brief was originally due on June 8,1985. His attorney, William A. Lafferty, filed four motions for extensions of time, the last one extending the time for filing to August 1.

The brief was not filed on August 1. In fact, there was no activity at all in the case until the month of February, 1986, when the Attorney General filed a motion to dismiss the appeal fof failure to file a brief. That motion was not served on opposing counsel, as it should have been. In connection with that motion the Clerk requested that the record be returned by Mr. Lafferty, who had checked it out. The record was promptly returned. On March 14 the present motion to file a belated brief was filed, the motion stating that due to illness and severe emotional and financial difficulties the appellant’s attorney had been unable to complete his brief.

The explanation for a delay of more than six months does not appear to be adequate. The motion is granted, because this is a criminal case; but the matter is referred to the Committee on Professional Conduct for whatever investigation and possible action it may deem proper.

Purtle, J., not participating.


text:
    Earnest Lee WADE v. STATE of Arkansas
    CR 79-19
    706 S.W.2d 392
    Supreme Court of Arkansas
    Opinion delivered March 31, 1986

      Appellant, pro se.

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

Earnest Lee Wade was convicted of second degree escape and sentenced to ten years imprisonment and a $10,000 fine. He was declared a pauper, and Betty Dickey was appointed to represent him on appeal. After Dickey filed the appellant’s brief, appellant Wade asked that she be relieved and that he be allowed to proceed pro se. We granted the motion.

Appellant now asks permission to “supplement” the brief filed by Dickey. What he is actually requesting, however, is not to supplement the brief but rather to adopt counsel’s brief but substitute his own argument on one point for the argument written by counsel. Appellant has attached to his motion the pro se brief he intends to file if this motion is granted. It does not conform to our rules.

The motion is denied. Appellant was appointed competent counsel. He chose to refuse her assistance by voluntarily electing to exercise his right to represent himself. We considered the brief filed by counsel to be withdrawn when counsel was relieved. Since the attorney’s brief is no longer subject to consideration, appellant is responsible for filing a brief which conforms to our rules and which fully presents all his arguments for reversal. See Green v. State, 277 Ark. 129, 639 S.W.2d 512 (1982).

Motion denied.

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Doyne LOYD, et al., as Members of the Chicot County Bd. of Educ., Tommy POOLE, et al., Sam ADKISSON, et al., as Members of Lake Village Pub. School Dist. Bd. of Dir. v. Lonnie KNIGHT, et al., as Members of Ross Van Ness School Bd. of Dir., James HANDIE, et al., as Members of Eudora School Dist. & Bd. of Directors
    85-259
    706 S.W.2d 393
    Supreme Court of Arkansas
    Opinion delivered April 7, 1986

      Tarvin & Byrd, by: Timothy R. Tarvin and John R. Byrd, for appellants Sam Adkisson and Tommy Poole.

      Arnold, Hamilton & Streetman, by: Herman L. Hamilton, Jr., for appellant Doyne Loyd.

      Gibson & Gibson, P.A., by R. Bynum Gibson, Jr., for appellee Eudora School District.
   Jack Holt, Jr., Chief Justice.

This case presents the question: When a proper petition is filed under Act 445 of 1983, as amended, codified at Ark. Stat. Ann. §§ 80-4601 — 80-4612 (Supp. 1985), with a county board of education for annexation of school districts, must the Board annex districts that are contiguous? The answer is “yes”, and we affirm the holdings of the lower court. Our jurisdiction is pursuant to Supreme Court Rule 29(l)(c).

This action began on May 25,1985, when the Ross Van Ness School Board filed a petition with the Chicot County Board of Education to annex its district to the Eudora School District, a contiguous district, pursuant to Ark. Stat. Ann. § 80-4609(c). On June 10,1985, a majority of the Ross Van Ness patrons petitioned the Chicot County Board of Education to dissolve Ross Van Ness and to annex its district to a noncontiguous area, the Lakeside (Lake Village) School District, pursuant to Ark. Stat. Ann. § 80-418 (Repl. 1980). A hearing was held on June 24,1985, at which the Board of Education adopted the Ross Van Ness patrons’ petition. The Ross Van Ness and the Eudora School Boards appealed the board of education’s order to the Chicot County Circuit Court. The circuit court held that Act 445 of 1983, as amended, mandated annexation to adjoining districts and gave the board no discretion to deny the petition of the Ross Van Ness School Board since the Ross Van Ness School District adjoined the Eudora School District and did not adjoin the Lakeside (Lake Village) District. The lower court then set aside the board of education’s ruling and ordered that the Ross Van Ness School District be annexed to the Eudora School District. From these adverse rulings the appellants appeal and the appellees cross appeal.

Act 445 of 1983 is known as the Quality Education Act. The Act’s primary goal is the elimination of all public elementary and secondary schools that fall below the minimum standards for accreditation as set forth by the State Board of Education. Section 2 of Act 445, codified as Ark. Stat. Ann. § 80-4602(a), provides that all schools failing to meet the minimum standards shall be eliminated no later than June 1, 1987, and districts operating such schools shall be dissolved and annexed to another district or districts which comply with the minimum standards. This statute also states, “The County Board of Education shall abolish said districts and shall annex the territory of such districts to the receiving district or districts in a geographically contiguous manner.”

Section 9 of Act 445 of 1983, amended by Act 61 (First Extraordinary Session of 1983) and codified as Ark. Stat. Ann. § 80-4609, states:

(c) Between June 1, 1984, and June 1, 1987, any school district may be annexed to one or more adjoining school districts by petitioning the county board of education of the county in which such district is administered to order the annexation. The annexation request may be by resolution of the board of directors of the district or by a petition signed by a majority of the qualified electors in the district. Upon receipt of a request for annexation, the county board of education shall hold a hearing on the request and shall then order the annexation of the district to one or more adjoining school districts. If the county board of education fails to act within sixty (60) days of receipt of a request for annexation, the petitioning district may request the circuit court to issue a writ of mandamus to said county board.

Inasmuch as the Ross Van Ness School Board petitioned for annexation under Act 445, as amended, the Act left the Chicot County Board of Education without discretion to deny the petition of the school board requesting annexation to the adjoining Eudora School District. Section 80-4602(a) and section 80-4609(c) state that the county board of education shall order annexation to adjoining districts. The word “shall” when used in a statute means that the legislature intended mandatory compliance with the statute unless such an interpretation would lead to an absurdity. Arkansas State Highway Commission v. Mabry, 229 Ark. 261, 315 S.W.2d 900 (1958). To require annexation to the adjoining districts is reasonable and practical. Annexation to the adjoining districts, among other things, promotes the sharing of physical plants among the schools, facilitates the objectives of Act 445, limits the distance to be travelled by students, and maintains existing communities.

We affirmed annexation to an adjoining school district across county lines under Act 229 of 1969, the precursor of Act 445 of 1983, in Saline County Board of Education v. Hot Springs Board of Education, 270 Ark. 136, 603 S.W.2d 413 (1980), recognizing that, in matters of education, our constitution (art. 14, § 1, as amended) vests in the legislature the duty and authority to make provision for the establishment, maintenance and support of a common school system in our state.

We, therefore, conclude that once a proper petition is filed with a county board of education under Act 445, annexation to adjoining districts is mandatory and such filings preempt utilization of other enactments, such as § 80-418. Accordingly, the Chicot County Board of Education did not have discretion to deny the Ross Van Ness School Board’s petition.

The appellee raises several issues on cross appeal; however, in light of our holding these points need not be addressed.

Affirmed.

Hays and Purtle, JJ., not participating.


author: George Rose Smith, Justice.

text:
    Albert N. ATTAWAY and His Wife Sarah ATTAWAY v. Hester DAVIS et al.
    85-294
    707 S.W.2d 302
    Supreme Court of Arkansas
    Opinion delivered April 7, 1986

      Williams, Kendall, Schrantz & Wood, P.A., by: Stephen Lee Wood, for appellant.

      James R. Jackson, for appellee.
   George Rose Smith, Justice.

This is a petition filed in the county court by the appellee, Hester Davis, to condemn a right-of-way giving her access from a public road to a landlocked 12-acre tract she bought in 1967. The county court appointed viewers, as required by the statute. Ark. Stat. Ann. § 76-110 (Repl. 1981). The viewers laid out a right-of-way running along the east side of the appellants’ property, from the appellees’ tract to Walnut Road. The circuit court upheld the county court’s order. The Attaways appeal to this court under Rule 29(1 )(c).

No question is raised about the regularity of the proceeding in the county court nor about the constitutionality of the statute. See Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983). For reversal the appellants argue four points.

It is first contended that the circuit court should have sustained the appellants’ plea of limitations. The appellee at first used an old trail across the Attaways’ land and across another neighbor’s land to drive to her property. In 1975 the Attaways put in a gate to obstruct that trail. After that the appellee walked to her land when she wanted to visit it. It is now argued that the five-year statute of limitations is a bar to this proceeding.

The circuit judge correctly concluded that no statute of limitations is applicable, because the appellee’s right to obtain access arises from her status as a landlocked owner and is of a continuing nature. That was in substance the West Virginia court’s reasoning in a similar case, its holding being summed up in this way: “A way of necessity having been created by implication for the benefit of the grantee of the dominant estate or his successors thereafter, it cannot be extinguished so long as the necessity continues to exist.” Berkeley Development Corp. v. Hutzler, 229 S.E.2d 732 (W. Va. 1976).

Another argument is that the appellee already has access to her property, because it has some frontage on Beaver Lake, a navigable watercourse. The statute, Section 76-110, does refer to access to a public road or navigable watercourse, but this law was adopted more than a century ago, in 1871. What the petitioner must show is a reasonable necessity for a road, not an absolute necessity. Houston v. Hanby, 149 Ark. 486, 232 S.W. 930 (1921). Now that travel even for short distances is almost always by motor vehicle, it is not reasonable to require the appellee and those wishing to visit her to make the trip by boat.

The appellants insist that they have been willing since 1975 to permit the appellee to reach her property by using a second trail that crosses their land and then another landowner’s property. Any such use of neighboring property would be permissive and revocable. The appellee is entitled to obtain a permanent right-of-way by proceeding under the statute and paying what the viewers have fixed as reasonable compensation.

A last argument is that the trial court should have admitted into evidence a sworn statement made by A.O. Clark, now deceased, who once owned all the land involved. The statement was apparently offered to show that Clark constructed a road which he intended as a means of access to various parts of the land. There is no showing that his subjective intent was carried into effect by the reservation of easements across the lands he sold. Consequently, his intent as disclosed by an ex parte statement is not material in the present dispute. Furthermore, Clark’s attitude would not be helpful to the Attaways, for in the statement Clark was asked about a controversy he had with another landowner named Miller, about a gate, and he replied:

I always told him if anybody wanted a road, I’d tell them go ahead and make it. If you want a road over there, I’ll give them the land. I would now, if somebody come out there and wanted a road. Fact of the matter you can go out there and ask them fellows building a house. They asked me what I’d take for a road across the corner here so they can get in and out there, and I said I won’t take nothing. You just build your road and it’ll be our road and that’s the way I was with that.

The statement was not admissible, not being subject to cross-examination, nor does it appear that the introduction of the statement would have affected the result in the case.

The appellee’s motion to recover the cost of a supplementary abstract of the record is denied. Much of the added material was unnecessary. In that situation we do not sift the record to decide just what additional costs might be allowed. Ark. Foundry Co. v. Farrell, 238 Ark. 757, 385 S.W.2d 26 (1965).

Affirmed.

Purtle, J., not participating.


text:
    Eva Jean (Shaddock) ETHERIDGE v. Donald Ray SHADDOCK
    85-306
    706 S.W.2d 395
    Supreme Court of Arkansas
    Opinion delivered April 7, 1986

      Kinney & Kinney, for appellant.

      Dan Dane, for appellee.
   George Rose Smith, Justice.

This is a petition by the appellant, now Eva Jean Etheridge, for a change of custody of the parties’ two children. The chancellor denied the petition, finding that there had been no change of conditions calling for the requested modification of the divorce decree. Mrs. Etheridge’s appeal comes to this court under Rule 29(l)(c).

The parties were married in 1971 and divorced in April, 1984. The court granted custody of the children to the father, subject to specified visitation privileges. In the latter part of 1984 Shaddock began living with his first cousin, Anna Frank Delozier, who was getting a divorce. After that divorce was granted the two cousins married in Arkansas, not knowing that such a marriage is prohibited by Arkansas law. Ark. Stat. Ann. § 55-103 (Repl. 1971).

In July, 1985, the present petition was filed, alleging the incestuous marriage as a ground for a change of custody. Shaddock and his cousin promptly had their marriage annulled in Arkansas and made a trip to Texas for the sole purpose of remarrying there, such marriages not being prohibited by Texas law. The appellant’s arguments are presented as three points for reversal, but essentially the single contention is that the appellee’s remarriage was a sufficient basis for a change of custody.

We have no doubt that the Arkansas policy against incest is so strong that we would not recognize the validity of a marriage, even if performed in another state, between very close blood relatives, such as a father and daughter or a brother and sister. The majority view, however, in states forbidding a marriage between first cousins, is that such a marriage does not create “much social alarm,” so that the marriage will be recognized if it was valid by the law of the state in which it took place. Leflar, American Conflicts Law, § 221 (3d ed. 1977).

In the case at bar the chancellor was right in relying on our decision in State v. Graves, 228 Ark. 378, 307 S.W.2d 545 (1957). That case involved a marriage between a 17-year-old boy and a 13-year-old girl, which was then declared by statute to be “absolutely void.” Act 32 of 1941. The young couple, accompanied by the boy’s father and the girl’s parents, had gone to Mississippi for the marriage, where it was valid. After their return to Arkansas a charge of contributing to the delinquency of the minor girl was filed against the boy and against the girl’s parents. The trial court, without a jury, found the defendants not guilty. The State appealed.

In affirming the judgment we emphasized the fact that we had no statute declaring such an underage marriage to be void when performed elsewhere. To the contrary, our policy is ordinarily to give effect to a marriage that was valid in the state where it was performed. The heart of our decision is to be found in the closing paragraph of the majority opinion:

The celebration of a marriage gives rise to many ramifications, including questions of legitimacy, inheritance, property rights, dower and homestead, and causes of action growing out of the marital status. We have no statute which provides that marriages such as the one involved here, celebrated in another state, are void in the State of Arkansas.

We see no reason to elaborate upon a line of reasoning that is still good. The chancellor was right.

Affirmed.

Purtle, J., not participating.


text:
    Johnny Charles BROWN v. A. L. LOCKHART, Director Arkansas Department of Correction
    85-220
    707 S.W.2d 304
    Supreme Court of Arkansas
    Opinion delivered April 7, 1986

      O. Jerome Green, for appellant.

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

The appellee in this case is A.L. Lockhart, Director of the Arkansas Department of Correction. Appellant, Johnny Charles Brown, is an inmate in the Department of Correction. Appellant sought a declaratory judgment stating that appellee had erroneously applied Act 93 of 1977 in determining his parole eligibility date. Appellant also sought a writ of mandamus ordering appellee to make him eligible for parole after serving one-third (Í/3) of his sentence. The lower court denied the relief sought by appellant. We affirm.

Appellant was arrested and charged with the commission of a rape that occurred on May 1,1978. He was found guilty of that charge by a Pulaski County Circuit Court jury and was sentenced to serve thirty-five (35) years in the Arkansas Department of Correction. Appellant had a prior federal conviction for possession of a stolen government check. He committed that crime prior to 1977 and served six (6) months in a federal prison in Missouri with two and one-half {2Vi) years on probation. He was still on probation in connection with the stolen check charge when he committed the rape in May 1978.

Appellee classified appellant as a second offender under Act 93 of 1977. Ark. Stat. Ann. § 43-2828 (2) (Repl. 1977). As a second offender under that act, appellant would have to serve one-half (V2) of his 35 year sentence before becoming eligible for parole. Ark. Stat. Ann. § 43-2829 B. (3) (Repl. 1977).

Ark. Stat. Ann. § 43-2829 B. (3) provides in pertinent part:

B. Persons who commit felonies on and after April 1,1977, and shall be convicted and incarcerated for the same, shall be eligible for release on parole as follows:
(3) Inmates classified as second offenders under this Act upon entering a correctional institution in this State under sentence from a circuit court shall not be eligible for release on parole until a minimum of one-half (W) of their sentence shall have been served, with credit for good time allowances, ....

Appellant committed the rape for which he is currently serving a 35 year sentence in May 1978. Ark. Stat. Ann. § 43-2829 B. (3) governs the calculation of appellant’s parole eligibility date. Accordingly, he must serve a minimum of one-half (V2) of the 35 year sentence, with credit for good time, before he will become eligible for parole.

In an effort to avoid the clear application of Ark. Stat. Ann. § 43-2829 B. (3), appellant first argues that Ark. Stat. Ann. § 43-2829 D. and E. (Repl. 1977) place persons who commit a felony while they are on probation from an earlier sentence in a different category from § 43-2829 B. (3). He cites Bosnick v. Lockhart, 283 Ark. 206, 672 S.W.2d 52, supp. op., 677 S.W.2d 292 (1984) as controlling authority for that proposition. He concludes that he should only be required to serve one-third (í/3), rather than one-half (Í/2), of his sentence before becoming eligible for parole. Appellant’s argument is a house of cards which collapses under scrutiny.

Ark. Stat. Ann. § 43-2829 D. (Repl. 1977) provides in pertinent part:

Any person found guilty of a felony and placed on probation or suspended sentence therefor, who is subsequently found guilty of another felony committed while on probation or suspended sentence, shall be committed to the Department of Correction to serve the remainder of his suspended sentence plus the sentence imposed for the subsequent felony. The sentence imposed for the subsequent felony is to be served consecutively with the remainder of the suspended sentence.

(Emphasis added)

Ark. Stat. Ann. § 43-2829 E. (Repl. 1977) provides:

For parole eligibility purposes, consecutive sentences by one or more courts, or for one or more counts, shall be considered as a single commitment reflecting the cumulative sentence to be served.

(Emphasis added.)

In Bosnick, supra, we stated that “[i]n treating consecutive sentences as a single commitment, we hold that the parole eligibility statute governing the original sentence is the one that should control the cumulative sentence.” (Emphasis added.) Subsections D. and E. and the quoted portion from Bosnick all address situations involving consecutive, cumulative sentences. Using those authorities, appellant attempts to bootstrap himself onto the more lenient parole eligibility statute which was in effect at the time he committed the earlier federal felony. See Ark. Stat. Ann. § 43-2829 A. (Repl. 1977). That is, he argues that under those authorities, his three (3) year sentence on the earlier federal felony conviction and his 35 year sentence on the state felony conviction constitute a single sentence of 38 years, and that under Bosnick, the more lenient parole eligibility statute in effect when he committed the earlier federal felony should apply.

In making that argument, however, appellant relies more upon fiction than upon fact. He completely ignores the fact that his prior felony conviction was in federal court stemming from a federal charge. Arkansas statutes governing parole eligibility do not apply with respect to sentences imposed by federal courts or other state courts outside of Arkansas. Arkansas simply has no authority over sentences imposed in other jurisdictions. Appellant is serving only one sentence in the Arkansas Department of Correction, the 35 year state sentence for rape. That 35 year sentence is not being served consecutively with his sentence on the federal felony conviction. Consequently, Ark. Stat. Ann. § 43-2829 D. and E. and Bosnick, supra, are not applicable to the case at hand. Appellant must serve a minimum of one-half of the 35 year sentence, with credit for good time, before he will become eligible for parole. Ark. Stat. Ann. § 43-2829 B. (3) (Repl. 1977).

For his second point of appeal, appellant argues that it is unconstitutional to apply Act 93 of 1977 in determining his parole eligibility date because it violates the Ex Post Facto Clause. This argument is also without merit.

In Bosnick, supra, we quoted from the United States Supreme Court case of Weaver v. Graham, 450 U.S. 24 (1981):

The ex post facto prohibition forbids the Congress and the States to enact any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” (citations omitted) Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. (Cites omitted)
In accord with these purposes, our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. . . .
[I]t is the effect, not the form, of the law that determines whether it is ex post facto. The critical question is whether the law changes the legal consequences of acts completed before its effective date.

(Emphasis added)

There are two critical elements which must be present for a criminal penal law to be ex post facto: 1) it must be retrospective, that is, it must apply to events occurring before its enactment, and 2) it must disadvantage the offender affected by it. Neither of those two elements is present in the case at hand. Ark. Stat. Ann. § 43-2829 B. (3), effective April 1,1977, has in no way been applied to appellant’s prior federal felony conviction. It was only applied to appellant’s 35 year state felony conviction for rape. The rape was committed in May 1978, long after the statute took effect. There is no ex post facto violation.

Affirmed.

Purtle, J., not participating.