author: Frank Holt, Justice.

text:
    STATE of Arkansas v. Kenneth TUCKER
    CR 79-231
    597 S.W. 2d 584
    Supreme Court of Arkansas
    Opinion delivered April 21, 1980
    Rehearing denied May 19, 1980

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellant.

      Ralph Wilson, Jr., Deputy Public Defender, for appellee.
   Frank Holt, Justice.

The appellee was charged with first degree murder. Following an in-chambers hearing, the court granted appellee’s motion to suppress certain evidence seized pursuant to a warrantless search of an apartment he shared with the victim of the alleged murder. Hence, the state brings this interlocutory appeal. Ark. Rules of Crim. Pro., Rule 36.10. The sole issue presented is whether the appellee had abandoned the premises. The state argues that appellee’s Fourth Amendment rights were not violated by the warrantless search inasmuch as the appellee had effectively abandoned the premises. Thom v. State, 248 Ark. 180, 450 S.W. 2d 550 (1970); and Baggett v. State, 254 Ark. 553, 494 S.W. 2d 717 (1973). Therefore the evidence should not be suppressed.

The courts have consistently held that abandonment is a fact question generally determined by a combination of acts and intent. U.S. v. Alden, 576 F.2d 772 (8th Cir. 1978); Freidman v. U.S., 347 F.2d 697 (8th Cir. 1965), cert. denied 382 U.S. 946, 86 S. Ct. 407, 15 L. Ed. 2d 354 (1965); Morton v. State, 284 Md. 526, 397 A. 2d 1385 (Md. 1979). “The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.” U.S. v. Colbert, 474 F. 2d 174 (5th Cir. 1973). Abandonment “implies a renunciation of any reasonable expectation of privacy.” U.S. v. Alden, supra; U.S. v. Wilson, 472 F.2d 901 (9th Cir. 1973); and Lupro v. State, 603 P. 2d 468 (Alaska 1979). On appeal we make an independent determination, based on the totality of the circumstances, as to whether evidence obtained by means of a warrantless search, as here, should be suppressed, and the trial court’s finding will not be set aside unless it is clearly against the preponderance of the evidence or clearly erroneous. State v. Osborn, 263 Ark. 554, 566 S.W. 2d 139 (1978).

The deceased was a double amputee requiring the use of a wheelchair. He was last seen alive on or about April 2. His body was discovered in an abandoned house in an adjoining county on April 12. In December, 1978, he rented an apartment in an area known as Hobo’s Jungle for $80 a month. According to the appellee, he and the deceased were acquainted. The appellee, at the deceased’s request, moved from a nearby mechanic’s shop, where he had been working and living, into the apartment with the deceased. The understanding was that the appellee could live there in return for taking care of the disabled occupant. Appellee was to wash his clothes, cook his food, tend his sores, and assist him in the use of his wheelchair.

This arrangement continued until about March 19 or 20 when the appellee left and went to a motel in a nearby town. The first part of April he voluntarily entered a local Mental Health Center because he was suffering headaches from a recent injury. On April 10 he was discharged and left the state by bus without advising anyone he was leaving or that he was expecting to return. Before leaving he sold a car which he had purchased from the deceased. He removed his tools which he kept in the car, and carried them with him. He stated that he intended to find employment on a ranch near Tucson, Arizona, and purchased a through bus ticket. After he secured a job his intentions were to return to the apartment in Luxora to pick up his clothes, guns and another car, which he had also recently purchased from the decedent and which was locked up at the apartment. He stated that he had no intentions of abandoning the apartment nor his personal belongings. However, the appellee left the apartment in March knowing that the deceased, who paid the rent, had expressed his intent to leave for Oklahoma to live with one of his girl friends as soon as she could come after him (he understood the deceased would keep the apartment). He had not been at the apartment for almost a month preceding the warrantless search on April 13. The appellee further admitted that he had purchased new clothing consisting of several pairs of blue jeans, several shirts, a jacket and a hat; although his destination was Tucson, he left the bus in Dallas; after several days there in a motel, he met a friend and they rented an apartment; he established his residence in the area, secured employment as a security guard and had worked about one day at the time of his arrest.

The landlord testified that although the rent had not been paid for April, it was regularly paid by the deceased about the first part of the month, and he had never been late before in paying his rent. He described the apartment at the time of the search as smelly, moldy and dark with things scattered about. The officers, who searched the apartment with the landlord’s consent, stated that the apartment was cluttered with dirty dishes and messy, and it appeared that no one had been in the apartment for several days and had been abandoned.

Although the appellant expressed his intent not to abandon the seized items nor the apartment he occupied with the decedent, we are of the view that his conduct and acts plainly belie his stated intentions. We hold, therefore, that the court’s finding of nonabandonment is clearly against the preponderance of the evidence.

Reversed.


source: Caselaw Access Project

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

license: Public Domain

text:
    K. W. DODSON, Executor of the Estate of Lora E. DODSON, Deceased, v. Fred WALTON
    80-38
    597 S.W. 2d 814
    Supreme Court of Arkansas
    Opinion delivered April 21, 1980

      Randall L. Gammill and James M. Thweatt, for appellant.

      Moore & Serio, for appellee.
   Darrell Hickman, Justice.

This probate case comes to us purely on a question of law: the effect of an interlineation or obliteration of a devisee’s name by the testator.

The Probate Court of Prairie County decided that the attempt in this case to obliterate the name of a devisee was abortive, and that according to our cases the devisee’s name had to be restored to the will as originally intended.

The facts are not disputed. Lora E. Dodson died in October, 1977. Her attested typewritten will of October, 1975 was admitted to probate shortly after her death. It is attached as an exhibit to this opinion. She gave all of her property in equal shares to six people; K. W. Dodson, Ruby Van Houten, Geneva Voumard, Fred Walton, Carl Slaughter, and Pauline Lease.

Fred Walton had farmed Mrs. Dodson’s land for twelve years but was not related to her.

According to a stipulation by the parties, sometime after the will was made Mrs. Dodson struck through Walton’s name. The probate judge found as a matter of fact she intended to do this and it was her purpose to exclude Walton from her will. However, the judge found that since the change was not properly executed as required by the cases of Cook v. Jeffett, 169 Ark. 62, 272 S.W. 873 (1925) and Walpole v. Lewis, 254 Ark. 89, 492 S.W. 2d 410 (1973), the attempt was void and Walton was entitled to one-sixth of the estate. The judge was right.

The appellant argues that the judge was wrong and cites Ark. Stat. Ann. § 60-406 as controlling It reads in part:

... a will, or any part thereof, can be revoked only
a. By subsequent will; or
(b) By being burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself or by another person in his presence and by his direction. If such act is done by any person other than the testator, the direction of the testator and the facts of such injury or destruction must be proved by two [2] witnesses who are not benefitted by the revocation of the will. [Emphasis added.]

The appellant emphasizes that the phrase “or any part thereof’ means that Mrs. Dodson could have, and in fact did, lawfully change her will. We held in Cook and Walpole that if a testator obliterated or interlineated a will, thereby changing the testamentary disposition, it is invalid unless attested. (The dissent in Walpole was regarding the majority’s treatment of whether the same rule applies to a holographic will.)

It is undisputed the change was not attested and the obliteration changed the will, in effect making a new testamentary disposition. Instead of each devisee receiving one-sixth, the devisees, other than Walton, would receive one-fifth.

We have then a situation exactly like that dealt with in Cook and Walpole.

In Cook we said:
. . . The rule supported by the weight of authority is, as is stated in the text of Ruling Case Law, supra that ‘when an attempt has been made by interlineation or obliteration to make a different disposition of the estate, the attempt will be abortive if made without the attestation required by law, and the will as originally drawn will be given effect.’ [Emphasis added.]

If the interlineation or obliteration does not change the testamentary disposition provided for in the will, then the change may be valid and the property devised goes by the law of intestacy. That was the case in Cook v. Jeffett, supra, where there was no residuary clause in the will.

In Walpole, the obliteration did make a different disposition of the property and the interlineation or obliteration was declared void.

In both Cook and Walpole we considered the same statutory language that appellant argues is controlling. In Cook, the statute in effect at that time, provides:

No will in writing, except in cases hereinafter mentioned, nor any part thereof, shall be revoked or altered otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation and alteration, and executed with the same formalities with which the will itself was required by law to be executed, or unless such will be burnt, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same by the testator himself, or by some other person, in his presence, by his direction and consent of the testator, or the fact of such destruction, shall be proved by at least two witnesses. [Emphasis added.]

In Walpole we had before us Ark. Stat. Ann. § 60-406 which replaced the statute considered in Cook. It can be readily seen that the statutes are essentially the same so far as the question before us is concerned.

Our interpretation of the law has been the same for at least 55 years and there are good reasons for our decisions in Cook and Walpole. Any other rule would permit anybody to obtain a will and strike through a name thereby defeating the intent of the testator. The books are full of cases where witnesses have declared after the death of someone, or attempted to declare, what the intent of the testator was.

Finding that the probate judge correctly applied the law to the facts in this case, we affirm the judgment.

Affirmed.

Purtle and Stroud, JJ., dissent.

LAST WILL AND TESTAMENT OF LORA E. DODSON

I, Lora E. Dodson, of Route 1, DeValls Bluff, Prairie County, Arkansas, being over the age of twenty-one years and of sound and disposing mind and memory, do hereby make, publish and declare this to be my last will and testament, hereby revoking all wills heretofore made by me at any time.

(1) I direct that I be given suitable burial and that all my just debts be paid as speedily as possible.

(2) All the rest and residue of my estate, whether real, personal or mixed, after payment of my debts and burial expense, I give, bequeath and devise to my hereinafter named executor and direct that he liquidate all of my assets, both real and personal, and divide the proceeds therefrom among the following: K. W. Dodson, Ruby VanHouten, Geneva YmmiarH jCarl Slaughter, and Pauline Lease, share and share alike.

(3) I hereby nominate, constitute and appoint K. W. Dodson as executor of ay estate under this my last will and testament and request that he be not required to make bond; however^ should K. W. Dodson fail to qualify as executor for any reason, then 1 hereby nominate, constitute and appoint Carl-Slaughter as alternate executor of my estate and request that he be not required to make bond.

In Testimony Whereof, I have hereunto set my hand this 14th day of October, 1975, in the presence of Jno. B. Moore, Jr., and Robert G. Serio, who at my request attest the same in my presence.

We, Jno. B. Moore, Jr., and Robert G. Serio, do hereby certify that Lora E. Dodson, the testatrix in the above and foregoing last will and testament, subscribed the same in our'presence, at the time declaring to us that said instrument was her last will and testament; and we, at her request, and in her presence, and in the presence of each other, now sign our names hereto as attesting witnesses.

John I. Purtle, Justice,

dissenting. The majority correctly stated the facts and law in this case; however, from that point on I am in disagreement with the opinion.

I think the first thing to look at is the applicable state law. In this case it is Ark. Stat. Ann. § 60-406 (Repl. 1971) which states in pertinent part as follows:

. . a will, or any part thereof, can be revoked only
a. By subsequent will; or
b. By being . . . obliterated . . . with the intent and for the purpose of revoking the same, by the testator himself . . .

The plain, clear, unambiguous terms of the above statute allow a person to destroy a will or obliterate any part thereof. Since the statute has not been overruled as being contrary to the constitution and has not been repealed by the General Assembly, I am of the impression that it is still in force and effect and should be binding upon this Court.

I would further draw your attention to Ark. Stat. Ann. § 60-408 (Repl. 1971) which reads as follows:

No will or any part thereof which shall be revoked, or which shall be or become invalid, can be revived otherwise than by a reexecution thereof, or by the execution of another will in which the revoked or invalid will or part thereof is incorporated by reference.

The majority has obviously remade the will for the decedent in violation of the above statute. They have revived that part of the will which the decedent legally obliterated with the conscious and willful intent to strike Fred Walton from her will. Neither the trial court, the attorneys, nor a member of this Court doubt that the decedent herself changed this will with the specific intent of leaving Fred Walton out of the will.

I can understand the trial court’s reluctance to uphold the testatrix’s will due to our prior confusing opinions. Those opinions are Cook v. Jeffett, 169 Ark. 62, 272 S.W. 873 (1925); Jeffett v. Cook, 175 Ark. 369, 299 S.W. 389 (1927); and Walpole v. Lewis, 254 Ark. 89, 492 S.W. 2d 410 (1973).

In Cook, supra, two wills were presented for probate, and the matter was heard by a jury. The jury found the testatrix was incompetent at the time of the execution of the second will which had been executed in 1920. They found instead that the 1917 will was properly executed, and the jury admitted it to probate. On appeal the Supreme Court reversed because the trial court had included an improper instruction to the jury. The error in the instruction was in allowing the jury to consider a guardianship appointment which had been improperly issued. The Supreme Court stated:

The cause must, on account of the error in giving the instruction quoted above, be reversed and remanded for a new trial. If the will of 1920 is sustained, it constitutes a revocation of the former will, and that would end the controversy. In view, however, of another trial, it becomes necessary to discuss the effect of the alleged erasures in the will of 1917. ...

Had the Supreme Court let well enough alone and simply sent the matter back for retrial, the present confusion probably would not have resulted.

In any event, the Court went on to quote from 28 R.C.L. 185 on the effect of obliteration of clauses in a will. The Court quoted with approval this statement from R.C.L.:

But except where statutes are in force to which this construction has been or must be given, the obliteration of a will may be partial as well as total, and where any clause is by any means so obliterated that it can no longer be read, it is revoked, and the will must be admitted to probate without it. *** Obviously every erasure of an effective part of a will constitutes a change in the testamentary disposition. Nevertheless the courts, in deciding whether a will must be reattested after the making of the erasures draw a distinction between an erasure which merely indicates an intention to expunge a clause or portion of the will and one which gives a new meaning to the words not erased. In the latter, but not in the former, case a reattestation is required. . . .

With that type of confusing opinion, the case went back for trial in the circuit court, and lo and behold in Jeffett, supra, the jury found both the 1917 and the 1920 wills ineffecttive and that the decedent died intestate. The court had to resolve the matter at the time, and I believe the following language might clarify what happened. At page 374, 175 Ark. 391, 392 of 299 S.W., the Court stated:

Undoubtedly, as above indicated, a testator might revoke his whole will by marking out a material part thereof in such a way as to indicate that his purpose was to revoke the whole will, although it might leave it as legible as it was before. We do mean to say, however, that the manner of marking out or crossing out the clauses of the will in question, when we consider this clause in connection with the rest of the will, plainly shows that it was the intention of the testatrix only to revoke her will in so far as these two clauses were concerned, and this left the rest of the will as it was before. Under the facts as disclosed by the record, it was entitled to probate after the death of the testatrix, and the circuit court erred in submitting to the jury the question of whether the testatrix intended to revoke her whole will.

After reversing the trial court in the Cook and Jeffett cases, supra, this Court apparently realized that it was useless to send the case back again and so stated. The Supreme Court remanded the case back to the circuit court with directions to admit the will of July 17, 1917, to probate and to certify its judgment down to the probate court for further proceedings according to law not inconsistent with the opinion.

It appears to me that the Court was saying in Cook, supra, that in the absence of a statute requiring other interpretations, the quotation from R.C.L. would be applied. Even so, I do not find that the quotation from R.C.L. conflicts with Ark. Stat. Ann. § 60-604 (Repl. 1971). In any event, when Jeffett, supra, came along, it appears to me that the Court recognized its error and explained it away by saying that the will should be admitted to probate with the obliterated parts given the meaning as intended by the testatrix. Had the Court gone further in its quotation from 28 R.C.L. it would have found the following words:

When parts of a will have been effectively erased by a testator they are no more a part of such will than if they had never been written therein.

I think it necessary to touch not too briefly on Walpole, supra, at this point. In that case the probate court had under consideration two typewritten wills, neither of which had been attested, and a holographic will which had a number of interlienations on it. The trial court found the typewritten wills were not valid and admitted the holographic will with the “strike outs.” There were “strike outs” in paragraph 1 and 2.

The Court further held that the “strike outs” in paragraph 1 had the effect of increasing the estate; and for that reason, the attempted revocation was ineffective. The Court held that the “strike outs” in two paragraphs of the second page constituted a revocation of those paragraphs because they eliminated specific bequests, and there was no residuary clause. Thus, we have a situation where the Court restored some “strike outs,” left others intact, and gave them the apparent meaning intended by the testator.

The opinion in Walpole, supra, pretty well reviewed the history of wills in probate in the state of Arkansas but finally got around to the actual effect of a partial revocation by obliteration or “strike outs.” At page 97 of Walpole, 254 Ark., 415-16 of 492 S.W., we stated:

. . . But if the marks made here were made by the testatrix, it seems clear to us that she had no intention of revoking the whole will, and the revocation must be held partial unless the attempted revocation would render the entire will invalid. *** Partial revocation by cancellation by running lines through certain words in a will has been upheld in Arkansas under a statute much like Ark. Stat. Ann. § 60-406, which prohibited revocation except by certain methods. Cook v. Jeffett, supra; Jeffett v. Cook, 175 Ark. 369, 299 S.W. 389. The change in language of the statute is not significant insofar as application in this respect is concerned. *** We also held in the two Jeffett cases that where the whole or part of a will clause is crossed out (by lining out) there may be a revocation, even though the words crossed out remain legible. Furthermore, we said that when cancellation or obliteration of a clause or part of a clause does not affect the remainder of the will such cancellation or obliteration is effective as to such parts.

Aside from the statement made at the beginning of this dissenting opinion that the statute is clear and unambiguous, it appears to me that the cases relied upon by the majority do not stand for the proposition for which they are quoted. This is true because the whole hypothesis of these cases arises from that portion of R.C.L. which indicated that, in the absence of statute, the meaning applied in those cases would be given effect.

I repeat that I do not find a conflict in the cases quoted and Ark. Stat. Ann. § 60-604 (Repl. 1971). It is undisputed that the testatrix intentionally obliterated this one party’s name from her will. In such case the erasure is as effective in removing the erased words or phrases from a will as “if they had never existed.” Even if these cases were construed to hold as the majority states, I believe they should be overruled insofar as they conflict with the statute above-quoted. I would reverse and remand with directions to probate the will as obliterated.

John F. Stroud, Justice, dissenting. I respectfully dissent because I believe the majority has followed prior case law of this court irrespective of clear language of the controlling statute to the contrary. The applicable portion of Ark. Stat. Ann. § 60-406 (Repl. 1971) provides:

. . . a will, or any part thereof, can be revoked only. . .by being . . . obliterated. . . with the intent and for the purpose of revoking the same, by the testator himself . . . (Emphasis added.)

The statute contains no language even suggesting that a partial revocation is valid only. if it does not change the testamentary disposition, nor does Ark. Stat. Ann. § 60-408 (Repl. 1971) dealing with the revival of a partially revoked will. The cases cited in the majority opinion and reaffirmed by this case in effect hold that Ark. Stat. Ann. § 60-406 means what it says only if the will contains no residuary clause or if the partial revocation only changes the executor or some other clause unrelated to a disposition of property. This interpretation virtually nullifies the right of partial revocation by obliteration because the vast majority of wills do properly contain a residuary clause.

The fact that this court has consistently interpreted this statute and its predecessor in this manner for 55 years does not make it right, nor does the worthy motive of preventing fraudulent obliterations following a testator’s death. If, as in this case, proof to the court that the obliteration was intentionally made by the testator is not sufficient protection against fraud, then the statute should be amended by the General Assembly and not by this court. I would reverse the trial court.

       This statute was amended by Act 814 of 1979. The amendment was not enacted in time to have any bearing on this case.


author: Darrell Hickman, Justice.

text:
    Patricia Kozel PARKER v. STATE of Arkansas
    CR 80-26
    597 S.W. 2d 586
    Supreme Court of Arkansas
    Opinion delivered April 21, 1980
    Rehearing denied May 19, 1980

      Paul Johnson, for appellant.

      Steve Clark, Atty. Gen. by: James F. Dowden, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Patricia Kozel Parker was convicted of two counts of theft by deception in the Pulaski County Circuit Court and sentenced to serve ten years in the state penitentiary on each count with the sentences to run concurrently. She had entered a plea of not guilty by reason of mental disease or defect, and the case was tried to the trial judge sitting as a jury.

On appeal she alleges five errors, all of which we find to be without merit and, therefore, we affirm the judgment of the trial court.

The offense with which Patricia Parker was charged was that she pursued a check “kiting” scheme which resulted in a substantial loss to two Pulaski County banks. She makes no argument on appeal that she was not guilty as charged. Her argument is that she was not guilty because of a mental disease or defect. Both the State and Parker submitted expert testimony from psychologists and psychiatrists as to her mental condition. Parker’s defense was that she had a dual personality. Her other personality was known as Pam Lease. It was Pam Lease, not Pat Parker, who conducted the check “kiting” scheme and Pat Parker had no control, knowledge or responsibility for what Pam Lease did. However, Pat Parker would serve the sentence, not Pam Lease. The trial judge found that the defense had failed to prove by a preponderance of the evidence that Patricia Parker was legally insane.

The first allegation of error is that the trial judge refused to permit the appellant Parker to introduce in evidence the results of a sodium amytal interview which was conducted at the University of Arkansas Medical Center in 1977. Dr. Charles Taylor, a psychiatrist who examined Mrs. Parker in 1977 at the Arkansas State Hospital, testified that he reached the conclusion Mrs. Parker was without psychosis. He was asked if he considered the record of the sodium amytal test which was in the State Hospital file when he made his diagnosis. At first Dr. Taylor said he did not consider it and the trial judge ruled that if he had not, it would not be admissible. Then Taylor conceded that he and several others had with some difficulty made out the microfilm record of the sodium amytal analysis.

The argument to us on appeal is that the sodium amytal record should have been admitted into evidence. That argument is misapplied. Dr. Taylor did not have the record before him when he testified; he was not an employee of the Arkansas State Hospital at the time he testified. No serious effort was made to cross-examine Dr. Taylor, an expert witness, as to whether the sodium amytal record affected his judgment. Such an examination would have been permitted under Rule 703, Uniform Rules of Evidence. Also, the appellant would be entitled to admit such evidence to the trier of fact regardless of whether the expert witness relied upon it, Rule 803(4), Uniform Rules of Evidence, subject only to authentication of the record. Apparently, the microfilm record of the test was available to the defense, either through discovery or was in the courtroom at the time the case was tried. However, that microflim record was never proffered in evidence. We have ruled many times that there must be a proffer of the evidence that is improperly excluded for us to find error. Duncan v. State, 263 Ark. 242, 565 S.W. 2d 1 (1978); Goodin v. Farmers Tractor & Equip. Co., 249 Ark. 30, 458 S.W. 2d 419 (1970). See also, Ark. Stat. Ann. § 28-1001, Rule 103(a)(2) (Repl. 1979).

The second allegation of error is that the State called two witnesses in rebuttal, a psychologist and a psychiatrist, and their names were not furnished by the State as required by Rule of Crim. Proc., Rule 17.1(a). That rule does require the prosecuting attorney to disclose to defense counsel the names and addresses of persons he intends to call as witnesses at a trial. However, this does not mean that the prosecuting attorney has to furnish the defense counsel the names of witnesses he calls in rebuttal. It was the burden of the defense in this case to prove legal insanity. Hill v. Lockhart, 516 F. 2d 910 (8th Cir. 1975); Bell v. State, 120 Ark. 530, 180 S.W. 186 (1915); Coates v. State, 50 Ark. 330, 7 S.W. 304 (1887). There was no obligation on the part of the prosecuting attorney to offer any evidence regarding the mental condition of Parker and the two witnesses that were called were indeed rebuttal witnesses to testimony offered by Parker. We held in Perkins v. State, 258 Ark. 201, 523 S.W. 2d 191 (1975) that it was not error for the prosecuting attorney to fail to disclose the name of a rebuttal witness. While that case was decided before the effective date of the Rules of Criminal Procedure, it is sound law. There is no way that a prosecuting attorney can anticipate whom he will call in rebuttal until the defense presents its case. If a witness called in rebuttal is a genuine rebuttal witness, offering evidence to rebut that presented by the defense, not pertaining to evidence the State would be obligated to present in its case in chief, then the State is not required to funish the name of such a witness.

Parker argues that the trial judge improperly held that a psychologist could testify as an expert. Whether a witness qualifies as an expert is a matter to be decided within the sound discretion of a trial court. In absence of abuse of that discretion, we will not reverse the decision of the trial court. Smith v. State, 258 Ark. 601, 528 S.W. 2d 389, cert. denied 425 U.S. 912, 96 S. Ct. 508, 47 L. Ed. 2d 762 (1976); Ray v. Fletcher, 244 Ark. 74, 423 S.W. 2d 865 (1968); and Firemen’s Insurance Co. v. Little, 189 Ark. 640, 74 S.W. 2d 777 (1934). We find no abuse in this case regarding the trial court’s decision.

Dr. George Jackson was called as a rebuttal witness and testified in the abstract regarding the use of sodium amytal as a method of discovering whether one has a multiple personality. Dr. Jackson, a psychiatrist with years of experience, essentially testified contrary to an expert witness called by the defense. The defense argues this was error since Dr. Jackson had not examined Parker. We cannot say the trial judge abused his discretion in permitting this testimony. Certainly, not simply because it was presented in the abstract. His testimony was relevant to a fact in issue.

Finally, the appellant argues that the verdict is contrary to the evidence and that the law and the evidence will not support the verdict. We do not attempt to weigh the evidence or pass on the credibility of the witnesses where the testimony is in conflict. Pope v. State, 262 Ark. 476, 557 S.W. 2d 887 (1977). It was the trial judge’s duty in this case, sitting as a jury, to determine if Parker was legally sane or insane. He decided she was sane and we find substantial evidence to support that finding.

Affirmed.


author: John I. Purtle, Justice. John F. Stroud, Justice,

text:
    David W. BUNN, d/b/a BUNN LUMBER COMPANY v. WEYERHAEUSER COMPANY
    79-314
    598 S.W. 2d 54
    Supreme Court of Arkansas
    Opinion delivered April 21, 1980
    Rehearing denied June 2, 1980

      Ridgeway, Burtness & Switzer, by: Robert D. Ridgeway, for appellant.

      Neal Sullins and Friday, Eldredge & Clark, by: George Pike, Jr., for appellee.
   John I. Purtle, Justice.

Appellee brought suit for collection on an open account to which it had added a monthly “service charge” in the amount of 1.5%. The purchases were on terms of 2% discount if paid within 5 days or net if paid within 30 days. After 30 days the 1.5% monthly “service charge” was added. Some of the added charges were paid; then, appellant refused further payment. Appellant’s defense was that the account was usurious and therefore illegal.

Upon filing suit appellee dropped the service charges and sought only the principal. Appellee also argued that appellant had agreed to pay the balance if the service charges were deleted. The trial court entered a judgment in which it was found there was no agreement to pay interest and the parties had made an agreement for payment of the balance of the account without the added charges. The court further found no usury was involved.

Judgement was for $3,501.37 which represented the principal account balance without the added charges. Appellant brings this appeal from the judgment of the trial court.

Appellant argues the court erred in finding there was no usury and in determining the parties had entered into an agreement whereby the appellant would pay the principal balance if appellee dropped the extra charges. We disagree with the trial court’s findings; and, we conclude that the additional charges in this case are not late charges in the nature of a penalty and that the charges constitute usury.

The facts are not materially in dispute. It is agreed the appellant had been buying from appellee for several years, and the account was current until late 1974 or early 1975. Terms of the sale were minus 2% if paid within 5 days and net if paid within 30 days. All invoices had printed upon them a statement to the effect that a service charge of 1.5% per month would be added to all accounts more than 30 days past due. The first service charge to appellant’s account was for a statement dated February 2, 1975. The invoice was dated November 21, 1974, and due December 21, 1974. Thereafter, when payments were received by appellee, they were credited first to the service charge and then to the principal. In July of 1976, appellee filed suit for $3,501.37 which was the actual balance owed on the purchases. The service charges were not included in the complaint.

Prior to filing suit, appellee had turned the account over to a collection agency. There was some contact between the agency and the appellant concerning collection of the account. Eventually, the collection agency contended appellant’s wife agreed they would pay the balance of the account if appellee would drop the service charges. However, at the trial the wife denied entering into such agreement. The collection agent stated he called appellant and sought to speak to the person in charge of accounts. He was put in contact with Mrs. Bunn who explained why they were not paying the bills. She allegedly asserted it was because of excessive service charges. In any event, the trial court determined this issue in favor of appellee by holding there was an agreement between the parties to pay the debt less the service charges.

All parties agree , if interest in excess of 10% per annum were charged, it would amount to usury thereby terminating the obligation to make any payment. The question presented is essentially whether these “additional charges” were in the nature of an allowable “penalty” or whether they were interest.

It is not possible to state a hard and fast rule which will automatically solve the question of whether a contract is usurious. This is true because no two cases rest upon identical facts, and the facts are frequently the determinative question rather than rules of law. Such factors include the intentions of the parties, the amount of the loan, the dates and places of contracting, and the performance. Other factual questions sometime create what appear to be inconsistent opinions. We examine some of these prior opinions to clarify our position in the present case.

We have recognized that a penalty may serve as a subterfuge for usury. Redbarn Chemicals, Inc. v. Bradshaw, 254 Ark. 557, 494 S.W. 2d 720 (1973). In fact, Redbarn concerned an open account to which a 1% per month charge was subsequently added to the unpaid balance. There we stated we were not persuaded by the argument that the penalty or added charges were the results of unilateral action on the part of the creditor. We further held that the creditor could not retroactively purge the account of the taint of usury by dropping the added charges at the time the suit was filed.

The Constitution of Arkansas (1874), Article 19, § 13 states:

All contracts for a greater rate of interest than ten per centum per annum shall be void, as to the principal and interest, and the General Assembly shall prohibit the same by law, but when no rate of interest is agreed upon the rate shall be six per centum per annum.

Regardless of our decisions which may be interpreted differently, depending on the point of view, we were and are bound by the constitutional provision limiting interest charges to 10%. Whether this provision is wise or practical is not for this court to decide. If and when the people of Arkansas decide to change the provision, the decision will be up to the citizens. Meanwhile, we will continue to hold all contracts in violation of the provision to be void as to both principal and interest.

We look to the uncontradicted testimony of the parties and clearly see that appellee charged 1.5% interest per month on the accounts not paid within 60 days. The fact that appeliee chose to call the added charges a “service charge” does not change the fact that it is a charge for the use of money in the form of an account due them by the appellant.

When an instrument is usurious on its face, the holder has the burden of proving it to be otherwise. Knox v. Goodyear Stores, 252 Ark. 530, 479 S.W. 2d 875 (1972). On the other hand, if it is not usurious on its face, the borrower has the burden of proving it is usurious. Garvin v. Linton, 62 Ark. 370, 35 S.W. 430 (1896). Parol evidence may be used in order to show usury. Heidelberg Southern Sales Co. v. Tudor, 229 Ark. 500, 316 S.W. 2d 716 (1958). Usury must be proved by clear and convincing evidence. Commercial Credit Plan, Inc. v. Chandler, 218 Ark. 966, 239 S.W. 2d 1009 (1951). It is also true that there must be an intent to charge more than 10% to constitute usury. Textron, Inc. v. Whitener, 249 Ark. 57, 458 S.W. 2d 367 (1970).

In the present case, the statements of the appellee on their face show a per annum interest of 18%. The holder never attempted to shoulder the burden of showing this was not the actual charges imposed. To the contrary, it was admitted that the rate charged was accurate. The only attempt to undo the usurious charge was to drop it at the time of the suit. We have held that this cannot be done. Redbarn, supra.

Appellee cites Hayes v. First National Bank, 256 Ark. 328, 507 S.W. 2d 701 (1974) as authority for adding this additional charge. We do not believe Hayes is authority for this case because there we approved a fixed penalty of 5% or $5 on any late monthly payment. It was a one time charge and did not repeat monthly as do the present charges. Even in allowing the one time penalty in Hayes, we cautioned that so-called “penalties” could be declared usurious if it turned out to be a mere cloak for charging more than 10% interest.

The case of Parks v. E. N. Beard Hardwood Lumber, 263 Ark. 501, 565 S.W. 2d 615 (1978) would appear from first impression to be in point with the present case. However, upon inspection we find the only similarity is that in Parks the billing statement indicated a 1% per month additional charge would be made upon late payment. The facts turned out to prove that the charges actually made amounted to less than 10% per annum. Therefore, the case stands for the principle that we do not take the instrument at face value. Instead, we examine the facts of each case to determine whether usury was actually charged or contracted for. In Parks, the facts revealed there was no usurious charge, but in Redbarn and the present case, the added charges really did amount to usury.

This is not a matter of an honest mathematical miscalculation as to the amount of the charges which may be shown to avoid a charge of usury. Cox v. Darragh Company, 227 Ark. 399, 299 S.W. 2d 193 (1957). A lender cannot retroactively purge an account of the taint of usury. Ford Motor Credit Co. v. Catalani, 238 Ark. 561, 383 S.W. 2d 99 (1964).

It does not matter whether the added charges are called a “penalty,” “late charge,” “service charge,” or some other name. We look to the facts of each case to determine whether the additional charges are a cloak for usury; and, if they are, the contract is void.

Appellee also urges there was a novation of the contract which purged the account of usury if it were a usurious contract. We have carefully searched the record and do not find any substantial evidence to support this argument. The representative of appellee offered to remit the service charges if appellant would pay the balance of the account. Appellant’s wife, who is not shown to have, authority to enter into such agreement, responded to the proposal by stating, “Well, let me know if you can.” The representative then contacted appellee to obtain such concession; and, upon recontact with appellant’s wife, she replied that she thought the charges amounted to usury and referred him to her attorney. This did not amount to a novation because there was never an agreement.

The judgment is reversed, and the case is returned to the trial court with direction to dismiss the case.

Fogleman, C.J., and Stroud, J., dissent.

John F. Stroud, Justice,

dissenting. I agree with the majority opinion that there was not substantial evidence to support the finding of the trial court that the parties agreed to purge the account of the late charge, but I respectfully dissent from that opinion because I believe the late charge was not interest and, therefore, not usury.

A monthly charge of 1.5% per month is clearly usurious under the Arkansas law if it is interest, but it just as clearly is not usurious if it is not interest. Labels are not to me controlling with one exception — if both parties to a transaction call or acquiesce to the charge being labeled as “interest,” they should not be able to subsequently deny the charge as “interest.” In all other cases, the facts should be examined to determine the true nature of the charge.

Charges made by a lender to a borrower are traditionally interest charges, but the same is not necessarily true in the case of sales on an open account. In Redbarn Chemicals v. Bradshaw, 254 Ark. 557, 494 S.W. 2d 720 (1973), an open account was rightly voided as being usurious when the seller added a 1% per month “interest” charge. This charge was only added after the account was in arrears for more than two years in an amount of over $10,000, and was in addition to the service charge:

According to the proof, monthly computerized statements, including a service charge, had been sent by Redbarn for a full year before the excess charge was imposed.

The only testimony in this case was that the charges were true late charges added only to delinquent accounts. Mr. Clovis Reid, the regional credit manager of appellee, said Weyerhaeuser did not want to extend credit and that credit was not approved if the buyer did not appear able to pay in full within 30 days. He said appellee added the penalty to encourage prompt payment and that when an account was delinquent for 30 days, collection efforts were begun. This is substantiated in the case of appellant as written demand was made on him by the collection agency for full payment when the account was delinquent, even though the penalty had been paid current. He also testified that his regional office lost money on collections, employing four people during 1978 at a cost of $148,000 attempting to collect $400,000 in delinquent accounts, but that only $57,000 was collected. These figures are hardly consistent with an intent to extend credit and charge interest. If appellant had wished to dispute any of the facts reflected by the testimony of appellee’s employees, he should have presented testimony. Appellant cannot complain now that he did not testify nor call a single witness.

This court has held many times that a late charge is in the nature of a penalty and does not render a transaction usurious, even when provided for in the instrument evidencing it. Phipps-Reynolds Company v. McIlroy Bank & Trust Company, 197 Ark. 621, 124 S.W. 2d 222 (1939); Harris v. Guaranty Financial Corp., 244 Ark. 218, 424 S.W. 2d 355 (1968). The rationale of this tenet was explained in Carney v. Matthewson, 86 Ark. 25, 109 S.W. 1024 (1908):

The true test is: Has the debtor the absolute right to discharge and satisfy the contract at maturity by paying the principal debt and lawful interest? If he has, the contract is not vitiated by providing for the payment of an additional sum.

In this case, appellant not only could have avoided the penalty by timely paying for the merchandise, but he could have received a 2% discount for payment within 5 days.

In Hayes v. First National Bank, 256 Ark. 328, 507 S.W. 2d 701 (1974), a penalty of 5% or $5 was added to any late monthly payment, and the court held the charge to not be usurious. The majority attempts to distinguish the case by saying the charge was not recurring but was just a one time charge. If the borrower quit paying as appellant did in this case, the charge would be one time, but that one time would occur 12 times a year. See also Harris v. Guaranty Financial Corp., supra, where a contract was held not usurious even though a 5% late charge was assessed on the monthly payments after default.

Appellant has alleged a usurious contract and the burden is upon one asserting usury to show that the transaction is usurious. Nineteen Corp. v. Guaranty Financial Corp., 246 Ark. 400, 483 S.W. 2d 685 (1969); Brown v. Central Ark. Prod. Credit Assn., 256 Ark. 804, 510 S.W. 2d 571 (1974). As appellant introduced no testimony in the trial court, the testimony of the employees of appellee stands unrebutted. Because of the highly penal nature of our usury law, the plainest principles of justice require that it be clearly shown that the transaction is usurious. Ark. Real Estate Co. v. Buhler, 247 Ark. 582, 447 S.W. 2d 126 (1969). The wrongful act of usury will never be imputed to the parties, and it will not be inferred when the opposite conclusion can be reasonably and fairly reached. Briggs v. Steele, 91 Ark. 458, 121 S.W. 754 (1909).

The judgment of the trial court sitting as a jury need only be supported by substantial evidence. Holland v. C. T. Doan Buick Co., 228 Ark. 340, 307 S.W. 2d 538 (1957); Fields v. Sugar, 251 Ark. 1062, 476 S.W. 2d 814 (1972). I believe there was substantial evidence to support the judgment of the trial court and I would affirm the decision.

Fogleman, C.J., joins in this dissent.


author: John I. Purtle, Justice.

text:
    Emzie L. ELLIOTT v. STATE of Arkansas
    CR 80-28
    597 S.W. 2d 76
    Supreme Court of Arkansas
    Opinion delivered April 21, 1980
    Appellant, pro se.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

On August 10, 1979, the trial court entered its order, supported by written findings of fact and conclusions of law, denying appellant’s motion for post conviction relief pursuant to Rule 37, Arkansas Rules of Criminal Procedure. The court rejected appellant’s request that the Department of Correction be forced to credit him with good time from the date of his arrest up to the time of the hearing on the motion. On appeal appellant contends it was error for the court to refuse to order the Department of Correction to credit him with good time from the date of his arrest. We agree with the action taken by the trial court.

The facts reveal that appellant was arrested in Jackson, Michigan, on an Arkansas Fugitive warrant, on August 19, 1976. He was being held on an uttering and publishing charge by the state of Michigan at that time. On September 17, 1976, he entered a plea of guilty to the Michigan charges and was extradited to Arkansas on March 24, 1977. On June 1, 1977, he pled guilty to the Arkansas charge of aggravated robbery and was sentenced to 20 years in the Department of Correction.

On June 22, 1978, the trial court entered an order giving the appellant credit for time served commencing on the date of his arrest, August 19, 1976, and extending through the date of the hearing. On June 23, 1978, appellant was incarcerated in the Arkansas Department of Correction and filed his Rule 37 Petition on July 25, 1979. The petition was denied, without a hearing, on August 10, 1979.

Ark. Stat. Ann. § 41-904 (Repl. 1977) states:

If a defendant is held in custody for conduct that results in a sentence to imprisonment, the court shall credit the time spent in custody against the sentence.

It appears to us the court was very generous in allowing the appellant credit for all of the time after he was first arrested on the Arkansas warrant, because it could have been argued that at least a portion of his custody in Michigan was not attributable to the Arkansas charge but was based on the separate Michigan sentence. Certainly, nothing in the denial of the Rule 37 Petition was prejudicial regarding the credit for time spent in custody. He was given credit for every day of confinement after his arrest.

The other statute involved, Ark. Stat. Ann. § 46-120 (Repl. 1977), concerns meritorious good time allowance. The statute states:

From the effective date (April 2, 1971) of this Act (§§ 46-120 — 46-120.5), an inmate may be entitled to a reduction, to be known as “Meritorious Good Time” from his maximum term and/or parole eligibility date of up to thirty (30) days for each month served in one (1) of the institutions maintained by the Department of Correction.

This statute is directed to the Department of Correction which has the authority to carry out the provisions of this statute.

Ark. Stat. Ann. § 46-120.1 (Repl. 1977) provides:

“Meritorious Good Time” shall be awarded under rules and regulations promulgated by the Board, approved by the Governor, and administered by the Commissioner, subject to the provisions of this Act (§§ 46-120 — 46-120.5), for good discipline, good behavior, work practices and job responsibilities within the institution. . . .

Upon reading these statutes, it is obvious the Department of Correction, not the trial courts, has the responsibility to credit the good time. In the case of Stevens v. State, 262 Ark. 216, 555 S.W. 2d 229 (1977), we dealt with a situation very similar to the present case where we held that the exclusive jurisdiction of custody, control, and supervision of all persons in the penitentiary is vested with the Arkansas Department of Correction. The slight changes in the law relating to this subject do not substantially affect the results in this case. Therefore, the trial court had no authority, under the circumstances presented here, to take any action concerning the “meritorious good time.”

If the Department of Correction is not following the law, the appellant may have a cause of action against them; but, there are no grounds for considering it in the present case.

Affirmed.


author: John F. Stroud, Justice. John A. Fogleman, Justice.

text:
    James T. BRAMLETT v. Benjamin SELMAN
    80-35
    597 S.W.2d 80
    Supreme Court of Arkansas
    Opinion delivered April 21, 1980

      Ginger Atkinson, for appellant.

      Henry & Duckett, by: David Henry, for appellee.
   John F. Stroud, Justice.

Appellee filed suit against his homosexual companion to require appellant to convey the title to a residence purchased with funds furnished by appellee. Appellant contended the purchase money was a gift from his paramour, but the trial court accepted appellee’s position that the title was held by appellant as constructive trustee for appellee. We agree with the Chancellor.

In early 1977 appellant and appellee became involved in a homosexual relationship and appellee left his wife and children and moved in with appellant in his apartment. Shortly thereafter divorce proceedings were instituted between appellee and his wife. In April of 1977 appellee opened an account in a local savings and loan institution in appellant’s name and deposited a total of $7,000.00. These are the only material facts on which the parties agree. Appellant asserts that the appellee “lavished” him with a variety of gifts, including the $7,000.00 used to purchase a residence on Spring Street which both parties occupied after the purchase was closed. However, appellee claims the money was not a gift, but was put into appellant’s account for the sole purpose of having appellant purchase the Spring Street property in his name for the benefit of appellee. Appellee testified that there was a clear understanding of the scheme to conceal the acquisition of the property from his wife due to their pending divorce action. According to appellee, appellant had orally agreed to convey title to the property to him once the divorce was concluded. Various improvements were made by both parties to the structure on the property, although the evidence tended to show that the vast majority of them were either paid for by appellee and his father or were performed by appellee and his parents.

Appellee testified that he eventually felt guilty about hiding the property from his wife and, after discussing it with his attorney, had his attorney inform her of the situation. His testimony is uncontroverted that by way of settlement, he paid his wife $2,000 for her dower interest in the Spring Street property. Near the end of December of 1977, appellant and appellee had a falling out and a dispute ensued over the ownership of the property. Appellant claimed they “separated” because of appellee’s jealousy, but appellee said the quarrel was over appellant’s refusal to convey the property to him as previously agreed. At any rate, appellee moved out of the Spring Street residence, and on March 1, 1978, brought this action requesting the court to settle the ownership of certain personal property, to require appellant to vacate the Spring Street property, and compel appellant to convey the property to him. After hearing all the arguments and evidence offered by each party, the chancellor found that appellant held title to the property as constructive trustee for appellee, ordered appellant to vacate the premises, and ordered him to convey title to the property to appellee. The chancellor also settled the ownership of certain personal property, but ordered appellee to reimburse appellant in the amount of $1,624.48 for his expenses incurred as constructive trustee. From the decision of the chancellor appellant brings this appeal, alleging five points for reversal.

Appellant first contends that the trial court erred in admitting parol evidence of an oral agreement concerning an interest in land as it is in violation of the statute of frauds. Title 38 of Ark. Stat. Ann. (1947) is entitled Statute of Frauds and includes Ark. Stat. Ann. §§ 38-101 — 38-107 (Repl. 1962). Two of these statutes are particularly relevant to this action. Ark. Stat. Ann. § 38-101 provides, in pertinent part:

No action shall be brought ... to charge any person upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them; . . . unless the agreement, promise, or contract, upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing, and signed by the party to be charged therewith, or signed by some other person by him thereunto properly authorized.

Ark. Stat. Ann. § 38-106 provides:

All declarations of creations of trusts or confidences of any lands or tenements shall be manifested and proven by some writing signed by the party who is or shall be by law enabled to declare such trusts, or by his last will in writing, or else they shall be void; and all grants and assignments of any trusts or confidences shall be in writing signed by the party granting or assigning the same, or by his last will in writing, or else they shall be void.

These statutes would ordinarily defeat the type of contract and trust alleged by appellee in this case, as both fail to meet the writing requirement of these statutes. However, where one of the parties alleges the existence of an implied or constructive trust, as here, it is well-settled that parol evidence is admissible to establish its existence. Bray v. Timms, 162 Ark. 247, 258 S.W. 338 (1924); Harbour v. Harbour, 207 Ark. 551, 181 S.W. 2d 805 (1944). In Walker v. Biddle, 225 Ark. 654, 284 S.W. 2d 840 (1955), the court held that the statute of frauds by its own terms does not apply to a constructive trust, and cited Ark. Stat. Ann. § 38-107 (Repl. 1962), which provides:

Where any conveyance shall be made of any lands or tenements, by which a trust or confidence may arise or result by implication of law, such trust or confidence shall not be affected by anything contained in this act [§§ 38-104 — 38-107].

In this case, as appellee alleged the existence of a constructive trust, it was proper for the trial court to admit parol evidence of an oral promise to determine if a constructive trust should be imposed by a court of equity.

Appellant next contends that the trial court erred in finding that appellee had met the burden of proof required to remove an oral agreement from the statute of frauds. To remove an oral contract from the statute of frauds, it is necessary that the quantum of proof be clear and convincing both as to the making of the oral contract and its performance. Pfeifer v. Raper, 253 Ark. 438, 486 S.W. 2d 524 (1972); Huspeth v. Thomas, 214 Ark. 347, 216 S.W. 2d 389 (1949). For the trial court to impose a constructive trust on the Spring Street property, the Chancellor must have found that appellee had proven the existence and part performance of the oral agreement by clear and convincing evidence. The trial court occupied a better position than this court to observe the demeanor of the witnesses and unless his findings are clearly against the preponderance of the evidence, they will not be disturbed. Digby v. Digby, 263 Ark. 813, 567 S.W. 2d 290 (1978); Minton & Simpson v. McGowan, 256 Ark. 726, 510 S.W. 2d 272 (1974); Arkansas Rules of Civil Procedure, Rule 52(a). In cases such as this where the testimony on behalf of each party is almost totally inconsistent, we must defer to the trial court’s judgment as to the credibility of the witnesses. Whitmore v. State, 263 Ark. 419, 565 S.W. 2d 133 (1978); Johnson v. State, 249 Ark. 268, 459 S.W. 2d 56 (1970).

The trial court was undoubtedly persuaded by the acts of the parties and the witnesses which were consistent with the verbal agreement alleged by appellee. The payment of $2,000 by appellee to his wife in settlement of her dower interest in the Spring Street property was absurd unless appellee believed he was the “real” owner of the property. It is also highly unlikely that appellee’s father would have paid for materials and done substantial remodeling work without pay to a house not owned by his son. Finally, the offer of settlement made by appellant through his attorney to appellee’s attorney prior to the filing of suit by appellee cannot be reconciled with the claim of appellant that the property was truly a gift to him. The letter offer under date of January 11, 1978, was that appellant would deed the property to appellee upon reimbursement of approximately $2,-000 in expenses plus a payment of $1,500 for “labor and profit.” It is inconceivable that appellant would be willing to accept $3,500 for property he claimed he owned, when the cost of the house and the cost of improvements exceeded $15,-500. Therefore, we cannot say that the trial court erred in finding that appellee had met the burden of proof required to remove an oral agreement from the statute of frauds.

We combine appellant’s third and fourth points where he alleges that the trial court erred in finding the existence of a constructive trust. He contends that the evidence was insufficient as there was no proof of positive fraud which appellant contends is required for a constructive trust. Such is not the case, as proof of fraud is not necessary for the imposition of a constructive trust. This court has often held that although a grantee’s oral promise to hold the title to land for a third person is unenforceable, a constructive trust will be imposed if it is shown by clear, cogent and convincing evidence that the grantee’s promise was intentionally fraudulent or that the parties were in a confidential relationship. Thom v. Geyer, 254 Ark. 716, 497 S.W. 2d 689 (1973); Robertson v. Robertson, 229 Ark. 649, 317 S.W. 2d 272 (1958); Walker v. Biddle, supra. The evidence in this case is not supportive of a finding that appellant took title to the property with an intent to permanently deprive appellee of the property. To the contrary, the evidence indicates that no such intent was evident until several months after the deed to appellant had been executed. The trial court undoubtedly believed the testimony of appellee that the dispute arose in December of 1977 when appellant refused to convey the property to appellee pursuant to their oral agreement. Therefore, for a constructive trust to be imposed by the court of equity in this case, it must rest not upon fraud but upon the existence of a confidential relationship.

Appellant argues, and the dissenting opinion in this case suggests, that the trial court should be reversed because appellee was attempting to defraud his wife and, therefore, his hands were unclean. The latest decision by this court on this point was rendered in 1979 in Henry & Mullen v. Goodwin & Attaway, 266 Ark. 95, 583 S.W. 2d 29 (1979). In that case the owner of real property conveyed the property to a niece to become eligible for supplemental Social Security income, but nevertheless, a constructive trust was imposed. At the time of trial the fraud perpetrated on the Social Security office was unresolved, but in this case appellee, prior to trial, of his own volition and conscience, abated the fraud on his wife by voluntarily informing her of the deception and paying her for her dower interest in the property. In the Henry case, the court pointed out that a resulting trust does not arise if the policy against permitting unjust enrichment of the transferee is outweighed by the policy against giving relief to a person who has entered into an illegal transaction, but nevertheless held that in balancing the equities, the property owner’s conduct was not so reprehensible that she should lose the property. The balancing of equities in this case would likewise justify the chancellor in finding that appellee should not be deprived of property purchased with his funds and remodeled at his expense.

Finally, appellant claims that the trial court erred in holding as a matter of law that a fiduciary relationship existed between the parties based on their homosexual involvement. The trial court did not hold that all homosexual relationships as a matter of law involve a confidential relationship. Whether or not a confidential relationship exists depends upon the actual relationship between the parties. It is not surprising that this court held in Walker v. Biddle, supra, that “The relation between brother and sister is, in the absence of estrangement or other unusual circumstances, one of confidence; ...” The relation between aunt and niece would usually be less close, but in Henry & Mullen v. Goodwin & Attaway, supra, a confidential relationship was found to exist when the niece lived near her aunt and visited with her on a daily basis. There the court adopted a definition of the term from the Restatement Second, Trusts, “A confidential relation exists between two persons when one has gained the confidence of the other, and purports to act or advise with the other’s interest in mind.” In the case on appeal, appellee clearly demonstrated confidence in appellant, and appellant certainly purported to act with appellee’s interest in mind at the time he purchased the property. A kinship is not necessary for a confidential relationship, as is apparent in Kingrey v. Wilson, 227 Ark. 690, 301 S.W. 2d 23 (1957). There, a constructive trust was imposed when grantee was not related to the grantor, but was merely a friend and neighbor.

In the case now on appeal, the facts were sufficiently clear, cogent and convincing for the chancellor to find that a confidential relation existed between appellant and appellee when the undisputed testimony indicated they had been homosexual lovers for approximately a year and had lived together for most of that year. The dissenting opinion cites an Arkansas case which should be examined inasmuch as it squares with the facts of this case on several points. Kingrey v. Wilson, supra. Land given to a wife by her husband was conveyed by the wife to friends to hold for her during a divorce action so that her husband could not take it. In spite of this and in spite of the fact that the grantees were not relatives but merely close, personal friends and neighbors, the court imposed a constructive trust. The deed was set aside because grantees, standing in a confidential relationship to the grantor, made an oral promise and refused to perform their oral promise. The grantees attempted to cross-examine the grantor and asked if she was living in an adulterous relationship, but the trial court denied the question. On appeal, this court indicated the case would have been affirmed even if she had been allowed to answer and had answered in the affirmative.

All homosexual involvements are not as a matter of law confidential relationships sufficient to support a constructive trust, but a court of equity should not deny relief to a person merely because he is a homosexual. This is the view adopted by the Georgia Supreme Court in 1979 in Weekes v. Gay, 243 Ga. 784, 256 S.E. 2d 901 (Ga. 1979). There, a house shared by homosexuals was destroyed by fire and the court imposed an implied trust on the proceeds. The proceeds were deemed held for the benefit of the party who furnished the purchase money even though his name did not appear on the deed nor was he an insured under the insurance policy. Irrespective of the homosexual relationship, the court noted that equity will not allow a windfall to one party when the beneficial interest should flow to the other party. It can be said no clearer than it was said last year by this court in Henry, supra:

Equity, however, will impose a constructive trust when a grantee standing in a confidential relation to the grantor orally promises to hold land for the grantor and later refuses to perform his promise.

Affirmed.

Fogleman, C.J., and Hickman and Purtle, JJ., dissent.

John A. Fogleman, Justice.

I cannot join in the majority’s declaration of a constructive trust based upon a confidential relation between these two homosexual lovers. It is clear that, if appellee was not simply lavishing gifts upon his newly found lover, as appellant contends, the taking of title to property involved was an attempt by appellee to defraud his wife, whom he had abandoned to live with his lover. If the relationship between appellee and appellant were husband and wife, appellee would not be permitted to extricate himself from a situation that was of his own voluntary creation, even though appellant was a party to the fraud, because appellee’s hands were unclean. McClure v. McClure, 220 Ark. 312, 247 S.W. 2d 466. Why should he be able to do so because of a homosexual relationship? This is not a case in which appellant has come into equity to seek to enforce his advantage of his participation in the fraud, so such cases as Sliman v. Moore, 198 Ark. 734, 131 S.W. 2d 1 have no application.

The evidence to engraft an implied (either resulting or constructive) trust upon an absolute deed must be clear, unequivocal and convincing. McClure v. McClure, supra. It must be full, clear and conclusive, or of so positive a character as to leave no doubt of fact and of such clearness and certainty of purpose as to leave no well-founded doubt upon the subject. Mulligan v. Payne, 232 Ark. 922, 341 S.W. 2d 53. Although the majority recognizes that the evidence must be clear and convincing, it does not say that it is unequivocal. Neither does it say that the evidence put the facts or the subject beyond doubt; nor do I think it could. Time will not permit me to develop my disagreement with the majority’s and the chancellor’s point of view on that question, but it is clear to me that appellee has failed to meet his burden upon important elements required to establish a constructive trust, which is one form of an implied trust. For example, there is no evidence that appellant made a false and fraudulent promise at the time title was put in appellant to convey the property to appellee, with the intent at that time to defraud appellee. This is important because the imposition of a constructive trust is totally dependent upon proof of a confidential relation. White v. White, 254 Ark. 257, 493 S.W. 2d 133; Thom v. Geyer, 254 Ark. 716, 497 S.W. 2d 689. The violation of a verbal promise by appellant to convey the property to appellee, when the situation which caused the title to be put in appellant no longer obtained, cannot be the basis of a constructive trust. Patton v. Randolph, 197 Ark. 653, 124 S.W. 2d 823. In S & M Oil Co. v. Mosley, 227 Ark. 250, 297 S.W. 2d 926, we said:

From our cases, and from authorities generally, the following rules — applicable to this case — are clearly recognized: (a) a constructive trust in lands — as distinguished from an express trust — may be shown to have been established by parol, but such evidence must be clear, cogent and convincing; and (b) in the absence of family relationship or confidential relationship, the evidence required to establish a constructive trust must show that the original promise to reconvey was made with a fraudulent intention; and the mere failure to reconvey — standing alone — is not sufficient to establish the fraudulent intent.

See also, Robertson v. Robertson, 229 Ark. 649, 317 S.W. 2d 272.

It must be remembered that, even under appellee’s theory, title was not placed in appellant to accomplish some legitimate purpose for appellee’s benefit such as was shown in Davidson v. Sanders, 235 Ark. 161, 357 S.W. 2d 510, where the title was placed in one individual to enable him to obtain a loan to pay off an indebtedness against the property conveyed to him. The lack of proof of an intentionally false and fraudulent verbal promise to reconvey by appellant is important at the time he took title, because the imposition of a constructive trust must be based upon that fraud or proof of a confidential relation.

There are some relationships that are presumed to be confidential as a matter of law. Among them are attorney and client, guardian and ward, trustee and cestui que trust. See Hindman v. O’Connor, 54 Ark. 627, 16 S.W. 1052, 13 LRA 490; Palmer v. Foley, 305 Pa. 169, 157 A. 474 (1931); In re Null’s Estate, 302 Pa. 64, 153 A. 137 (1930). Kinship is not such a relation. Jones v. Gachot, 217 Ark. 462, 230 S.W. 2d 937. We have taken the relationship of brother and sister, in the absence of estrangement or other unusual circumstances, to be one of confidence, in Walker v. Biddle, 225 Ark. 654, 284 S.W. 2d 840, cited and relied upon by the majority. Is the court now equating the relationship of homosexual lovers with that of brother and sister?

As I view the matter, it was incumbent upon appellee to prove that appellant was dominant and appellee was servient in the relation and that appellee was influenced to act as he did by appellant or that the relationship was such that appellee relied upon appellant for advice. In re Estate of Button, 459 Pa. 234, 328 A. 2d 480 (1974); Leedom v. Palmer, 274 Pa. 22, 117 A. 410 (1922); Ringer v. Finfrock, 340 Pa. 458, 17 A. 2d 348 (1941); In re Pyewell's Estate, 334 Pa. 154, 5 A. 2d 123 (1939); In re Estate of McClatchy, 433 Pa. 232, 249 A. 2d 320 (1969); Snyder v. Hammer, 180 Md. 690, 23 A. 2d 653 (1942); Bass v. Smith, 189 Md. 461, 56 A. 2d 800 (Ct. App., 1948); Croker v. Clegg, 123 N.J. Eq. 332, 197 A. 13 (1938); In re Stroming’s Will, 12 N. J. Super. 217, 79 A. 2d 492 (1951); Peoples First National Bank & Trust Co. v. Ratajski, 399 Pa. 419, 160 A. 2d 451 (1960); Silver v. Silver, 421 Pa. 533, 219 A. 2d 659 (1966); Foster v. Schmitt, 429 Pa. 102, 239 A. 2d 471 (1968); Merritt v. Easterly, 226 Ia. 514, 284 N.W. 397 (1939); Jensen v. Phippen, 225 Ia. 302, 280 N.W. 528 (1938); Suchy v. Hajicek, 364 Ill. 502, 4 N.E. 2d 836 (1936); Hunter v. Hunter, 152 Ind. App. 365, 283 N.E. 2d 775 (1972); Anderson v. Lybeck, 15 Ill. 2d 227, 154 N.E. 2d 259 (1958). See Kingrey v. Wilson, 227 Ark. 690, 301 S.W. 2d 23. It exists where one occupies a superior position over the other, intellectually, physically, governmentally, or morally, with the opportunity to use that superiority to the other’s disadvantage. Union Trust Co. of New Castle v. Cwynar, 388 Pa. 644, 131 A. 2d 133 (1957).

I have read and reread the decree in this case and I find no reference to either a confidential relationship or a homosexual one. As I read the decree, the chancellor found a trust ex maleficio. He found specifically that appellant took title as constructive trustee to hold until appellee’s divorce had become final. This is the only significance of appellant’s intent at the time of the conveyance to him.

The majority professes that it is not saying that a confidential relation exists in all homosexual involvements sufficient to establish a constructive trust but finds evidence sufficient to support the constructive trust imposed by the trial court, in spite of its statement that the facts were sufficiently clear, cogent and convincing for the chancellor to find that a confidential relation existed between appellant and appellee when the undisputed testimony indicated that they had been homosexual lovers for approximately a year and lived together for most of that year. What distinguishes this relationship from any other homosexual one? The majority does not say, and I cannot find anything in the record. In its reliance upon Henry v. Goodwin, 266 Ark. 95, 583 S.W. 2d 29 (1979), it overlooks a critical factor in upholding the evidence of a confidential relation upon which a constructive trust may be based. There we recognized that the relation exists when one has gained the confidence of the other and purports to act or advise with the other’s interest in mind. It must also be remembered, that unlike the situation in Henry, the title to the real property involved here was not conveyed by appellee to appellant with the specific understanding that appellant would reconvey it.

There is not a scintilla of evidence that appellant influenced or advised appellee to act as he did in the premises. To the contrary, even appellee says that the whole transaction was his fraudulent idea.

Under the circumstances existing here, there would have been a presumption that appellee had made a gift to appellant if appellee had been the husband and appellant the wife. See Jones v. Jones, 118 Ark. 146, 175 S.W. 520; Harrison v. Knott, 219 Ark. 565, 243 S.W. 2d 642, 28 ALR 2d 405; Glover v. Glover, 153 Ark. 167, 240 S.W. 716. Why should there not have been such a presumption here? And what rebutted that presumption, if it applied?

It has been held that a confidential relation to support a constructive trust cannot be based merely upon evidence of a meretricious relationship, which is not of long standing and in which the parties do not hold themselves out as husband and wife, particularly when the husband is still married to another woman. See Adams v. Jensen-Thomas, 18 Wash. App. 757, 571 P. 2d 958 (1977). Why should the relation here be treated differently? More importantly, we have spoken on the matter of confidential relation where paramours were involved. In Shipp v. Bell & Ross Enterprises, Inc., 256 Ark. 89, 505 S.W. 2d 509, we said:

To support her counterclaim, Mrs. Shipp testified that she and Bell were paramours and that the relationship continued through this litigation until after she filed her counterclaim. Because of this relationship she trusted Bell when he told her she would get what was legally hers and that he would take care of her. ***
* * *
Mrs. Shipp here argues that there was a special trust and confidence existing between her and Bell and that under the rule stated in Gillespie v. Holland, 40 Ark. 28 (1882), her gift to Bell was prima facie void. The general rule, however, is that where special trust and confidence exist between the parties to a deed, the gift to the party holding the dominant position is prima facie void. Thus, before she would be entitled to invoke the prima facie rule she must show that Bell was holding the dominant position. On that issue we cannot say that the evidence preponderates in Mrs. Shipp’s favor. It certainly cannot be inferred from the illicit relationship.

Why should homosexual paramours be treated differently?

I confess that I am as bewildered by the majority’s statement that I suggest that the case should be reversed because appellee’s hands were unclean due to his confessed attempt to defraud his wife as I am by the majority’s efforts to find a confidential relationship in the homosexual relationship. I would point out, however, that a trust ex maleficio, not one based upon a confidential relationship between homosexuals, was the basis of the chancellor’s holding. Although I do not think the dirt on appellant’s hands is without significance, I think the majority has found a confidential relationship without any support for its findings.

I would reverse the decree and leave the parties where they were before the courts intervened.

I am authorized to state that Mr. Justice Hickman and Mr. Justice Purtle join in this opinion.


author: John F. Stroud, Justice.

text:
    Randall DIXON v. STATE of Arkansas
    CR 80-42
    597 S.W. 2d 77
    Supreme Court of Arkansas
    Opinion delivered April 21, 1980

      McArthur & Lassiter, P.A., by: William C. McArthur, for appellant.

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

Appellant was charged with battery in the first degree on January 17, 1979, in the beating of his fiancee, Rebecca Newman. When she eventually died 12 days later, the charge was amended to murder in the second degree. On September 18, 1979, after entering a plea of not guilty, appellant was tried before a jury, found guilty of manslaughter, and sentenced to ten years imprisonment. Alleging two points for reversal, appellant brings this appeal. Finding no error, we affirm.

The appellant and Becky had lived together for several months, but on January 16, 1979, they made a decision to marry in the near future. They went to a bar in Little Rock that evening to celebrate and were joined by appellant’s sister and other friends. When Becky asked an acquaintance to dance with her, the appellant became jealous and went home. Eventually at Becky’s request, appellant’s sister called him and he agreed to return. When he entered and saw Becky again dancing with the other man, he charged onto the dance floor and knocked her down. One of the waitresses said he hit her with his fist and it could be heard all over the bar. After appellant was ejected, appellant’s sister left and took Becky home with her. After a couple of phone calls between appellant and Becky, he showed up around midnight and proceeded to slap her around. He cursed her, knocked her down several times and one time she hit her head on the coffee table, and another time may have hit her head on a stereo. Appellant’s 13 year old niece and her girl friend were at the apartment and testified that Becky had bruises all over her face, that her eyes were black, her jaws were swollen and her nose was bleeding. The friend said she heard Becky beg appellant to stop hitting her, and she called the police at Becky’s request. At one point Becky passed out and appellant told his sister to call an ambulance. She revived while he was giving her mouth to mouth resuscitation, and the ambulance was called off.

Appellant left and took Becky home with him about 1:30 or 2:00 on the morning of January 17th. At 7:30 he called Becky’s place of work and told them Becky had the flu and would not be in for a couple of days. In his written statement, appellant said he went back to sleep and woke up about 10:00 or 10:30 when Becky wet the bed. When he could not rouse her, he called an ambulance. In response to a question from the ambulance attendant, he said he last hit her about 5:00 in the morning. Becky never regained consciousness, but with the aid of a respirator remained alive until January 29, 1979. The Chief Medical Examiner for the State of Arkansas performed an autopsy and testified that she died of cranial cerebral injuries. In addition to three large bruises on her chest, two large bruises on her lower back, and internal bleeding of her eyes, she had bleeding in the muscle which covers the skull. He explained that the contusion of the brain caused it to swell, shutting off the blood supply, and that her brain was dead for at least 10 days before her death.

Appellant first contends that the trial court erred in restricting the testimony of appellant’s expert witness concerning the cause of damage to the deceased’s brain. It was stipulated that Dr. Douglas A. Stevens was an expert in the field of clinical psychology, having a Ph.D. in psychology, but he admitted that he was not a psychiatrist or medical doctor. The prosecuting attorney objected to the testimony of Dr. Stevens that the contrecoup phenomenon is when one side of the head is struck, damage to the brain can occur on the opposite side when the brain bounces off the inside of the skull. Appellant’s attorney insisted that the proffered testimony was not in the field of medicine, but in the field of neuropsychiatry. The trial court held that Dr. Stevens had not qualified himself at trial as an expert in that field, but certainly nothing prevented him from attempting to. demonstrate those qualifications following the court’s ruling. The testimony was apparently offered in an effort to show that the fatal blow may have been from striking the coffee table, rather than from the fist directly, on the theory that the jury might find the injuries accidental. It is well-settled that the determination of the qualifications of an expert witness lies within the discretion of the trial court, and his decision will not be reversed unless that discretion has been abused. U.S. Fidelity v. Smith, 252 Ark. 556, 480 S.W. 2d 129 (1972). We find no abuse of discretion here.

Appellant also contends that the evidence was insufficient to support the verdict of guilty as to the offense of manslaughter. Ark. Stat. Ann. § 41-1504 (Repl. 1977) provides, in part:

(1) A person commits manslaughter if:
(a) he causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse.
(c) he recklessly causes the death of another person.

Ark. Stat. Ann. § 41-1503 (1) (Repl. 1977) provides:

(1) A person commits murder in the second degree if:
(a) with the purpose of causing the death of another person, he causes the death of any person; or
(b) he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life; or
(c) with the purpose of causing serious physical injury to another person, he causes the death of any person.

As the jury found appellant guilty of manslaughter, they must have found either that appellant caused the death of his fiancee under circumstances that would be murder except for extreme emotional disturbance on his part or that he recklessly caused her death. Appellant maintains that his unstable emotional and physical condition at the time of the beating rendered him incapable of forming any of the culpable mental states required by § 41-1503 (1) or § 41-1504 (1) (a) and (c). These statutes require, in the various subsections, conduct of a purposeful, knowing or reckless nature. Ark. Stat. Ann. § 41-203 (Repl. 1977) defines these mental states as follows:

(1) “Purposely.” A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.
(2) “Knowingly.” A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.
(3) “Recklessly.” A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

On appellate review, it is firmly established that we consider only that evidence which is most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Milburn v. State, 262 Ark. 267, 555 S.W. 2d 946 (1977); Pope v. State, 262 Ark. 476, 557 S.W. 2d 887 (1977). We think the evidence was more than sufficient to support a conviction for manslaughter under either § 41-1504 (1) (a) or § 41-1504 (1) (c). The fact that appellant beat Becky intermittently over a period of several hours evidenced his intent to cause her serious physical injury. Appellant told a member of the ambulance crew that the last time she had been hit was around 5:00 a.m., which was well after appellant had beaten her into unconsciousness at his sister’s apartment. The fact that he asked his sister to call an ambulance at that point indicated his awareness that she had already suffered very serious physical damage; nonetheless, he continued to beat her after they went home. In the alternative, there was certainly an abundance of evidence to indicate that he recklessly caused Becky’s death. Accordingly, we affirm the jury’s verdict of guilty as to the offense of manslaughter.

Affirmed.