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

text:
    Cleven COX, Bennie TATE, Doyal KASINGER, O.W. MOODY, Individually and as Members of a Class Too Numerous to Mention v. COMMISSIONERS OF MAYNARD FIRE IMPROVEMENT DISTRICT NO. 1, Charles LEVELLE, Pres.
    85-137
    697 S.W.2d 104
    Supreme Court of Arkansas
    Opinion delivered October 14, 1985

      Wm. David Mullen, for appellant.

      Murrey L. Grider, for appellee.
   Robert H. Dudley, Justice.

The Quorum Court of Randolph County established by ordinance the Maynard Fire Improvement District No. 1. The ordinance was passed pursuant to a statute providing for the establishment of fire protection districts in rural areas. The appellant sought a declaratory judgment that the ordinance was void and an injunction against the collection of taxes by the district. The Chancellor upheld the ordinance, but held that taxes could not be collected until there is an assessment of benefits. We reverse and hold that the ordinance is void because it is contrary to state law in two material aspects.

The first paragraph of the state statute under which the district was created provides:

Area and scope of fire protection services.
Fire protection districts established under the provisions of this Act [§§ 20-923 — 20-943] shall cover only such territory within the county, or within the defined district, outside the corporate limits of cities and towns. Provided, however, that if any city or town within such district does not have an organized or volunteer fire department, and desires to be included within the fire protection district, upon the adoption of an ordinance therefor by the governing body of the city or town, addressed to the County Judge and Quorum Court, the area covered by the fire protection district may be extended to provide fire protection within the city limits of said city or town, by ordinance adopted by the Quorum Court. [Emphasis added.]

Ark. Stat. Ann. § 20-925 (Supp. 1985).

The statute clearly provides that a fire protection district shall not include a city which already has a volunteer fire department. The City of Maynard is included in the fire improvement district even though it has a volunteer fire department.

The appellees contend that the existing volunteer fire department does not prevent the inclusion of the city within the district because the volunteer fire department is not financed or owned by the city. The answer to that argument need not be long. The quoted part of the statute excludes cities which have fire departments, regardless of whether they finance or own the department. The purpose of the statute is to prevent duplication of fire districts and to provide fire protection in rural areas where none exists. See Ark. Stat. Ann. § 20-925, second paragraph, and emergency clause to the act. The Chancellor erred in approving the formation of a district that includes a city which already has a volunteer fire department.

In addition, the ordinance, as presently enacted, violates the state statute concerning the method of assessing benefits. No county is authorized to pass an ordinance contrary to the general law of the State. The applicable statute, Ark. Stat. Ann. § 20-932 (Supp. 1985), provides in pertinent part:

Assessment of benefits to district property.
As soon as is practical after its establishment, the Board shall prepare plans for providing fire protection services and for acquiring the property and equipment necessary to carry out the purposes of the district. They shall thereupon appoint three (3) assessors to assess the annual benefits which will accrue to the real property within the district from the providing of fire protection services and shall fix their compensation.

The county ordinance does not provide for an assessment of benefits and a corresponding tax. Instead, it provides a flat tax rate of $50.00 for each business, $25.00 for each house, and $12.50 for each mobile home, regardless of valuation. The ordinance is clearly contrary to state law and must be voided.

The Chancellor attempted to sustain the ordinance by ordering that assessments be made with the flat tax rates to serve as maximum tax rates. That order cannot stand. The ordinance is plainly contrary to state law, and a court cannot re-write an ordinance so that it becomes acceptable. Such an order amounts to a judicial intrusion upon the legislative prerogative and violates the constitutional doctrine of separation of powers. Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W.2d 74 (1971); City of Batesville v. Grace, 259 Ark. 493, 534 S.W.2d 224 (1976).

Reversed.

Purtle, J., not participating.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring.

I agree with the result. Neither parties question whether the charge in this case is a fee or a tax. The difference is legally critical. I think we erred in Vandiver v. Washington County, 274 Ark. 561, 628 S.W.2d 1 (1982) in that regard.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Patricia Marie GALLIA v. STATE of Arkansas
    CR 85-128
    697 S.W.2d 108
    Supreme Court of Arkansas
    Opinion delivered October 14, 1985

      William M. Cromwell, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

The question presented by this appeal, one of first impression, is whether a mobile home is a vehicle within the meaning of Ark. Stat. Ann. § 82-2629(b)(4) (Supp. 1983) and therefore subject to forfeiture if used to transport a controlled substance, in this case methamphetamine. The trial court held that a mobile home is a vehicle, but we agree with appellant that that finding is clearly erroneous and must be reversed.

Appellant, Patricia Gallia, was charged with manufacturing and possessing a controlled substance with intent to deliver. While the charges were pending the state petitioned to forfeit a mobile home belonging to Ms. Gallia where the police had seized various chemicals, laboratory equipment, and methamphetamine under a search warrant. Following a hearing the circuit judge ordered the mobile home forfeited.

Ark. Stat. Ann. § 82-2629(b)(4) (Supp. 1983) renders subject to forfeiture

all conveyances, including aircraft, vehicles or vessels which are used or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in paragraph (1) or (2)

Our search might well end there, as it seems evident on even a hurried reading of the statute that a mobile home, in conventional use, does not fit the description of a conveyance, including aircraft, vehicle or vessel.

We find only two relevant cases, both cited by the appellant. In United States v. One 1953 Model Glider Trailer, 120 F.Supp. 504 (N.C. 1954), the district court held that a mobile home sitting on cement blocks and used as a residence was not being used as a conveyance so as to subject it to forfeiture. The mobile home had been in place some five months and had utilities attached. The district judge had these comments:

The mere fact that it could be moved from place to place with proper towing equipment, to me, does not alter the situation, since at the time of seizure the whole character of the trailer had been converted from vehicle or conveyant, to a home and permanent abode.

The other case, decided earlier, is Biasotti v. Clarke, 51 F.Supp. 608 (D.R.I. 1943). The district judge in Biasotti reached an opposite conclusion, finding that a mobile home was subject to forfeiture as a conveyance. The facts are distinguishable, however, as the judge in the Glider case noted, because the mobile home in Biasotti had been used over some five years to transport opium through many states.

The facts of this case more closely resemble the Glider case. There is no proof this mobile home had ever been used as a conveyance of a controlled substance. How long it had been in place, we are not told, but it is shown to have been resting on concrete blocks, skirted all around, tied down and with wheels removed. In short, it was a stationary as such objects can be made stationary. It was incapable of moving under its own power and could be moved only by an external means, after considerable preparation.

We point out that a forfeiture is an in rem civil proceeding, independent of any criminal charges which may be pending, to be decided on a preponderance of the evidence. Limon v. State, 285 Ark. 166, 685 S.W.2d 515 (1985). On appeal, we reverse the findings of the trial court only if clearly against the preponderance of the evidence. ARCP 52(a).

If we were permitted a liberal interpretation of the statute, it might be possible to construe the words “conveyances, aircraft, vehicles and vessels” as including mobile homes. But that is not the case. Forfeitures, being penal, have never been favorites of the law and we are obliged to construe the wording narrowly. 36 Am.Jur.2d, Forfeitures and Penalties, § 8. Had the legislature intended mobile homes to be subject to forfeiture, we think it would have said so.

The order is reversed.

Purtle, J., not participating.


text:
    James MADISON v. STATE of Arkansas
    CR 85-120
    697 S.W.2d 106
    Supreme Court of Arkansas
    Opinion delivered October 14, 1985

      William R. Simpson, Jr., Public Defender, and Arthur L. Allen, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

James Madison was charged with first degree murder in the fatal stabbing of Alma Picknell, and with attempted first degree murder in the stabbing of Lewis Campbell, who came to her aid. Rejecting the defense of not guilty by reason of mental disease or defect, the jury returned a verdict of guilty of first degree murder, and guilty of a lesser charge of attempted second degree murder. Consecutive sentences of life and ten years were imposed, from which Madison brings this appeal.

The single allegation of error is the trial court erred in refusing to give an instruction requested by the defense which would have told the jury the procedure followed when a defendant is acquitted by reason of mental disease or defect. In substance the instruction explained that the defendant would be committed to the Director of the State Hospital and if the Director determined the defendant was still affected by mental disease or defect and presented a risk of danger to himself or to others, the Director would institute commitment proceedings in probate court; further, that if the probate court found the defendant was still affected it would commit the defendant to the appropriate institution, otherwise, it would order him discharged or released on such conditions as the court might impose.

Appellant maintains that while jurors may not have an official interest in what happens when an individual is found not guilty by reason of mental disease or defect, without some knowledge of the sort provided in appellant’s requested instruction the jury is more likely to yield to the urge to protect society by sentencing the defendant to prison, the only course it sees open to it. Appellant cites only Lyles v. United States, 254 F.2d 725 (D.C. Cir. 1957), where the court reasoned that a jury knows a verdict of not guilty means the defendant goes free and a verdict of guilty means he becomes subject to such punishment as the court may impose but that a verdict of not guilty by reason of insanity has no commonly understood meaning. In fact, the court noted the meaning of such a verdict was not even clear under the law until Congress enacted a statute on the subject two years earlier.

Appellant recognizes that our cases do not agree with the argument he advances. Nevertheless he submits those cases should be overturned. We have reexamined the principle in the light of his argument and we adhere to the point of view already expressed in our decisions, beginning with Campbell v. State, 216 Ark. 57, 228 S.W.2d 470 (1950), followed by Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981); Dean v. State, 272 Ark. 448, 615 S. W.2d 354 (1981); Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981) and most recently in Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1984).

We are persuaded by several considerations: first, because it is not for the jury to concern itself with procedures for dealing with someone who is adjudged to be not guilty because of mental disease, any more than it is for the jury to concern itself with parole practices in fixing penalties. Both of these factors are extraneous to the function of the jury and we have said the jury should not be influenced by either in reaching its verdict. See Curry v. State, supra.

Second, to interject the issue of the disposition of the defendant after trial would accomplish nothing so much as to distract the jury from its primary responsibility. That is the view expressed by the Court of Appeals for the 5th Circuit in rejecting Lyles v. United States:

. . . Matters relating to the disposition of the defendant tend to draw the attention of the jury away from their chief function as sole judges of the facts, open the door to compromise verdicts and to confuse the issue or issues to be decided. In a case of this nature what they are to decide was whether the defendant was guilty or not. See Pope v. United States, 298 F2d 507, 508 (CA 5th Cir. 1962).

While we acknowledge some authority to the contrary, we think a clear majority of other states rejects Lyles v. United States, supra, and opposes giving such an instruction. See cases cited in 11 ALR 3rd 737, 1985 Supplement at p. 6, Whartons Criminal Procedure, 12th Edition, § 548, and generally cases cited in West’s General Digest, Criminal Law, § 790, Vol. 1981, et seq.

Concerning the Lyles decision, we note that three members of the court disagreed with the majority and remained opposed to the instruction five years later when McDonald v. United States, 312 F.2d 847 (D.C.Cir. 1962), was decided. Moreover, we think it may have been easier in 1957 to assume, as the Lyles majority did, that the public generally is uninformed as to the disposition of someone acquitted by reason of insanity, particularly in light of the suggestion by the court that even the law on the subject was unclear until Congress settled the issue in 1955. But that was thirty years ago and we are unwilling to abandon our precedents on the basis of a pure assumption that the public as a whole is ill-informed on the subject, an arguable point at best. That premise has not gone unchallenged elsewhere. See Vermont v. Hood, 187 A.2d 499 (S.Ct. Vt. 1963).

Finally, soon after Curry v. State, supra, was decided we were asked by the appellant in Couch v. State, supra, to change our rule. We declined to do so, saying:

Appellant recognizes that we recently addressed this identical argument and approved the trial judge’s refusal to give the proposed instruction. [Curry v. State, supra]. However, he urges that we overturn Curry. We do have the power to overrule an opinion previously rendered. Gregg v. Road Improvement Dist. No. 2, 169 Ark. 671, 277 S.W. 515 (1925). However, there should be settled rules for the proper administration of justice and we will adhere to our previous decisions unless some injury or injustice will result. Rhea v. State, 104 Ark. 162, 147 S.W. 463 (1912). In Curry, supra, we carefully considered the sharp divisions of authority on this issue and reexamined our previous decisions as stated in Campbell v. State, 216 Ark. 878, 228 S.W.2d 470 (1950). We see no injustice in our decision and adhere to that position.

The judgment is affirmed.

Purtle, J., not participating.


author: David Newbern, Justice. Steele Hays, Justice,

text:
    Bruce Lamont BAILEY v. STATE of Arkansas
    CR 85-76
    697 S.W.2d 110
    Supreme Court of Arkansas
    Opinion delivered October 14, 1985

      William R. Simpson, Jr., Public Defender, Jerome T. Kearney, Deputy Public Defender, by: Carolyn P. Baker, for appellant.

      Steve Clark, Att’y Gen., by: Connie C. Griffin, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant was convicted of rape. The only issue on appeal is whether a mistrial should have been declared because of a statement, made by the prosecutor in closing argument, which the appellant says was a reference to his failure to testify in his defense. We find the appellant’s position to be correct, and thus the case is reversed.

The testimony of the prosecuting witness, Doris Watson, was that the appellant took her to his room, bound her and raped her several times over a 24-hour period. She said when she at last escaped she went to the house of a friend who went to get a sister of Ms. Watson.

In his closing argument, the prosecutor said:

The only thing that we’ve heard here today about which occurred in that room is from Doris Watson. She’s the only person. These two ladies that were called, they weren’t in that room.

Counsel for the appellant immediately moved for a mistrial which was denied.

The impropriety of a reference to failure of an accused to testify has been recognized by this court since at least as early as Lee v. State, 73 Ark. 148, 83 S.W. 916 (1904). While the principal contemporary case on protection of the U.S. constitutional right to remain silent is Chapman v. California, 386 U.S. 18 (1967), we have cases prior to 1967 which reached the same result, some of which are based simply on Ark. Stat. Ann. § 43-2016 (Repl. 1977) which guarantees that no presumption may be created by an accused’s failure to testify. For example, in Evans and Foust v. State, 221 Ark. 793, 255 S.W.2d 967 (1953), we said, quoting Bridgman v. State, 170 Ark. 709, 280 S.W. 982 (1926):

This court is committed to the rule that under . . . [§ 43-2016]. . .it is improper and presumptively prejudicial for the prosecuting attorney to call the attention of the jury to the failure of the accused to testify.

While we need not rely on Chapman v. California, supra, the position we established long ago has been reinforced by that case.

The reference in Evans and Foust v. State, supra, was fairly direct, but we have been equally unwilling to allow veiled references. In Adams v. State, 263 Ark. 536, 566 S.W.2d 263 (1978), we reversed a conviction because the prosecutor said in closing argument:

To convict him, you don’t have to disbelieve any part of their case, because what did the defense, how many witnesses did the defense put on for your consideration?

Chief Justice Harris and Justice Fogleman dissented in that case. Their dissenting opinions point out, citing many cases, that a prosecutor may refer to the fact that the state’s evidence is undisputed. The majority opinion, however, distinguished those cases from remarks which seem meant to refer to the defendant’s failure personally to dispute the state’s case as opposed to the failure of the defense to present any witness or evidence to dispute the state’s case. The case before us now falls into the category described by the majority view in Adams v. State, supra. See also McCroskey v. State, 266 Ark. 806, 586 S.W.2d 1 (Ark. App. 1979). By saying “[t]he only thing that we’ve heard here today about which happened in that room is from Doris Watson,” he must have been referring to the appellant’s failure to testify. No evidence showed the other women had been in the room. Even had there been any such evidence, the damage occurred when the statement was made. It could not be repaired, and a mistrial should have been declared.

Reversed.

Purtle, J., not participating.

Hays, J., dissents.

Steele Hays, Justice,

dissenting.

Doris Watson testified that appellant, Bruce Lamont Bailey, a former boyfriend, accosted her as she was walking near her home. He forced her into a room at the Oasis Motel, where he kept her bound and gagged for twenty-four hours. She was beaten, whipped with an electrical cord and raped repeatedly. The testimony of a physician and nurse who examined her after she escaped established the presence of male sperm in her vagina, “numerous whelps and bruises” on her body and a “significant amount” of trauma to the external vagina. She was fifteen years old.

The appellant did not testify. The theory of the defense was that the witness had gone willingly into the motel room with Bailey. The defense called two witnesses who testified they had seen Bailey and Doris Watson near the motel — one said they were arm in arm, the other said nothing out of the ordinary occurred.

The majority opinion does not suggest that the prosecutor made a direct reference to the appellant’s having declined to testify, when he said:

The only thing that we’ve heard here today about which occurred in that room is from Doris Watson. She’s the only person. These two ladies that were called, they weren’t in that room.

but finds that a “veiled reference” was present in the remarks, thus bringing them within the ambit of Adams v. State, 263 Ark. 536, 566 S.W.2d 263 (1978), where the prosecutor said:

To convict him, you don’t have to disbelieve any part of their case, because what did the defense, how many witnesses did the defense put on for your consideration?

I submit that finding the dividing line between “veiled references” that are permissible as opposed to those that are not is too subjective, as almost any remark which alludes to the weakness of the defendant’s case might be seen as a “veiled reference” where the defendant has not testified or called other witnesses. The problem is more than theoretical, and the absence of an objective standard is creating difficulties for both appellate courts and doubtless for prosecutors and trial judges as well. See dissenting opinions of Chief Justice Harris and Justice Fogleman, Adams v. State, supra, and the majority and dissenting opinions in Phillips v. State, 12 Ark. App. 319, 676 S.W.2d 753 (1984).

Obviously, a better test is needed than the ad hoc basis now being applied. I believe the prosecutor should be able to refer to the weakness of the defendant’s case, or to the absence of contradictions in the state’s proof, so long as he or she does not point to the fact that the defendant has not testified, or imply that inferences may be drawn from the defendant’s silence. Where the remarks are marginal and fall within what might be called “veiled references,” we would do better to rely on the trial judge to gauge the impact of the remarks. See Perry v. State, infra.

Moreover, I fail to see how the remarks in this case can be seen as drawing attention unduly to the defendant not having testified. The remarks are little more than a fair comment on the evidence. What is the difference in the prosecutor saying, “the only thing we’ve heard here today about what occurred in that room is from Doris Watson,” and, “Doris Watson’s testimony that she was raped, beaten and kept prisoner is uncontradicted and undenied,” which we have upheld, (Moore, Frazier & Davidson v. State, 244 Ark. 1197, 429 S.W.2d 122 (1968); Harris v. State, 260 Ark. 646, 543 S.W.2d 459 (1976)) or, “what explanation has [the defendant] made?,” which we upheld in Cascio v. State, 213 Ark. 418, 210 S.W.2d 897 (1948); or “Doris Watson’s testimony is undisputed and undenied and he (the defendant) cannot deny it,” (upheld in Davis v. State, 96 Ark. 7, 130 S.W. 547 (1910)); or, “You haven’t heard one person who was there testify that [Bruce Lamont Bailey] didn’t do this. The people that were there all told you that [Bruce Lamont Bailey]. . . ,” which was upheld in Phillips v. State, supra.

The majority says the prosecutor “must have been referring to the appellant’s failure to testify,” when he said the only thing we’ve heard here today about what occurred in that room is from Doris Watson. But that ignores testimony that the appellant’s brother, Willie Foreman, was also in the room during the time Doris Watson says she was held there against her will. That surely negates the majority’s conclusion that the remarks drew attention to the appellant’s failure to testify. Some courts have distinguished similar remarks when other witnesses could have been called by the defense. See State v. Brown, 132 N.W.2d 840 (S.Ct. S.D. 1965).

We have often said that a mistrial is a drastic remedy — one that should be resorted to only when the prejudice is so manifestly clear that the trial cannot injustice continue. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984); Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983). These remarks hardly rise to that level, indeed, they are less pointed than many this court has approved over the years. See cases cited in Chief Justice Harris’ dissent, Adams v. State, supra, and Phillips v. State, supra. In Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982), we recognized that the trial court’s ability to judge the character of these issues was superior to our own:

We are not in a position to know how the statement was delivered, with what inflections and emphasis, and are not able to see how the jury perceived it. The trial court has a broad latitude of discretion in supervising and controlling arguments of counsel and its decisions are not subject to reversal unless there is a manifest abuse of that discretion.

I believe the remarks in the case fall in that category and we should leave the trial judge’s discretion undisturbed.


author: David Newbern, Justice.

text:
    CITY OF STAR CITY v. James D. SHEPHERD
    CR 85-129
    697 S.W.2d 113
    Supreme Court of Arkansas
    Opinion delivered October 14, 1985

      Odell C. Carter, for appellant.

      Trafford & Bray, for appellee.
   David Newbern, Justice.

Charges were filed against the appellee in Star City Municipal Court. The charges were dismissed because the judge found the officer who brought the charges was not a properly certified police officer. The city appealed the dismissal to the circuit court which dismissed the appeal. We affirm.

While we know the arguments presented to the circuit judge because the motion to dismiss and response are contained in the record, we have no idea why he dismissed the case. The record does not contain a report of any colloquy between counsel and the judge, nor was there a request that the judge state findings of fact or conclusions of law. See Ark. R. Civ. P. 52(a). His order merely recites the dismissal. At this point we could end our opinion by saying the appellant had the burden of presenting a record, and abstract, from which we could discern the error of which it complains. S. D. Leasing, Inc. v. RNF Corporation, 278 Ark. 530, 647 S.W.2d 447 (1983); King v. Yountz, 278 Ark. 91, 643 S.W.2d 542 (1982); Ark. R. App. P. 6(b). Some further discussion is appropriate, however, in view of the unusual nature of this case.

The appellant did not want the circuit court to retry Shepherd. Rather, it asked that the appeal be treated as a declaratory judgment case in which the issue would be whether the police officer was properly certified. The city thus attempted to convert an appeal of the municipal court dismissal into a declaratory judgment action. For reasons upon which we need not speculate, the city seemed to want to have the issue of the policeman’s certification determined in an action to which Shepherd remained a party. That was improper. The criminal action against Shepherd was over. The City did not seek to retry Shepherd, and yet an appeal to the circuit court requires a trial de novo. Ark. Stat. Ann. § 44-509 (Repl. 1977). An original declaratory judgment action could have been pursued by the city, but Shepherd would not have been an appropriate party. Once the case against Shepherd had been dismissed in the municipal court, he was no longer a person who could be claimed to have any interest which would be affected by the declaration. See Ark. Stat. Ann. § 34-2510 (Repl. 1962).

Affirmed.

Purtle, J., not participating.


author: Robert G. Serio, Special Justice. Steele Hays, Justice,

text:
    William Patrick FLYNN v. McILROY BANK & TRUST COMPANY
    85-61
    697 S.W.2d 114
    Supreme Court of Arkansas
    Opinion delivered October 14, 1985

      Jeff Staton, for appellant.

      Everett & Whitlock, by: John C. Everett, and Pettus & Johnson, by; E. Lamar Pettus, for appellee.
   Robert G. Serio, Special Justice.

Appellant filed suit against appellee in the Washington County Circuit Court wherein he alleged the appellee committed slander and intentionally interfered with his contract of employment. At the close of the appellant’s case the court directed a verdict in favor of the appellee on the intentional interference cause of action. The jury held against the appellant on the slander count.

On appeal the appellant argues five points for reversal. He argues; (1) the court erred in directing a verdict on the matter of interference with an existing contractual relationship, (2) the court erred in its evidentiary treatment of a memorandum, (3) the court erred in refusing to allow the appellant to impeach a witness with a prior inconsistent statement under oath, (4) the court erred in refusing to submit the issue of punitive damages to the jury, and (5) the court erred in refusing to allow a witness to be questioned about advice given by the witness to appellee.

The facts revealed that appellant’s bank account at appellee bank in Fayetteville was being used in a fraudulent check cashing scheme. Appellee notified appellant’s employer, Systematics, Inc., of the possible involvement of appellant. Appellant was fired from his job. Appellant contended he was fired because appellee had stated to Systematics that appellant’s signature on his signature card at the bank matched the signature on the forged checks. Appellee denied having made such a statement and alleged that appellant was fired for other reasons.

The crux of appellant’s case centered on a document prepared by John Wyatt, a supervisor for Systematics. The document contained information related to him by Don Hahn, another supervisor for Systematics. The information came from Mr. Hahn’s conversations with appellee.

At the discovery deposition of Mr. Hahn, he was shown the document and after reviewing it he indicated that the statements in the document were correct. The key statement in the document prepared by Systematics was:

McIlroy was upset because evidence seemed to suggest that one of our employees, Mr. Pat Flynn, was involved in this scheme. In support of their allegations, McIlroy said:
1. That the endorsements on the fraudulent checks matched the signature card on file for Pay Flynn’s account which had only recently been opened.

At trial Mr. Hahn first testified that he could not remember exactly the conversation between him and appellee’s employees. He finally testified that no employee of appellee stated to him that the signature on appellant’s signature card matched the signatures on the forged checks.

Appellant attempted to introduce the document at trial on several occasions under various exceptions to the hearsay rule. The trial court denied the introduction each time.

We find reversible error only in Point III of the appellant’s argument. The appellant argues that the trial court erred in refusing to allow appellant to impeach Mr. Hahn with the statement in his deposition in which he had indicated that the statements in the document were correct. The appellant contends that the document is a prior inconsistent statement made by Mr. Hahn. The appellee objected to the use of Mr. Hahn’s deposition on the basis that it referred to the document that had previously been refused as evidence. The court sustained appellee’s objection.

We believe the use of the deposition was proper to show a prior inconsistent statement. We find that the document prepared by Mr. Wyatt was approved by Mr. Hahn and became part of his testimony at his. deposition. Mr. Hahn read the document before it was typed, made no corrections in it, and then placed it in appellant’s employee file.

In United States v. Rogers, 549 F.2d 490, (8th Cir. 1976), the Eighth Circuit Court of Appeals ruled that “[a] statement’s inconsistency may be determined from the circumstances and is not limited to cases in which diametrically opposite assertions have been made.” Judge Weinstein also endorses the view that a prior statement should be admitted “whenever a reasonable man could infer on comparing the whole effect of the two statements that they have been produced by inconsistent beliefs.” 4 Weinstein’s Evidence § 801(d)(1)(A) [01]. See Perroni, Impeachment of One’s Own Witness by Prior Inconsistent Statements Under the Federal and Arkansas Rules of Evidence, 1 UALR L.J. 277 (1978). Hahn’s deposition testimony affords considerable indication that the fact in question was different from his trial testimony.

Hahn’s prior statement would formerly have been admissible only for the purpose of impeachment. That limitation, however, has been removed by URE 801(d)(1), which provides that a prior statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with his testimony. In civil cases this rule effectively allows all prior inconsistent statements to be introduced as substantive evidence in addition to any impeachment value they may have. Hawthorne v. Davis, 268 Ark. 131, 594 S.W.2d 844 (1980); David v. State, 269 Ark. 498, 601 S.W.2d 864 (1980); Reynolds, Arkansas Uniform Rules of Evidence, p. 157. We hold that appellant should have been allowed the impeach the witness with his deposition and that the jury should have been allowed to consider the prior inconsistent statement as substantive evidence of the fact in dispute.

As to Point II, we find that the witness Don Hahn had sufficient recollection of his conversations with appellee so that under the circumstances of this case the document in question was not required to refresh his memory.

We next consider Point I of appellant’s argument. In the past we have applied various standards of evidence necessary to support a directed verdict. In Downey v. Jones Mechanical Contractors, 273 Ark. 207, 619 S.W.2d 614 (1981) we sought to resolve the confusion as to the standard of evidence necessary to sustain a directed verdict. In Downey, supra at 209, we pointed out that the “no evidence” and the “slight evidence” standards should not be applied; rather, the “any [substantial] evidence” standard should be applied in determining if the directed verdict is proper. In Downey, supra at 211, we also cited with approval the following standard that we have previously set forth in Jackson v. McCuiston, 247 Ark. 862, 448 S.W.2d 33 (1969):

[I]n resolving the propriety of the directed verdict, we must of course take the view of the evidence most favorable to the plaintiffs and see if there is any substantial evidence on which the jury could have based a finding of negligence. (Emphasis Supplied.)

Substantial evidence has been defined as meaning evidence that would enable the jury to reach its conclusion without having to resort to speculation or conjecture, Brown v. State, 278 Ark. 604 at 605, 648 S.W.2d 67 (1983).

In light of the above evidentiary holding in this case, we reverse the previously entered directed verdict and remand the intentional interference with an existing contractual relation cause of action. On remand the trial judge will consider all the evidence presented to determine if there is any substantial evidence to support a claim.

We find no merit in the appellant’s argument that the trial court erred when it refused to instruct the jury on punitive damages. In order to support an award of punitive damages in a non-media slander case involving a private figure there must be ill will, malice or bad intent on the part of the defendant towards the plaintiff. Dillard Department Store v. Felton, 276 Ark. 304, 634 S.W.2d 135 (1982).

We need not address the appropriateness of the trial court’s refusal to allow the appellant’s witness to answer a question proposed by the appellant. The appellant made no proffer of the witness’ response to the proposed question; therefore, it is a matter of mere speculation as to how the witness would have responded. We have long held that where an objection to the questioning of a witness is sustained and there is no proffer of the witness’ testimony, then there is no error to consider on appeal because the appellate court would have to speculate as to the answer the witness would have given, Dixon v. State, 228 Ark. 430, 307 S.W.2d 792 (1957), Galloway v. State, 258 Ark. 352, 524 S.W.2d 617 (1975); Phillip v. State, 266 Ark. 885, 587 S.W.2d 84 (1979).

For the foregoing reasons the judgment of the trial court is reversed and remanded with directions to proceed in a manner consistent with this opinion.

Reversed and remanded.

Purtle AND Newbern, JJ., not participating.

Hays, J., dissents.

Steele Hays, Justice,

dissenting.

Without discussion, the majority opinion assumes, incorrectly I believe, that if the trial judge had ruled differently on the impeachment evidence (point three in the majority opinion) there would be substantial evidence of an intentional interference with appellant’s contract of employment and, therefore, the directed verdict for the defendant (appellee) was improper. I disagree with that conclusion and I think the issue deserves more careful treatment than it receives in the majority opinion.

Even if the impeachment proof were allowed, the plaintiff (appellant) failed to produce substantial evidence that the appellee either intended or caused him to lose his job. Both are essential elements of the cause of action. Prosser and Keeton on Torts, 5th Edition, § 129, p. 989. Restatement of Torts, § 766. Stebbins & Roberts, Inc. v. Halsey, 265 Ark. 903, 582 S.W.2d 266 (1979); Walt Bennett Ford, Inc. v. Pulaski County Special School District, 274 Ark. 208, 624 S.W.2d 426 (1981). In Mason v. Funderburk, 247 Ark. 521, 446 S.W.2d 543 (1969) we cited the following language with approval:

It has now come to be the view of a majority of courts in this country that one who maliciously or without justifiable cause induces a person to breach his contract with another may be held responsible to the latter for the damages resulting from such breach. The term ‘maliciously’ in this connection alludes to malice in its technical legal sense, that is, the intentional doing of a harmful act without justification or excuse, and does not necessarily include actual malice, that is, malice in the sense of spite or ill will.

It is true that the requirement of malice or spiteful intent has been relaxed, Stebbins & Roberts, Inc. v. Halsey, supra, but an intentional interference remains a key element which the plaintiff must prove.

Giving the appellant’s proof its highest probative value, it still fails to create a fair inference that the bank sought to breach the employment agreement between Systematics and the appellant. The bank was being made the victim of a “cash-back” scheme which undisputedly involved the appellant’s account and the appellant admittedly had withdrawn (by A-T-M machine) some $ 1,500 above what he knew to be the correct balance of his own deposits. In that situation there ought to be no actionable conduct on the bank’s part in making reasonable inquiries concerning the depositor whose account was involved.

But whatever may be said of the proof on the issue of intent, there is not a shred of evidence, even from the appellant, that his discharge by Systematics was due to anything other than his admitted withdrawal of money that did not belong to him. The case was submitted to the jury on the defamation issue and I believe the trial court was correct in directing a verdict on the issue of intentional interference.


author: Per Curiam.

text:
    George HICKEY v. STATE of Arkansas
    CR 85-154
    697 S.W.2d 118
    Supreme Court of Arkansas
    Opinion delivered October 14, 1985
    Appellant, pro se.

    No response.
   Per Curiam.

Petitioner George Hickey was found guilty by a jury of kidnapping, rape and robbery. He was sentenced to concurrent terms of ten and twenty years for kidnapping and rape and an additional term of ten years for robbery to be served consecutively to those terms. He appealed the kidnapping conviction only, and the Court of Appeals affirmed. Hickey v. State, 14 Ark. App. 50, 684 S.W.2d 830 (1985). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37 on the sole ground that he was denied effective assistance of counsel on appeal. He bases the allegation on the decision of his appellate counsel to challenge only the sufficiency of the evidence to support the kidnapping conviction. Petitioner contends that there was insufficient evidence to convict him of any of the three offenses, kidnapping, rape or robbery.

Just as a petitioner may not use our postconviction rule as a means to challenge the sufficiency of the evidence on the allegation that counsel’s failure to move for a directed verdict amounted to ineffective assistance of counsel, Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984), a petitioner may not reach the sufficiency of the evidence by arguing that counsel should have raised the issue on appeal. Challenges to the weight and sufficiency of the evidence are a direct attack on the judgment which must be made in the trial court and, if warranted, on the record on appeal. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983). Postconviction relief is limited to grounds sufficient to void the judgment or open it to collateral attack. Clines v. State, 282 Ark. 541, 669 S.W.2d 883 (1984).

If we were to permit a petitioner to reopen the question of the sufficiency of the evidence under the guise of a claim of ineffective assistance of appellate counsel, Rule 37 would become an extension of the direct appeal. We have consistently held that a challenge to the sufficiency of the evidence is not cognizable under Rule 37. Pride v. State, 285 Ark. 89, 684 S.W.2d 819 (1985); Jones v. State, 283 Ark. 363, 767 S.W.2d 738 (1984); Williams v. State, 280 Ark. 543, 659 S.W.2d 948 (1983); Pitcock v. State, 279 Ark. 174, 649 S.W.2d 393 (1983); Swisher v. State, 257 Ark. 24, 514 S.W.2d 218 (1974); Cox v. State, 243 Ark. 60, 418 S.W.2d 799 (1967). We will adhere to that view of the rule even when the petitioner frames his attack on the evidence in an allegation of ineffective assistance of counsel.

Petition denied.

Purtle, J., not participating.


text:
    Willard ROBBINS v. STATE of Arkansas
    697 S.W.2d 118
    Supreme Court of Arkansas
    Opinion delivered October 14, 1985

      Neil V. Pennick, for petitioner.

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

Petitioner, Willard Robbins, by his attorney, Neil V. Pennick, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to his miscalculation of the seven-month maximum limit for filing the record in this Court. See Rule 5, Ark. R. App. P., Ark. Stat. Ann., Vol. 3A (Repl. 1979).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, 265 Ark. 964; Terry v. State, 272 Ark. 243 (1981).

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

Purtle, J., not participating.


author: George Rose Smith, Justice.

text:
    VILLAGE CREEK IMPROVEMENT DISTRICT OF LAWRENCE COUNTY et al. v. Bentley E. STORY, Chancellor on Assignment
    85-100
    697 S.W.2d 886
    Supreme Court of Arkansas
    Opinion delivered October 21, 1985

      Ponder & Jarboe, for appellant.

      Bill W. Bristow, P.A., for appellee.
   George Rose Smith, Justice.

This is a petition filed under Rule 16 to prohibit the respondent, as chancellor, from enforcing an interlocutory order which he entered in a pending case. We must refuse to issue the requested writ of prohibition, because the petition is in substance an attempt to obtain a review of a nonappealable interlocutory order.

The principal petitioner, Village Creek Improvement District of Lawrence County, was organized by a circuit court order in 1977, apparently to clean out an existing system of drainage ditches. The work, however, was not undertaken promptly. In 1981 the circuit court entered an uncontested order confirming the assessment of benefits and levying an annual tax to be used first to pay $30,000 in preliminary expenses and then to maintain the system of ditches.

The tax initially levied was paid by some landowners, four of whom join in this petition for prohibition, but other landowners protested the tax and refused to pay it. The district brought suit in the chancery court to collect the delinquencies, by foreclosure. The record before us, consisting of the petition and its exhibits, is not complete. Apparently the chancellor had cause to believe that the project had originally been planned to include lands in three counties and that there may have been constructive fraud when the same assessment of benefits was used for a district that actually includes lands lying only in Lawrence County. The chancellor wanted more information about the possibility of constructive fraud and therefore ordered that an expert study be made, with its cost to be paid from the taxes already collected.

In seeking a writ of prohibition to prevent the trial court from putting its order into effect the petitioners argue that a chancery court is without jurisdiction to order that taxes collected for one purpose be spent for some other purpose. Cases are cited for the principle frequently followed, that taxes specifically levied for a particular purpose cannot be diverted to another purpose without the consent of the taxpayers.

We recognize the rule of law, but it is a rule that governs the expenditure of public money; it does not affect the jurisdiction of the courts. Jurisdictionally, the Lawrence Chancery Court unquestionably has jurisdiction over the district’s suit to collect its taxes and over the parties to that suit. What the petitioners are really contending is that the chancellor’s decision to order an investigation at the district’s expense was wrong and should be reversed.

That contention may prove to be correct, but it does not follow that a writ of prohibition can be substituted for the normal remedy by appeal. We have held that the writ of prohibition cannot be so used. In Harris Distributors v. Marlin, 220 Ark. 621, 249 S.W.2d 3 (1952), a widow and children brought a wrongful death action against several defendants. When the plaintiffs discharged the liability of one defendant by obtaining and satisfying a separate judgment against him, the codefendants argued that their liability had also been discharged and that further action in the case should be prohibited. We disagreed. After pointing out that the writ of prohibition is proper in situations in which the trial court has no jurisdiction of the persons or of the subject matter, we went on to say:

It is in such situations that the writ is appropriate. If it were used to stay the proceeding in the trial court whenever counsel thought a ruling to be erroneous, much of our time would be occupied in the piecemeal settlement of questions that should be presented by appeal, and the trial courts would be unduly hampered in the disposition of their cases.

Another of our cases to the same effect is Vale v. Huff, 228 Ark. 272, 306 S.W.2d 861 (1957). That was a suit for personal injuries attributed to a defective automobile. The trial judge granted the defendants’ request under the discovery laws for permission to take the defective automobile parts to Detroit, for examination. No doubt the defendants argued that they would have no remedy if the parts were lost or destroyed, just as the present petitioners argue that they will have no remedy if the tax money is spent pursuant to the chancellor’s order. In both cases, however, the remedy is by appeal. We quote from the Vale opinion:

[T]he [federal] courts have repeatedly held that an order for discovery under Rule 34 is interlocutory and not appealable, and a writ of prohibition will not lie. “An order for discovery under this Rule is interlocutory and not appealable, but is reviewable only on appeal from the final judgment. An appellate court will not issue a writ of prohibition against a trial judge who in the exercise of his discretion has granted discovery.” Barron and Holtzoff, Federal Practice & Procedure, Vol. 2, § 803.

The petitioners have the burden of showing that they are clearly entitled to proceed by prohibition rather than by appeal. Karraz v. Taylor, 259 Ark. 699, 535 S.W.2d 840 (1976). That showing has not been made.

Writ denied.

Purtle, J., not participating.


text:
    Johnny Ray WOOD v. STATE of Arkansas
    CR 85-82
    697 S.W.2d 884
    Supreme Court of Arkansas
    Opinion delivered October 21, 1985

      Fenton Stanley, for appellant.

      Steve Clark, Att’y Gen., by: Joel Oliver Huggins, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The appellant, then 17 years old, was convicted of having raped a five-month-old girl. The child’s perineal area was so badly lacerated that surgical repairs to the vagina and rectum were necessary. The jury sentenced the appellant to life imprisonment. There is no merit in any of his three arguments for reversal, nor do we find error in any other matter brought to our attention.

First, we cannot say from the totality of the circumstances that the accused’s statement that was introduced in evidence was not voluntary. The statement was not taken until the second day after the offense was committed. Young Wood had talked to his mother, who told him to “come straight out” and tell what had happened. He was properly advised of his rights and understood them. He testified at the Denno hearing that he understood that a lawyer could be appointed for him, but he didn’t know why he would need one. He also testified that he had not understood that he was making a confession, but the decided weight of the evidence is to the contrary. The confession was properly admitted in evidence.

Second, the defendant said in his confession that he penetrated the child with his penis. At the trial, however, for the first time he changed his story and said that he had merely fingered her. In view of that testimony the State was allowed to amend the information to add an alternative allegation that the defendant engaged in deviate sexual activity with the victim. The amendment did not change the nature or degree of the crime; so it was properly made to conform to the proof. State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984). The court correctly instructed the jury that the State had the burden of proving sexual intercourse or deviate sexual activity, both of which were defined.

Third, the court properly refused to submit to the jury the lesser offenses of sexual abuse in the first degree, sexual abuse in the second degree, assault in the first degree, and assault in the second degree. Defense counsel argues this point as if the offenses should have been submitted merely because they are lesser than and includable in rape. The trial judge, however, is not required to submit an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. Ark. Stat. Ann. § 41-105(3) (Repl. 1977). Sexual abuse, as defined by statute, consists of the mere touching or fondling of certain parts of the victim’s body, and an assault does not involve any physical contact at all, that being a battery. See Sections 41-1605, 41-1606, 41-1808, and 41-1809, and the Commentaries to those sections. Here the undisputed testimony, confirmed by a photograph, shows that the victim’s entire perineal area was extensively torn by the violence of the rape. In view of that proof there was no rational basis in the evidence for a verdict acquitting the appellant of rape but finding him guilty of any of the enumerated lesser offenses. The requested instructions were rightly refused.

Affirmed.

Purtle, J., not participating.


author: Darrell Hickman, Justice.

text:
    UNION LINCOLN MERCURY, INC. v. Ronald W. DANIEL, et ux.
    85-106
    697 S.W.2d 888
    Supreme Court of Arkansas
    Opinion delivered October 21, 1985

      Gruber Law Office, by: Rita W. Gruber, for appellant.

      Dodds, Kidd, Ryan & Moore, by: Donald S. Ryan, for appellee.
   Darrell Hickman, Justice.

Union Lincoln Mercury, a Little Rock automobile dealer, sold Debbie Daniel a used 1982 Mercury Cougar, which had been wrecked and repaired. The Daniels sued Union Lincoln for damages for misrepresentation under the theory of the tort of deceit. The jury believed Debbie Daniel’s testimony and awarded the appellees $5,695 compensatory damages and $7,500 punitive damages. We affirm the judgment.

Debbie Daniel went to Union Lincoln to buy a used Mercury Cougar but could not arrange financing for the car she chose. The salesman, Preston Cowan, called her the next day and tdjd her he had “a bigger car, a better car, for less money with more on it, more options . . .” This was a 1982 Cougar, which had been traded in that day by Rose Eskridge, a State Farm Insurance claims representative. She had purchased the car knowing it had been wrecked and repaired. She drove it for almost two years before she took it to Union Lincoln and told them it had been wrecked, was falling apart and wanted another car. Union Lincoln bought it through Little Rock Wholesale. Cowan asked his supervisor if he could sell the Cougar. He was given permission, and it was conceded Union Lincoln knew precisely the condition of the car.

Cowan said he told Mrs. Daniel that the car had been in a wreck and showed her the places where it had been repaired with “bondo,” a synthetic used to repair vehicle damage. He said that he could tell the car had been hit on both sides, and when Mrs. Daniel observed some places of repair he explained the damage. Mrs. Daniel denied this. She said what when she noticed scratches around the keyhole and asked Cowan about them, he replied that they were caused by other car doors hitting it, or keys, or shopping carts running into the door. There was a conflict of material fact — whether the customer was told the vehicle had been wrecked. Union contended it told the customer; the customer denied that, claiming deceit and intentional misrepresentation. The jury found for the customer.

On appeal we only look to see if there is substantial evidence to support the verdict. Walt Bennett Ford, Inc. v. Brown, 283 Ark. 1, 670 S.W.2d 441 (1984); E. I. DuPont de Nemours and Co. v. Dillaha, 280 Ark. 477, 659 S. W.2d 756 (1983). Where there is conflicting testimony, it is within the province of the jury to resolve those conflicts. See Williams v. O’Neal Ford, Inc., 282 Ark. 362, 668 S.W.2d 545 (1984). The jury was instructed that the appellees had to prove six elements by a preponderance of the evidence:

Plaintiffs, Ronald and Debbie Daniel, claim against the defendant, Union Lincoln Mercury, Inc., has six essential elements as follows:
First, that the defendant represented to the plaintiff that the 1982 Mercury Cougar automobile was in a reasonably good condition for a vehicle of its make and age and reasonably fit for the purpose for which it was intended;
Second, that the representation was false;
Third, that the representation was known by the defendant to be false when it was made;
Fourth, that Ronald and Debbie Daniel relied on the representation and were deceived by it;
Fifth, that Ronald and Debbie Daniel acted with ordinary prudence in relying on the representation; and
Sixth, that the false representation was the proximate cause of damages to the plaintiff.

This instruction was given without objection and essentially sets forth the elements of the tort of deceit. Storthz v. Commercial Nat’l Bank, 276 Ark. 10, 631 S.W.2d 613 (1982). We conclude there was substantial evidence to support the jury’s finding.

Union Lincoln argues that the jury was improperly instructed on the measure of damages for misrepresentation. It made no objection, and we will not consider the argument on appeal. ARCP Rule 51. It also contends there was not substantial evidence to support the compensatory damages of $5,695. Debbie Daniel paid $8,192 for the car. There was evidence admitted that the car was only worth $2,500 when it was purchased. The difference between the award and the purchase price is $2,497. We find there is substantial evidence to support the verdict.

We do not find any merit to the argument that there was not sufficient evidence to support the award for punitive damages. We have already found that there was substantial evidence of intentional misrepresentation, so it was proper to permit the jury to consider an award of punitive damages. Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972). Neither is the amount excessive since that is a matter largely within the discretion of the jury. See Ray Dodge, Inc. v. Moore, supra.

Affirmed.

Purtle, J., not participating.


text:
    Tommy MAJORS v. PULASKI COUNTY ELECTION COMMISSION, COUNTY OF PULASKI, ALCOHOLIC BEVERAGE CONTROL BOARD, and STATE OF ARKANSAS
    85-120
    697 S.W.2d 535
    Supreme Court of Arkansas
    Opinion delivered October 21, 1985

      Paul Johnson, for appellant.

      Donald R. Bennett, for appellee.
   Steele Hays, Justice.

Following a local option election in

which the electors of Precinct No. 614 voted dry, Tommy Majors, a retail liquor store owner, sued the Pulaski County Election Commission, the Alcoholic Beverage Control Board and the State of Arkansas. The complaint alleged irregularities in the election process and that local option laws were a denial of the Due Process and Equal Protection Clauses of the Constitution. The defendants moved under ARCP 12(b)(6) to dismiss the complaint and on January 14,1985 the circuit court granted the motion upon a finding that the complaint failed to allege facts which would entitle the plaintiff to relief.

On January 22 Majors filed a motion for a new trial, but took no further steps in the case until March 14 when he filed a motion for a stay in the enforcement of a directive from the Alcoholic Beverage Control Board to wholesale liquor dealers to refrain from servicing retail owners in Precinct 614, and asking for a decision on his motion for a new trial. The Board responded to the motion, arguing that the order of dismissal had disposed of the case since the right to appeal had expired.

Majors replied, contending that a few days before the dismissal order was entered a hearing was held in which his counsel informed the circuit judge that he intended to file a motion for a new trial based on the constitutional issues raised in his complaint and was told by the judge that no future hearings would be necessary and counsel assumed that the motion for a new trial was taken under advisement. That motion, and the accompanying request for a decision on the new trial motion, were denied for failure to file a notice of appeal in accordance with ARAP 4.

Majors then obtained an injunction from the Pulaski Chancery Court restraining the Board from enforcing its directive to terminate retail sales in the precinct. That obvious encroachment on the jurisdiction of the circuit court was corrected by a writ of prohibition from this court to the Chancellor. See Alcoholic Beverage Control Board v. Munson, 287 Ark. 53, 696 S.W.2d 720 (1985).

The case was not quite over. Majors next filed a motion for findings of fact and conclusions of law, arguing that the court had never ruled on the constitutional issues. That motion was denied on April 1, 1985 upon a finding that the request for findings and conclusions was not timely. Majors has appealed, ostensibly from the April 1 order denying his request for findings.

We need not recite the assignments of error listed in Majors’s brief. This attempted appeal is governed squarely by Smith v. Boone, 284 Ark. 183, 680 S.W.2d 709 (1984), as the trial court correctly noted. After filing his motion for a new trial on January 22 Majors did nothing and, thus, his motion was deemed to have been acted on thirty days later, or February 21, at which time he had ten days in which to appeal, or until March 4 (March 3 being a Sunday). See ARAP 4 and Smith v. Boone, supra. As we have seen, no notice of appeal was filed within the time allowed. When no order was entered taking the motion for a new trial under advisement and no notice of appeal was filed within the time allowed, the order dismissing the complaint became final and the proceedings that followed were of no procedural significance. Nor can a request for findings of fact and conclusion of law filed after an order has become final be used as a means of resurrecting a claim already barred by finality. ARCP 52 and 59. Cain v. CarlLee, 169 Ark. 887, 277 S.W. 551 (1925).

In several decisions we have dealt with the methods to be followed in preserving the right to appeal when a motion for judgment n.o.v. or for a new trial are filed. Coking Coal v. Arkmo Coal Corp., 278 Ark. 446, 646 S.W.2d 12 (1983); Jacobs v. Leilabadi, 267 Ark. 1020, 593 S.W.2d 479 (1980); St. Louis S. W. Ry. v. Farrell, 241 Ark. 707, 409 S.W.2d 341 (1966). Those procedures are carefully explained in Smith v. Boone, supra, the opinion pointing out that since Jones v. Benton County Circuit Court, 260 Ark. 893, 545 S.W.2d 621 (1977), it has become mandatory for the record to show that during the thirty days the trial court either acted on the motion or took it under advisement.

We made an exception in Brittenum & Associates, Inc. v. Mayall, 286 Ark. 427, 692 S.W.2d 248 (1985), but those facts were exceptional. In Mayall, no docket entry or order was made during the thirty days following a motion for judgment n.o.v. filed on November 2,1984. However, it was undisputed that within the thirty days a hearing was scheduled and, at the direction of the trial judge, a letter was sent to opposing counsel on November 29 advising them of a hearing on the motion to be held on Monday, December 3. At the hearing, which counsel for both sides attended, the motion was taken under advisement and later denied by order entered on December 12, 1984. Thus, while no docket entry or order was made during the thirty days, a written, dated record was made and a hearing was actually held at which the motion was taken under advisement. The opinion in Brittenum & Associates, Inc. v. Mayall contains this caveat:

We will permit the rule on the clerk to issue in this case, because of the undisputed statement that a timely hearing was held, and because heretofore we have not stated that a written record of setting a hearing date must be filed and made a part of the official record of the trial court. W e want it to be clear for the future that if parties plan to base their arguments on timeliness of the notice of appeal upon a “written record” that a hearing has been set or held, the “written record,” a transcript of the hearing or other record of its having been held must be filed and made an official record of the court within thirty days from the making of the motion for judgment n.o.v. or for new trial.

In this case nothing whatever occurred after the motion for a new trial was filed until long after the thirty days had elapsed.

The appeal is dismissed and the mandate will issue immediately, the case having no discernible purpose other than to delay the results of the local option election. Rule 22 of the Rules of the Supreme Court and Court of Appeals.

Purtle, J., not participating.


text:
    Allen Bruce WOODS v. STATE of Arkansas
    CR 85-89
    697 S.W.2d 890
    Supreme Court of Arkansas
    Opinion delivered October 21, 1985

      Herman H. Hankins, Jr. and Steven G. Beck, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

In September, 1983, Allen Woods and three others were charged with aggravated robbery. A trial on this charge has not yet been completed and Woods brings this interlocutory appeal on the grounds of double jeopardy.

In April, 1984 a jury was selected and sworn in, but before testimony began it was discovered that the prosecution had taken a statement from one of the co-defendants but had not furnished it to the other defense attorneys as required by A.R.Cr.P. Rule 17.1. A continuance was granted and the jury was discharged.

A second trial was scheduled in August, 1984. Prior to jury selection the defense moved for dismissal on the grounds of double jeopardy as a result of the termination of the earlier trial. The motion was denied and a second jury was selected and sworn in. The discharging of the original jury and the selection of another gave the continuance the practical effect of a mistrial, see Daniels v. State, 12 Ark. App. 251, 674 S.W.2d 949 (1984), and that is not a point of contention in this case. The August trial began but after testimony by several witnesses, a mistrial was declared because of exculpatory testimony given by one of the witnesses. The defense requested this mistrial and there is no double jeopardy claim here.

Before proceeding with the third attempt at trial, a motion for dismissal was again made by the defense on double jeopardy grounds based on the termination of the first trial. The motion was denied and this appeal followed, pursuant to ARAP 3. See Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959).

Ark. Stat. Ann. § 41-106 (Repl. 1977) codifies the law on double jeopardy and provides in part:

Former prosecution — Same offense. A former prosecution is an affirmative defense to a subsequent prosecution for the same offense under any of the following circumstances:
****
(3) The former prosecution was terminated without the express or implied consent of the defendant after the jury was sworn or, if trial was before the court, after the first witness was sworn, unless the termination was justified by overruling necessity.

The Commentary to that section explains:

Express consent occurs when the defendant moves to terminate the trial or agrees to termination on motion of the court ór the state. The Model Penal Code declined to take a stand on whether mere failure to object to termination constitutes implied consent. Fortunately, the Arkansas Supreme Court has addressed the issue, developing what the Commission felt was a workable definition of implied consent. See, Franklin v. State, 149 Ark. 546 (1921); Burnett v. State, 76 Ark. 295 (1905). Consent is implied if the defendant fails to object to termination and the termination is for the benefit of the defendant. If the termination is for the benefit of the state, mere failure to object does not constitute consent.

Appellant argues that no express consent was given and, alternatively, that the termination was not for his benefit but for the benefit of the state and, hence, his failure to object does not constitute an implied consent. We reject the argument. The record at the first trial (pp. 248-253) reveals an extended dialogue in chambers between defense counsel, the prosecutor and the trial judge over a statement the prosecutor had taken from one of the co-defendants which had not been furnished to the other defendants until the morning of trial. The discussion concluded with this exchange:

BY MR. LEE (defense counsel):
But, we didn’t know anything about a statement until Ursery said there probably is one and now you’re saying there for sure is one.
BY MR. ARNOLD (prosecuting attorney):
I took it.
BY MR. ACHOR (defense counsel):
Brady vs. Maryland gives us that statement immediately. BY MR. ARNOLD:
Well, you’re getting it. I just got it.
BY MR. LEE:
Well, we’ve got no — absolutely no way to be able to disseminate that statement at the eleventh hour and prepare for a Wednesday trial after the jury has already been selected.
BY THE COURT:
You are right, gentlemen. I’m sorry, but I’m going to have to grant your request for a continuance. I don’t like it.
BY MR. ARNOLD:
Judge, I told them she was going to testify.
BY THE COURT:
I know you told them she was going to testify, but if she gave you a statement, it should have been made available to them.
BY MR. ARNOLD:
I’ve just got it transcribed.
BY THE COURT:
They filed a motion for discovery. You responded to them. You have updated them, but you have not given them a copy of that statement.

Although no consent was literally stated, reading the colloquy as a whole, it is clear the defense was requesting a continuance from the court, which was granted. No other interpretation is plausible.

Even if we could agree with appellant that no actual consent was expressed, the argument must fail because the continuance was for the benefit of the defense and was granted without objection, and in that circumstance consent will be implied. The objections to the co-defendant’s statement and the avowed need for more time were specifically stated by the defense. The continuance was obviously granted to enable the defense to adequately prepare for trial. See McGill v. State, 209 Ark. 85, 189 S.W.2d 646 (1945); Franklin v. State, 149 Ark. 546, 233 S.W. 688 (1921).

Affirmed.

Purtle, J., not participating.


text:
    Charles D. RAGLAND, Commissioner of Revenues, Department of Finance and Administration v. McLANE COMPANY, INC.
    85-119
    697 S.W.2d 892
    Supreme Court of Arkansas
    Opinion delivered October 21, 1985
    [Rehearing denied November 12, 1985.]

      Revenue Legal Counsel, for appellant.

      Norman, Howell, Smith & Lee, P.C., and Wright, Lindsey & Jennings, for appellee.

       Purtle, J., not participating.

   David Newbern, Justice.

McLane Company, Inc., the appellee, is a Texas corporation which was denied a permit to sell tobacco products in Arkansas. The appellant denied the permit because the company did not meet the residency requirements of Ark. Stat. Ann. §§ 84-4502(s) and 84-4505(f) (Supp. 1985). The chancellor declared the statutory residence requirements Unconstitutional. We affirm.

Section 84-4502(s) defines a tobacco “wholesaler” as one who sells tobacco products to Arkansas retailers “from an established place of business within this state.” Section 84-4505(f) provides:

(1) No Wholesale Cigarette Permit, Wholesale Tobacco Permit or General Tobacco Products Vending Permit shall be granted to any individual or person who is not a citizen and bona fide resident of the state of Arkansas and who has not been domiciled in the State continuously for at least one (1) year next preceding the date of application for permit.
(2) No Wholesale Cigarette Permit, Wholesale Tobacco Permit or General Tobacco Products Vending Permit shall be granted to any person who has a manager, director, officer, member or principal stockholder who would be ineligible to obtain a permit under provisions of this subsection. [Acts 1977, No. 546, § 5, p. 1357; 1979, No. 911, § 6, p. 2024; 1983, No. 255, § 3, p. 353.]

In Wometco Services, Inc. v. Gaddy, 272 Ark. 452, 616 S.W.2d 466 (1981), we held those provisions to be in violation of the Commerce Clause of the U.S. Constitution. However, our opinion noted that:

[t]here is no provision in this or any other act in this State relating to the health, safety or welfare of tobacco vendors or purchasers. The sale of cigarettes can affect the public health and therefore might be prohibited or strictly regulated. If we had any such laws in Arkansas, a different question would be presented. [272 Ark. at 454, 616 S.W.2d at 468.]

After the decision in Wometco Services, Inc. v. Gaddy, supra, the General Assembly amended Ark. Stat. Ann. § 84-4503 (Supp. 1985), which is part of the statutory scheme containing the sections mentioned above, so that it now notes that the Surgeon General of the United States has declared that smoking of cigarettes is detrimental to the health of the smoker. It further declares that the state has “. . . a very valid governmental interest in preserving and promoting the public health and welfare of its citizens. . . .” It also provides for inspection of tobacco products to assure they are “fresh and not contaminated.” These amendments apparently were enacted to cure the statute of the constitutional infirmity diagnosed in Wometco Services, Inc. v. Gaddy, supra. They do not succeed.

The statutory scheme under consideration is not merely a burden on interstate commerce, it brings tobacco commerce to a halt at our borders unless it is conducted by Arkansans. The U. S. Supreme Court has said that a statute which thus discriminates on its face is fatally defective even if a legitimate purpose is recited because the evil of economic protectionism may lurk in the means as well as the ends chosen by the legislature. Hughes v. Oklahoma, 411 U.S. 322 (1979); Philadelphia v. New Jersey, 437 U.S. 617 (1978). See also Bacchus Imports, Ltd. v. Dias,__U.S__, 104 S.Ct. 3049 (1984).

Even if we found only an incidental, rather than patent, interstate commerce burden and thus were required to balance a legitimate state purpose against that burden, we would hold these statutes invalid. We find no rational or other relationship between the requirement that only Arkansans bring cigarettes here for sale and the stated purpose of seeing to it that the tobacco is fresh and uncontaminated. Nor can we fathom how Arkansas inspectors will be aided in assuring freshness and lack of contamination by the fact that persons from other states are precluded from bringing tobacco to Arkansas. Nothing in the statutory scheme even purports to do anything about the danger declared by the Surgeon General to which the legislation now alludes.

In Hughes v. Oklahoma, supra, the Supreme Court pointed out the necessity of discerning “the practical impact of the law” without being bound by “the name, description or characterization given it by the legislature. . . .” [quoting Lacoste v. Louisiana Department of Conservation, 263 U.S. 454 (1924)]. The practical effect of the laws under consideration is unrelated to the purposes stated.

As in Wometco Services, Inc. v. Gaddy, supra, we decline to declare the entire statutory scheme invalid. Again, our holding is that the statutes are unconstitutional only to the extent they prevent nonresidents from engaging in business in Arkansas.

Affirmed.

Purtle, J., not participating.


text:
    Santos Cammiloj GARCIA v. STATE of Arkansas
    697 S.W.2d 119
    Supreme Court of Arkansas
    Opinion delivered October 21, 1985

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

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

Appellant, Santos Cammeloj Garcia, by his attorney, has filed for a rule on the clerk.

His attorney, John R. VanWinkle, 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 dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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

Purtle, J., not participating.


text:
    William R. GROOMS v. STATE of Arkansas
    697 S.W.2d 894
    Supreme Court of Arkansas
    Opinion delivered October 21, 1985

      Peter R. Darling, for appellant.

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

Petitioner, William R. Grooms, by his attorney, Peter R. Darling, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to his miscalculation of the seven-month maximum limit for filing the record in this Court. See Rule 5, Ark. R. App. P., Ark. Stat. Ann., Vol. 3A (Repl. 1979).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, 265 Ark. 964; Terry v. State, 272 Ark. 243 (1981).

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

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice. Robert H. Dudley, Justice,

text:
    William P. CLARK v. STATE of Arkansas
    CR 85-50
    697 S.W.2d 895
    Supreme Court of Arkansas
    Opinion delivered October 28, 1985

      Raymond Harrill, for appellant.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

On the morning of appel-

lant’s jury trial for terroristic threatening, he filed a motion asking that the trial judge recuse himself alleging the judge had committed bribery, slander, witness intimidation, and had made false material statements. For filing this motion, the appellant was ordered to show cause why he should not be held in contempt of court. A hearing was held and the same trial judge found appellant guilty of criminal contempt and sentenced him to 150 days in the county jail. It is from that judgment that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(c).

Appellant first argues that he was not afforded procedural due process in that he did not have adequate notice of the basis for the contempt charge nor time to prepare for the hearing.

The appellant filed the motion to recuse on February 15, 1985, the date of his jury trial. However, it was not brought to the attention of the trial court until the conclusion of the trial. On February 19, a hearing was held with reference to the appellant’s motion which was attended by the appellant’s attorney, but which appellant did not attend although he had notice of the hearing through his attorney.

At the conclusion of the hearing the trial judge issued a written order directing the appellant to appear and show cause why he should not be held in criminal contempt “for the filing of the attached Motion which directly impugns and impairs the respect due this Court and its authority.” In addition to the order, the judge wrote a letter to the appellant which informed him of a show cause hearing on February 28, 1985, at 1:30 p.m., without further explanation as to the nature of the hearing. The appellant admits receiving the court’s letter on February 22, however, he denies receiving a copy of the order and attached motion. Likewise, counsel for the appellant stated that he did not receive a copy of the order or attached motion either.

The appellant argues that, since he never received a copy of the order and attached motion, he was not aware of the purpose of the show cause hearing.

In any event, the appellant filed a pro se motion with the court on February 25 in which he asked the court to inform him of the purpose of the show cause hearing and requested additional time to prepare for the hearing, claiming he was entitled to “10 days due process in which to prepare”. Within minutes of the scheduled time for the February 28 hearing, the appellant filed an additional motion claiming lack of service of process, improper notice of show cause and lack of opportunity to defend. The trial court noted that the sheriff attempted to serve the appellant but was unable to do so because the appellant had left the state. The appellant’s attorney admitted that he advised his client as to the nature of the contempt charges on February 19 and felt prepared to go forward with the hearing February 28.

In response to the various claims of the appellant, the judge reset the hearing for March 1, 10 days after the February 19 hearing.

The only statutory notice requirements for con-tempts which are not committed in the immediate view and presence of the court, are contained in Ark. Stat. Ann. § 34-903 (Repl. 1962). That statute provides that the party charged “shall be notified of the accusation, and have a reasonable time to make his defense.” In Henderson, Sheriff v. Dudley, Chancellor, 264 Ark. 697, 574 S.W.2d 658 (1978), we discussed the power of a court to initiate a contempt proceeding by an order or a statement of facts setting out the charge, made of record, and signed by the judge. The court quoted CarlLee v. State, 102 Ark. 122, 143 S.W. 909 (1912) as follows:

There must be an accusation before the accused can be notified of it, and there is no reason why the court in session cannot recite that the matter offending has come to its knowledge, setting it out in an order, and direct a citation thereon to show cause. This was done by the Supreme Court in the case of the State v. Morrill, [16 Ark. 384] and was as effectual notice of the charge or accusation as an affidavit or information would have been.

We further explained in Henderson that there is no statutory requirement that the accused be given notice prior to the issuance of an order to show cause and instead the only statutory requirement is that the alleged contemnor have written notice of the accusation, and a reasonable opportunity to defend.

We reaffirm the requirements stated in Henderson. In this instance, we can safely say that even though the appellant may not have received a copy of the court’s order in the mail, written notice was waived in light of the information furnished to appellant and his counsel by letter and in open court. The appellant’s due process allegation is therefore without merit since he had sufficient notice and knowledge of the nature of the hearing; the judge continued the hearing; and the appellant has not shown he was prejudiced by the March 1 hearing date so as to demonstrate that his preparation time was not “reasonable.”

We do, however, find merit in appellant’s argument that the trial judge erred by not recusing from the hearing on the contempt charge.

In United States v. Meyer, 462 F.2d 827 (D.C. 1972) the Court of Appeals for the District of Columbia Circuit discussed the U.S. Supreme Court’s position on adjudication by an impartial judge. The court stated that a judge’s impartiality can be threatened when the alleged contempt “consists of a personal attack on the trial judge, of such a nature that the judge actually becomes embroiled in a personal dispute with the alleged contemnor, or that a ‘normal’ judge would likely be personally affected even though his feelings remain under control, . . .”

The Supreme Court in Mayberry v. Pennsylvania, 400 U.S. 455 (1971) noted that a judge who has been “cruelly slandered” is not likely “to maintain that calm detachment necessary for fair adjudication.” The Court referred to In re Murchison, 349 U.S. 133 (1955), where a judge acted as a one-man grand jury and later tried witnesses for contempt who refused to answer questions. That judge, according to the Court in Murchison, was “part of the accusatory process” and could not in the nature of things be “wholly disinterested in the conviction or acquittal of those accused. . . Fair trials are too important a part of our free society to let prosecuting judges be trial judges of the charges they prefer.”

Here, the appellant’s motion to recuse alleged criminal activity on the part of the judge, which certainly constitutes a “personal attack,” Meyer, supra. It is apparent from the transcript of the proceedings that the judge viewed the situation as an attack on his integrity. At the February 19 hearing, the judge told appellant’s attorney:

What I am suggesting to you, Mr. Tripcony, is this: I think the motion is contemptuous at least. I am prepared to give Mr. Clark a hearing on that. And the allegations are basically against me. I will not recuse. He says they are uncontroverted. And the burden is going to be on him that I am whatever it is before he could call me as a witness, if he could call me at all. I doubt that he could ever get to that.
As I see this, the burden is going to be on him to prove that I was in some overt act in conspiracy with someone. . . . So I am fairly confident that he can’t prove it because it doesn’t exist. [Transcript pp. 23-25]

The following remarks were made by the judge to another of appellant’s attorneys at the hearing on February 28:

Well, now, Mr. Harrill, let me tell you something. I’ve had more — not as much experience as you have but he’s been trying to fire me just like he fired you one time ever since I’ve been in this case. And he’s not going to and he’s not going to call me as a witness and I’m not going to recuse.
This is an imputation of my integrity as an officer of this Court and he’s not going to mention me in it and get me to transfer it. He’s run every other judge in this county off. I’m not going to run off.
Now, when we get down to it — when I can — the burden is going to be on him and I want to know what his proof is in paragraph seven that I bribed a witness. I want to know what his proof is that I intimidated a witness. I want to know what his proof is that I made a false statement. I didn’t testify. And I’m not going to get out of it. [Transcript pp. 50-51]

These remarks indicate that the judge became “embroiled in a personal dispute”, Meyer, supra, with the appellant. Even though the judge’s objectivity may not have been affected by the appellant’s attack, “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11 (1954). Accordingly, the trial judge under these circumstances should have recused from hearing the contempt charge. As stated by Chief Justice Taft in Cooke v. United States, 267 U.S. 517, 539 (1925):

[A] 11 of such cases . . . present difficult questions for the judge. All we can say on the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private rights, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place.

By our holding we do not intend that all contempts not committed in the immediate view and presence of the court, must be tried by a third party. But where a direct personal attack is made on a judge which is the subject of a contempt charge by that judge, or contemptuous conduct occurs which necessitates a factual hearing on the allegations made against the judge (as seems to have been contemplated in this case), to ensure a fair and impartial hearing the judge must recuse.

The appellant’s final argument is that the mere filing of the motion to recuse was not contempt. While this situation could fit within the perimeters of our definition of criminal contempt, see Ex parte Stroud, 167 Ark. 331, 268 S.W. 13 (1925), the underlying factual question will have to be resolved by the trial court upon remand.

The only statute concerning criminal contempt is § 34-903, supra, which sets forth the notice requirements previously discussed. We have therefore had to decide criminal contempt cases on an ad hoc basis as we do here. The difficulty with such an approach is that it offers few guidelines to trial courts, attorneys, and parties involved in litigation as to what constitutes contemptuous behavior. This is a problem that the legislature needs to address as we are confined to the resolution of specific issues and it is not the function of the court to promulgate guidelines and rules for criminal contempt charges. See, e.g., Brill, A Proposed Arkansas Contempt Statute, 1984 Ark. L. Notes, 29.

Reversed & remanded.

Purtle, J., not participating.

Dudley, J., concurs.

Robert H. Dudley, Justice,

concurring.

I concur solely to emphasize that the majority opinion applies only to criminal contempt cases in which the alleged contemptible act occurred out of the immediate view and presence of the court. It does not apply to civil contempt cases such as the ones routinely heard in domestic relation cases.


author: Jack Holt, Jr., Chief Justice.

text:
    Michael Daniel HERRINGTON v. STATE of Arkansas
    CR 85-135
    697 S.W.2d 899
    Supreme Court of Arkansas
    Opinion delivered October 28, 1985

      Switzer & Switzer, by: Bruce D. Switzer, for petitioner.

      Steve Clark, Att’y Gen., by: Sandra Tucker Partridge, Asst. Att’y Gen., for respondent.
   Jack Holt, Jr., Chief Justice.

Petitioner, Michael Herrington, was convicted by a jury of possession of a controlled substance. He appealed, arguing that the trial court erred by denying his motion to quash the search warrant since the supporting affidavit did not mention the time during which the criminal activity was observed. The Arkansas Court of Appeals affirmed his conviction in a three-three decision. Herrington v. State, 15 Ark. App. 248, 692 S.W.2d 251 (1985). As we granted petitioner’s petition for review, our jurisdiction is pursuant to Sup. Ct. R. 29(6). We reverse.

The primary issue in this case involves the application of the good faith exception to the exclusionary rule enunciated by the United States Supreme Court in United States v. Leon, 104 S. Ct. 3405 (1984), and adopted by this court in McFarland & Soest v. State, 284 Ark. 533, 684 S.W.2d 233 (1985); Lincoln v. State, 285 Ark. 107, 685 S.W.2d 166 (1985); Toland v. State, 285 Ark. 415, 688 S.W.2d 718 and State v. Anderson, 286 Ark. 58, 688 S.W.2d 947 (1985).

As we explained in Anderson, the Supreme Court in Leon held that “ ‘objective good faith reliance’ by a police officer upon the acceptance of his affidavit by a detached, neutral magistrate will avoid application of the exclusionary rule in the event the magistrate’s assessment is found to be in error.” This is because “the exclusionary rule is designed to deter misconduct on the part of the police rather than to punish errors of judges and magistrates.” Anderson, supra. We further noted in Anderson that:

How far below the standard of probable cause or a constitutionally valid warrant the Supreme Court is willing to go and still find good faith on the part of the police, has been left open. . . .To date we have not read Leon any more broadly than finding its utility in easing the burden of the prosecution from technicalities or form which heretofore might have invalidated an otherwise constitutionally sufficient warrant and which was insufficient despite all reasonable efforts and reliance on the part of the police.

Here, the warrant’s validity is being questioned because there is no indication in the affidavit of when the criminal activity was observed. The warrant was based on a form affidavit with the information inserted in the blanks on the form. The affidavit provided as follows:

David M. Foy, ASP Investigator, having been duly sworn in the form and manner required by law, on oath states:
I have probable cause to believe that on or in the residence, grounds and out-buildings located at Rt. 4, Box 405, Crossett, or the 1981 Chev. pickup w/AR veh lie IWE-892 in the charge or possession of Michael Herrington the following items or property is contained or concealed marijuana and other controlled substances and that such items or property (is) (are) contraband
The facts upon which I base my request for a Search Warrant are:
An informant whom I have used several times and whose information has been accurate advised me that he had seen marijuana and other controlled substances in the house and on the premises occupied by Herrington.

Our review of the probable cause for the issuance of the warrant is confined to the information contained in the affidavit as that was the only information before the magistrate when he issued the warrant. Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977).

In Collins v. State, 280 Ark. 453, 658 S.W.2d 877 (1983), as here, we were reviewing a three-three decision by the court of appeals on the validity of an affidavit which was the basis for the issuance of a search warrant. That affidavit likewise did not mention when an informant had seen marijuana growing in the petitioner’s home. We stated:

[W]hile inferences the magistrate may draw are those which a reasonable person could draw, certain basic information must exist to support an inference. All the magistrate had in this case was the affidavit and the information which we have recited. We find one defect that cannot be cured. The affidavit mentions no time during which the criminal activity occurred. . .
It is the uniform rule that some mention of time must be included in the affidavit for a search warrant. . . The only softening of this position occurs when time can be inferred from the information in the affidavit. For example, where an affidavit recited that the contraband was “now” in the suspect’s possession and that the search was urgent, that was found to be adequate to satisfy the time requirement ... In another case where the affidavit said that contraband was “recently” seen, coupled with the use of present tense as to the location of the contraband, that was held to be sufficient . . . Time is crucial because a magistrate must know that criminal activity or contraband exists where the search is to be conducted at the time of the issuance of the warrant. . . That is not an unreasonable nor technical demand of the law. (Citations omitted.)

Pursuant to Leon and Collins, we do not hold that the absence of a reference to time in an affidavit makes the subsequent warrant automatically defective. Rather, in such a situation, we look to the four corners of the affidavit to determine if we can establish with certainty the time during which the criminal activity was observed. If the time can be inferred in this manner, then the police officer’s objective good faith reliance on the magistrate’s assessment will cure the omission.

Here, however, the omission of any reference to time is so complete that none can be inferred. The only statements that are in the present tense are those pre-printed on the form. The information supplied by the affiant is imprecise (“I have probable cause to believe that on or in” (emphasis added)) and is worded in the past tense. There are no terms such as “recently” or “now” and no reference to an urgent situation as mentioned in Collins, supra, which would enable the court to ascertain the time factor. Accordingly the affidavit is defective and the warrant invalid.

In Leon, the Supreme Court not only announced the good faith exception to the exclusionary rule, it also delineated four errors which an officer’s objective good faith cannot cure. These occur (1) when the magistrate is misled by information the affiant knew was false; (2) if the magistrate wholly abandons his detached and neutral judicial role; (3) when the affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”, quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975); and (4) when a warrant is so facially deficient “that the executing officers cannot reasonably presume it to be valid”, Leon, supra, at pp. 3421-22. In its discussion of the third exception, the Court explained, “sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others,” quoting Illinois v. Gates, 103 S. Ct. 2317 (1983).

An affidavit such as this, with absolutely no reference to a time frame, does not provide sufficient information upon which a probable cause determination can be made. The issuance of a warrant on such an affidavit accordingly violates Ark. Const, art. 2, § 15 and results in an unreasonable search and seizure. The evidence obtained in this manner should have been suppressed.

We need not address petitioner’s second point since he prevails on his first argument.

Reversed.

Purtle, J., not participating.


text:
    SUN MARINE TERMINALS, INC. v. TOSCO CORPORATION
    85-129
    697 S.W.2d 901
    Supreme Court of Arkansas
    Opinion delivered October 28, 1985

      Vickery & Jones, P.A., for appellant.

      Wright, Lindsey & Jennings, for appellee.
   George Rose Smith, Justice.

The appellant, Sun Marine, brought this action for damages for breach of a 10-year contract by which it was to handle and store crude oil for the defendant, Tosco Corporation. The complaint alleged that Tosco had repudiated its contractual obligation by giving notice that it would no longer perform its side of the agreement, which still had about seven years to run. The case has not yet been tried, this being an appeal under Appellate Procedure Rule 2(a)(5) from an interlocutory order. The appeal comes to us under Rule 29(l)(c).

Sun Marine filed its complaint on March 5,1985. Two days later Sun Marine applied to the trial judge for a writ of attachment, submitting an affidavit asserting two statutory grounds for attachment; (1) Tosco is a foreign corporation, and the claim against it arises upon contract, Ark. Stat. Ann. § 31-101 (1), as limited by Subsection (8), (Repl. 1962); and (2) Tosco is about to sell its property and apply the proceeds to secured debts, leaving insufficient property in the state to satisfy Sun Marine’s claim. § 31-101(6). After a hearing at which Sun Marine proved its grounds for attachment, the circuit judge denied the application for the single reason that it had not been shown that Tosco was about to remove its property with intent to defraud its creditors.

The denial of the requested attachment was an error. Tosco’s status as a foreign corporation is undisputed and is in itself a sufficient ground for the attachment. When that ground is asserted, there is no statutory requirement that a fraudulent intent be shown. That intent is required only in subsections (7) and (8) of Section 31-101. We have never read such a requirement into the plain language of subsection (1) and have no reason for doing so.

Tosco argues that the attachment was properly denied, because “sufficient cause” was not shown in accordance with Section 31-149. That section reads as follows:

At any time before the attachment is sustained, the defendant, upon reasonable notice to the plaintiff, or his attorney, may move the court to discharge the attachment, the hearing of which may be postponed by the court, upon sufficient cause, from time to time; and, upon the hearing, if the court is of opinion that the attachment was obtained without sufficient cause, or that the grounds of attachment being controverted are not sustained, the attachment shall be discharged.

This is a procedural section that provides for a court hearing when the attachment has been issued by the clerk of the court, as authorized by Section 31-105. Under the quoted section the court may discharge the attachment issued by the clerk if it was obtained without sufficient cause, which means without a statutory ground, or if the existence of the asserted ground is successfully controverted by evidence presented to the court upon the motion to discharge the attachment. The situation contemplated by Section 31-149 did not arise in this case; so the section is inapplicable. Sun Marine proved its grounds for attachment.

The order is reversed and the cause remanded with directions that the attachment be issued, upon Sun Marine’s execution of a sufficient attachment bond.

Purtle, J., not participating.