text:
    Joseph Calvin THOMAS v. STATE of Arkansas
    CR 78-166
    583 S.W. 2d 32
    Opinion delivered June 25, 1979
    (Division II)

      McArthur & Lassiter, P.A., by: Jack T. Lassiter, for appellant.

      Bill Clinton, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Joseph Calvin Thomas was charged with the first degree murder of Jacob Martin, Jr., by shooting him on July 31, 1977. Thomas was found guilty of second degree murder. On appeal, he contends that the evidence was insufficient to support the jury verdict finding him guilty. We find sufficient evidence and affirm.

Martin died as a result of a wound inflicted by the firing of a .38 caliber pistol by appellant. The issue of second degree murder was submitted to the jury as a lesser included offense by an instruction setting out Ark. Stat. Ann. § 41-1503 (1) (b) (Repl. 1977), which defines that offense as follows:

A person commits murder in the second degree if he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life.

The case was properly submitted on the issue of justification. See Ark. Stat. Ann. § 41-110 (3) (Repl. 1977). Justification is a defense which becomes an issue when any evidence tending to support its existence is introduced by either the defendant or the state. Ark. Stat. Ann. §§ 41-502, 41-110 (3) (Repl. 1977). Those portions of the statute applicable here [41-507 (Repl. 1977)] provide:

(1) A person is justified in using deadly physical force upon another person if he reasonably believes that the other person is: (a) committing or about to commit a felony involving force or violence; or (b) using or about to use unlawful deadly physical force.
(2) A person may not use deadly physical force in self-defense if he knows that he can avoid the necessity of using that force with complete safety: (a) by retreating, except that a person is not required to retreat if he is in his dwelling and was not the original aggressor,

The court gave an instruction to the jury in the words of the statute.

It is the position of appellant that the evidence presented by the state substantiated a defense of justification in that it showed that:

1. The deceased was about to commit a felony involving force or violence.
2. The deceased was about to use unlawful deadly force.
3. Thomas was in his dwelling at the time of the incident.
4.Thomas was not the original aggressor.

The state had the burden of negating this defense. Ark. Stat. Ann. §§ 41-115 (5) (c), - 110 (1) (a), - 110 (3) (Repl. 1977). Thus, argues appellant, the state failed to present sufficient evidence that he knowingly caused the death of Martin under circumstances manifesting extreme indifference to human life.

As we view the evidence, the answer to the question posed by appellant turns upon the question of justification, for, unless appellant was justified in the shooting of Martin, the evidence is ample to sustain a conviction of second degree murder. In evaluating the evidence, appellant views it, for the most part, in the light most favorable to him. We must view it, however, in the light most favorable to the state. Stout v. State, 263 Ark. 355, 565 S.W. 2d 23. We will state it in that light.

The shooting was witnessed by at least three persons other than the deceased and the defendant, it took place on the porch of a dwelling house at 1860 Summit in Little Rock, where both Martin and Thomas lived. Phillip Bryant, an 11 - year-old boy, who lived next door, was one of them. His father and Ronald Lee Dixon were the others. After witnessing the shooting, Dixon called the police. Dixon, Bryant, Sr., and a man named Walter Jones were playing cards in Dixon’s house, directly across the street from the house at 1860 Summit Street. Thomas had been present there and had planned to play with the others, but Bryant said that he went back across the street several times. The shooting took place shortly after the last of these trips.

The Bryant youth was upstairs in his room, looking out the window, when he saw Jacob Martin come through the screen door which opened onto the porch at 1860 Summit. He testified that Joe Thomas immediately followed Martin out. He said that Martin was holding a plate in one hand and that Thomas fired one shot which missed Martin, and that Martin, then holding the plate with both hands, threw it at Thomas, who then fired the second shot which struck Martin.

The senior Bryant said that he and the others looked across the street and saw Martin come out of the house holding a plate of food on which there were eating utensils and that Thomas followed closely, carrying a gun at his side. He said that Martin was holding the plate with both hands and that the two appeared to be arguing, but that Martin had his back to Thomas and was standing near the steps when Thomas fired the pistol without raising it. Then, he said, Martin turned and, using both hands, threw the plate of food at Thomas, who shielded himself against the plate, took a step backward and shot Martin, who then fell to the porch. He said that Martin was unable to get up, although he tried several times.

Dixon said that he looked across the street when he heard the first shot, which apparently went through the porch floor. He said that he saw Martin throw a plate of food, on which there were utensils, at Thomas. He said that the next instant he saw the second shot. It seemed to him that the two were arguing. He, too, stated that Martin held the plate with both hands when he threw it and that Martin and Thomas were from four to six feet apart. Both Bryant and Dixon observed through a picture window in the Dixon house.

Dixon said that about five seconds elapsed between the time he looked up and the time the plate was thrown. Estimates of the three witnesses of the time interval between the throwing of the plate and the fatal shot ranged from a split second to five seconds. The Bryant youth and Dixon said that Martin had nothing in his hands after he threw the plate. Bryant, Sr., did not think that anything then remained in Martin’s hands. Dixon knew that Martin had a knife and fork on the plate, but said he couldn’t see what Martin had in his left hand.

After Martin fell, the elder Bryant saw Thomas walk across the porch toward Martin, holding the pistol over Martin’s face, and then walk around Martin, still pointing the pistol at him. Bryant said that when Martin did not get up, Thomas,, who was not wearing a shirt, went back into the house, but came out between 30 seconds and one minute later with a shirt, which he put on as he crossed the street on his way to the Dixon house. He knocked on Dixon’s door, but Dixon told him to leave and, at Bryant’s suggestion, called the police. Dixon said that Thomas then jumped off the porch and left.

At about 3:00 p.m., Lawrence Evans heard of the shooting. Later he went to his mother’s house at 721 West 17th Street and saw Thomas there. He said that Thomas was nervous and upset and wanting to know if Martin was dead. According to Evans, he and others tried to calm Thomas and persuade him to turn himself over to the police. He said that Thomas kept saying, “He shouldn’t have thrown the plate at me,” and then said, the “guy had a knife.”

There seems to have been no witness to events preceding Martin’s coming out the front door. Thomas gave the only accounts of these events, but they are not consistent.

Thomas made a statement to officers Chapman and Garner at about 6:20 p.m. He gave this version of the events leading up to the front porch episode:

Thomas came into the house at 1:00 or 1:30 p.m., after having been to a liquor store and having purchased a bottle of wine. He found Martin sitting in the kitchen cursing some hungry children. When Thomas remonstrated, Martin cursed Thomas, jumped up and advanced on Thomas, holding a knife. Thomas fled to his room, with Martin chasing him up the hall. Thomas went into his room, got his pistol, and went back into the hall where Martin was standing and fired a shot into the air. Martin then ran out the screen door and Thomas fired another shot in that direction but it did not hit Martin. Martin then picked up a plate, came toward Thomas while holding the knife in one hand, and threw the plate, hitting Thomas in the mouth. Thomas then fired the shot which hit Martin and proved to be fatal. Thomas then remarked that he ought to kill Martin, but when Martin pleaded with him, said that he would not. Thomas then went into the house, but soon came back out and went to his aunt’s house. He did not know Martin was dead until he went to the police station some hours later.

Thomas testified. His testimony varied from the statement in important particulars. He stated that he did not shoot Martin intentionally. In his testimony, he recited the following version:

Thomas had found two children cooking in the kitchen and heard hollering upstairs, so he went up and found two small children, whom he brought downstairs to the kitchen. After asking the two who were cooking to share their food with the little ones, Thomas went across the street to Dixon’s house. When he told the cardplayers about the children and their being left alone, he was advised to call the police. Instead, he went back across the street to the house in which both he and Martin lived and found Martin in the hall, with a plate of food in his hand. When he asked Martin to give some of it to the children, Martin refused, profanely. Thomas remonstrated strongly, but then saw that Martin had a knife and, becoming frightened because Martin had a reputation for cutting, ran to his room. Martin followed, entered the room and lunged at Thomas, who then grabbed his pistol off his dresser and fired it into the wall and floor. Martin then turned and left. Thomas did not know where he went. Thomas then tried to leave the house, but when he got to the porch, he found Martin hunched over against the wall. Martin cursed Thomas and threw the plate in his face. Martin was still holding the knife in his hand. When the plate hit Thomas in the face, the pistol he was still carrying went off and Martin fell to the floor. Thomas did not deliberately shoot Martin, but was afraid that Martin, who was cursing and making faces, was going to hurt him. Thomas saw Martin lying on the porch and went to see if he could give help. When he saw that Martin was lying still, he went into the house to ask others who lived there to call an ambulance and the police. Instead, they jumped up and left. Thomas then went to the Dixon house to use the telephone, but when denied admission, went to his aunt’s house and later went to the police station.
He did not hold the pistol in Martin’s face as Martin lay prone on the porch, go into the house to get a shirt, or have to be persuaded to go to the police station. The witnesses who described the encounter on the porch did not see what they said they saw.

Thomas was corroborated only by the facts that a knife was found on the porch, six to eight inches from Martin’s left hand, after Thomas had left the scene, and that there was a broken plate near the doorway. Thomas did have a small cut on his lips when he reached the police station. In his brief, Thomas tacitly concedes that the evidence might justify the finding that the knife left Martin’s hand when he threw the plate. Thomas said that he had tried unsuccessfully to find the two people who were inside the house when he reentered after the shooting. Yet, he did not give their names or other means of identifying them. He did give the names of two people he said he had seen across the street and had asked to call an ambulance, but he did not present them as witnesses. It is also true that Dixon, who gave some of the testimony most damaging to Thomas, had a criminal record and there were discrepancies in his testimony as compared with that he gave at a preliminary hearing. Still, the resolution of conflicts, inconsistencies and contradictions in the evidence was for the jury. Scott v. State, 254 Ark. 271, 492 S.W. 2d 902; Houpt v. State, 249 Ark. 485, 459 S.W. 2d 565; Hill v. State, 250 Ark. 812, 467 S.W. 2d 179. The jury’s conclusion on the credibility of the witnesses is binding on this court. Pope v. State, 262 Ark. 476, 557 S.W. 2d 887; King v. State, 194 Ark. 157, 106 S.W. 2d 582; Butler v. State, 192 Ark. 802, 95 S.W. 2d 636. Thejury obviously resolved these questions adversely to appellant. We cannot say that a reasonable mind could not have reached the jury’s conclusion from all the evidence.

We do not agree with appellant that, as a matter of law, the facts showed that Martin was about to commit a felony involving force or violence or about to use deadly physical force, either lawfully or unlawfully. The jury could have found, and apparently did find, from the testimony of eyewitnesses that Martin was only attempting to deter his pursuer from shooting him with the pistol. The jurors were not required to believe that Martin then had a knife in one hand or, if he did, that he ever attempted to use it as a weapon. The jury was not required to accept appellant’s testimony as to what happened before the emergence of Martin on the front porch, particularly in view of the differences in his accounts of the events. It could even totally reject evidence that Martin was the original aggressor. The jury was not required to accept Thomas’s testimony as uncon-tradicted, and we are not required to so view it. McCray v. State, 254 Ark. 601, 494 S.W. 2d 708; Sanders v. State, 258 Ind. 11, 279 N.E. 2d 194 (1972); Cook v. State, 46 Ala. App. 663, 248 So. 2d 158 (1971); People v. Amata, 270 Cal. App. 2d 575, 75 Cal. Rptr. 860 (1969). See also, State v. Monaco, 230 N.W. 2d 485 (Iowa, 1975); Hudson v. State, 77 Ark. 334, 91 S.W. 299; Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225; Lindsey v. State, 172 Ark. 1176, 288 S.W. 915; Lucius v. State, 116 Ark. 260, 170 S.W. 1016. The jury had a right to accept that part of his statement and testimony it believed to be true and to reject that part it believed to be false. Anderson v. State, 210 Ark. 548, 197 S.W. 2d 36; Smith v. State, 216 Ark. 1, 223 S.W. 2d 1011, cert. den. 339 U.S. 916, 70 S. Ct. 562, 94 L. Ed. 1341 (1950); Smith v. State, 218 Ark. 725, 238 S.W. 2d 649; Cranford v. State, 156 Ark. 39, 245 S.W. 189; Howard v. State, 34 Ark. 433.

If the jury believed, as it could from the evidence, that Martin did not engage in conduct that created a substantial danger of death or serious physical injury to Thomas, or that the circumstances did not demonstrate that Martin acted with extreme indifference to the value of human life, then it could not have concluded that he had committed an aggravated assault, as appellant suggests. See Ark. Stat. Ann. § 41-1604 (Repl. 1977). The jury was not bound to conclude that Martin was about to commit battery in the first degree, as appellant contends, because it was not unreasonable to believe that Martin did not act, or intend to act, with the purpose of causing serious physical injury to Thomas, or of seriously or permanently disfiguring him or of destroying, amputating or permanently disabling a member or organ of Thomas’s body or that the circumstances manifested that he was acting with extreme indifference to the value of human life. See Ark. Stat. Ann. § 41-1601 (1) (Repl. 1977).

Even if the jury believed that Martin was the original aggressor, it was not established, as a matter of law, that the use of deadly physical force by Thomas was justified even though, as an occupant of the house, he was not required to retreat. Ark. Stat. Ann. § 41-507 (2) (a). It was also Martin’s dwelling. Appellant admits that he chased Martin from the dwelling onto the front porch. Even if Martin was the original aggressor, if he had, in good faith, withdrawn from the encounter, and the danger to Thomas was no longer immediate, urgent and pressing, Thomas was not justified in pursuing him to continue the fight or to use deadly physical force on him. McDonald v. State, 104 Ark. 317, 149 S.W. 95. The time lapse between the throwing of the plate and the fatal shot may have been such that the jury concluded that Thomas acted knowingly and deliberately in a spirit of revenge which manifested an extreme indifference to the value of human life.

The judgment is affirmed.

We agree. Harris, C.J., Holt and Hickman, JJ.

      Even though appellant’s testimony at the trial seems to assert accident rather than justification, he does not contend, on appeal, that the slaying was accidental.

      Appellant’s aunt was the mother of Lawrence Evans.


source: Caselaw Access Project

author: Conley Byrd, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    Marie FRAKES v. Ray HUNT et al
    79-33
    583 S.W. 2d 497
    Opinion delivered June 25, 1979
    (In Banc)

      Dan Stripling, for appellant.

      Olmstead, Choate & Cooper, by: Stephen Choate and House, Holmes & Jewell, by: Anne E. Owings, for appellees.
   Conley Byrd, Justice.

The pivotal issue in this case is whether we should give retroactive effect to Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977). The facts giving rise to this litigation show that Linn Hunt died intestate on April 19, 1972. He had never married but had numerous collateral heirs, appellees Ray Hunt, et al. The principal asset of his estate was more than 400 acres of land which appellees have had possession of since Linn Hunt’s death. There is a statute, Ark. Stat. Ann. § 61-141 (d) (Repl. 1971), which prevents illegitimate children from inheriting from their fathers. Our statute is almost identical to the Illinois statute declared unconstitutional on equal protection grounds in Trimble v. Gordon, supra, on April 26, 1977. On September 26, 1977, appellant Marie Frakes brought this action, contending that she was the illegitimate child of Linn Hunt and that in view of Trimble v. Gordon, supra, she inherited the 400 acres of land that Linn Hunt owned as his sole heir. The trial court held Ark. Stat. Ann. § 61-141 (d) (Repl. 1971) was unconstitutional in view of Trimble v. Gordon, supra. He also found that appellant was the illegitimate child of Linn Hunt. However, the trial court ruled that appellant was not within the class of illegitimates who would be permitted to inherit from the father, since there was no semblance of a parent-child relationship nor was there a formal order establishing paternity. Both parties have appealed.

We, as did the parties in oral argument, recognize that Ark. Stat. Ann. § 61-141 (d) (Repl. 1971) is constitutionally invalid under Trimble v. Gordon, supra, — see Lucas v. Handcock, Adm’x., (handed down this same date), 266 Ark. 142, 583 S.W. 2d 491 (1979). In her brief appellant, with respect to the pivotal issue of whether she can rely upon Trimble v. Gordon, supra, states:

“Appellant recognizes that if Ark. Stat. Ann. § 61-141 (d) is declared unconstitutional the Court will be required, in some cases, to enunciate rules that will protect those persons who have relied upon the statute. In some cases, equity and justice will require exception to permitting inheritance by illegitimates where heirs or bona-fide purchasers for value have acted in reliance on a justified assumption that no illegitimate exists. Appellant contends that in her case no necessity exists for enunciating such a rule since no bona fide purchasers for value are involved in the litigation and since there has been no reliance upon the non-existence of an illegitimate by those nieces and nephews and children of nieces and nephews who would have inherited from Linn Hunt, but for Appellant.”

Arkansas, like most states, permits a person to will his property to whomever he wishes to the exclusion of children. To exclude children, however, Ark. Stat. Ann. §60-507(Repl. 1971), requires that a child be mentioned specifically or as a member of a class. If a person does not elect to make a will, then his property, upon his death, is distributed according to the laws of descent and distribution. Consequently, a person of modest means who is satisfied with the persons to whom distribution of his property would be made under the law of descent and distribution has no reason to go to the trouble and expense of making a will. Had Linn Hunt made an inquiry of his lawyer as to the law of descent and distribution as much as a year before his death, his lawyer with confidence, citing Labine v. Vincent, Adm’r, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed 2d 288 (March 29, 1971), could have informed Linn Hunt that an illegitimate child would not take under the law of descent and distribution.

Furthermore, should we accept appellant’s argument, we would run hgad on into a title problem that could materially hamper the improvement of property, for Ark. Stat. Ann. §37-226 (Repl. 1962) provides:

“If any person entitled to bring any action, under any law of this state, be at the time of the accrual of the cause of action, under twenty-one [21] years of age, or insane or imprisoned beyond the limits of the state, such person shall be at liberty to bring such action within three [3] years next after full age, or such disability may be removed.”

See, also, the pretermitted child statute, Ark. Stat. Ann. § 60-507 (b)(Repl. 1971).

When the Supreme Court of Kentucky was faced with the problem before us in Pendleton v. Pendleton, (Ky. 1978) 560 S.W. 2d 538 it held:

“In so far as it declares the invalidity of KRS 391.090 this opinion shall have no retroactive effect upon the devolution of title occurring before April 26, 1977 (the date of the Trimble opinion), except for those specific instances in which the dispositive constitutional issue raised in this case was then in the process of litigation.”

The Supreme Court of Tennessee after holding its illegitimate statute invalid in Allen v. Harvey, Tenn., 568 S.W. 2d 829 (1978) stated:

“The decision we reach today — that a child born out of wedlock may inherit from and through his father— is specifically limited to cases where paternity is established by clear and convincing proof and to cases where rights of inheritance have not finally vested. All cases in conflict with this decision are hereby expressly overruled.
The application of this decision shall be prospective only but it shall govern any cases pending in the courts of Tennessee on the date this opinion is released, asserting the right of children born out of wedlock to inherit from the natural father.”

Based upon the foregoing authorities and to prevent chaotic conditions arising from the lack of title to real property, we affirm the trial court — not for the reasons stated by the trial court — but on the basis that Trimble v. Gordon, supra, should not be applied retroactively.

By a cross appeal, appellees contend that the trial court erred in finding that appellant was the illegitimate child of Linn Hunt. While we have some doubt whether the evidence of paternity is sufficient to sustain the heavy burden of proof required to prove paternity, we need not address that issue as our decision on the retroactive effect of Trimble v. Gordon. supra, makes the finding of paternity moot.

Affirmed.

Fogi.kman and Purtle, JJ., dissent.

John A. Fogleman, Justice,

dissenting. With all due respect to my brethren of the majority and to the Supreme Courts of Tennessee and Kentucky, I cannot join in the holding that Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), shall not be applied retroactively. It is not within the power of this court to say whether the decisions of the United States Supreme Court are retroactive. That is a matter for that court and that court alone. See Laabs v. Wisconsin Tax Commission, 218 Wis. 414, 261 N.W. 404 (1935). There is no indication in the opinion in Trimble that it should be restricted to prospective effect. The fact that there was no such indication weighs heavily in favor of retroactivity. Stocker v. Hutto, 547 F. 2d 437 (8 Cir., 1977); Chavez v. Rodriguez, 540 F. 2d 500 (10 Cir., 1976).

In Trimble, the United States Supreme Court held that an adjudication in a paternity action was sufficient to establish the illegitimate child’s right to claim a child’s share without compromising the state’s legitimate interest in the accurate and efficient disposition of property at the death of that child’s blood father. The case was remanded for further proceedings not inconsistent with the opinion. This would seem to indicate that the decision was not to be given prospective effect only.

Until the decision in Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), both common law and decisions of the United States Supreme Court recognized a general rule of retrospective effect for the constitutional decisions of that court, subject to limited exceptions. The court declared that it was charting new ground in Linkletter, which was an exception to the general rule. In Linkletter and Desist v. United Slates, 394 U.S. 244, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969), the criteria'for determing whether such a decision was to be accorded Retrospective or prospective effect were established. Robinson v. Neil, 409 U.S. 505, 93 S. Ct. 876, 35 L. Ed. 2d 29 (1973). But those criteria relate primarily to constitutional rules relating to criminal trials, and have little bearing on equal protection cases. It was pointed out in Desist, however, that extent of reliance on the continuing validity of previous decisions was to be applicable only when the purpose of the new constitutional rule did not clearly favor either retroactivity or prospectivity.

The court’s decisions denying retroactivity, outside the criminal law field, related primarily to procedural rules. See England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S. Ct. 461, 11 L. Ed. 2d 440 (1964).

We are here dealing with a decision holding unconstitutional a statutory provision not pertaining to criminal law or to procedural rules. It has been said that such a statute must be treated as if it had never been passed. Morgan v. Cook, 211 Ark. 755, 202 S.W. 2d 355; State v. Williams-Echols Dry Goods Co., 176 Ark. 324, 3 S.W. 2d 340; Cochran v. Cobb, 43 Ark. 180. We have said that no rights can be predicated on an unconstitutional statute. Road Improvement Dist. No. 4. v. Burkett, 163 Ark. 578, 260 S.W. 718. Perhaps the matter has been overstated in these cases, but none of them have been overruled, and, although I realize this court has given only prospective effect to decisions overruling previous decisions in some cases, I am unaware of any case in which we have said that a decision holding a statute unconstitutional had prospective effect only. To do so is to say, in effect, that the statute was valid today, or perhaps yesterday, but from now on it is invalid. This is certainly not logical.

Perhaps there is a more desirable means of dealing with the effect of a decision holding a statute unconstitutional. Dictum in Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S. Ct. 317, 84 L. Ed. 329 (1940), was the first indication that the United States Supreme Court would do so. There the court said:

The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442, 30 L. Ed. 178, 186 6 S. Ct. 1121; Chicago I. & L. R. Co. v. Hackett, 228 U.S. 559, 566, 57 L. Ed. 966, 969, 33 S. Ct. 581. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects — with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidty cannot be justified. Without attempting to review the different classes of cases in which the consequences of a ruling against validity have been determined in relation to the particular circumstances of past transactions, we appropriately confine our consideration to the question of res judicata as it now comes before us.

Ever since Linkletter was decided, the United States Supreme Court has struggled with the problem of non-retroactivity, which might have been solved there by applying the result reached in Chicot County Drainage District v. Baxter State Bank, supra. A four-judge plurality addressed itself to the problem and invented a new approach in Lemon v. Kurtzman, 411 U.S. 192, 93 S. Ct. 1463, 36 L. Ed. 2d 151 (1973). They said:

Claims that a particular holding of the Court should be applied retroactively have been pressed on us frequently in recent years. Most often, we have been called upon to decide whether a decision defining new constitutional rights of a defendant in a criminal case should be applied to convictions of others that predated the new constitutional development. E. g., Robinson v. Neil, 409 U.S. 505, 35 L. Ed.2d 29, 93 S. Ct. 876 (1973); Adams v. Illinois, 405 U.S. 278, 31 L. Ed. 2d 202, 92 S. Ct. 916 (1972); Desist v. United States, 394 U.S. 244, 22 L. Ed. 2d 248, 89 S. Ct. 1030 (1969); Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967); Johnson v. New Jersey, 384 U.S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772 (1966); Tehan v. Shott, 382 U.S. 406, 15 L. Ed. 2d 453, 86 S. Ct. 459 (1966); Linkletter v. Walker, 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731 (1965). But “in the last few decades, we have recognized the doctrine of nonretroactivity outside the criminal area many times, in both constitutional and nonconstitutional cases.” Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971); Hanover Shoe v. United Shoe Machinery Carp., 392 U.S. 481, 20 L. Ed. 2d 1231, 88 S. Ct. 2224 (1968); Simpson v. Union Oil Co., 377 U.S. 13, 12 L. Ed. 2d 98, 84 S. Ct. 1051 (1964); England v. State Board of Medical Examiners, 375 U.S. 411, 11 L. Ed. 2d 440, 84 S. Ct. 461 (1964). We have approved non-retroactive relief in civil litigation, relating, for example, to the validity of municipal financing founded upon electoral procedures later declared unconstitutional, Cipriano v. City of Houma, 395 U.S. 701, 23 L. Ed. 2d 647, 89 S. Ct. 1897 (1969), and City of Phoenix v. Kolodziejski, 399 U.S. 204, 26 L. Ed. 2d 523, 90 S. Ct. 1990 (1970); or to the validity of elections for local officials held under possibly discriminatory voting laws, Allen v. State Board of Elections, 393 U.S. 544, 22 L. Ed. 2d 1, 89 S. Ct. 817 (1969). In each of these cases, the common request was that we should reach back to disturb or to attach legal consequence to patterns of conduct premised either on unlawful statutes or on a different understanding of the controlling judge-made law from the rule that ultimately prevailed.
Appellants urge, as they did in the District Court, a strange amalgam of flexibility and absolutism. Appellants assure us that they do not seek to require the schools to disgorge prior payments received under Act 109; in the same breath, appellants insist that the presently disputed payment be enjoined because an unconstitutional statute “confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.’’Norton v. Shelby County, 118 U.S. 425, 442, 30 L. Ed. 178, 6 S. Ct. 1121 (1886). Conceding that we have receded from Morton in a host of criminal decisions and in other recent constitutional decisions relating to municipal bonds, appellants nevertheless view those precedents as departures from the established norm of Norton. We disagree.
The process of reconciling the constitutional interests reflected in a new rule of law with reliance interests founded upon the old is “among the most difficult of those which have engaged the attention of courts, state and federal ...” Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374, 84 L. Ed. 329, 60 S. Ct. 317 (1940). Consequently, our holdings in recent years have emphasized that the effect of a given constitutional ruling on prior conduct “is subject to no set ‘principle of absolute retroactive invalidity’ but depends upon a consideration of ‘particular relations . . . and particular conduct ... of rights claimed to have become vested, of status, of prior determinations deemed to have finality’; and ‘of public policy in the light of the nature both of the statute and of its previous application.’ ” Linkletter, supra, at 627, 14 L. Ed. 2d 601, quoting from Chicot County Drainage Dist., supra, at 374, 84 L. Ed. 329. However appealing the logic of Norton may have been in the abstract, its abandonment reflected our recognition that statutory or even judge-made rules of law are hard facts on which people must rely in making decisions and in shaping their conduct. The fact of legal life underpins our modern decisions recognizing a doctrine of non-retroactivity. Appellants offer no persuasive reason for confining the modern approach to those constitutional cases involving criminal procedure or municipal bonds, and we ourselves perceive none.
in Linkletter, the Court suggested a test, often repeated since, embodying the recent balancing approach; we looked to “the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Id., at 629, 14 L. Ed. 2d 601. Those guidelines are helpful, see infra, at 201-203, 36 L. Ed. 2d at 162, 163, but the problem of Linkletter and its progeny is not precisely the same as that now before us. Here, we are not considering whether we will apply a new constitutional rule of criminal law in reviewing judgments of conviction obtained under a prior standard; the problem of the instant case is essentially one relating to the appropriate scope of federal equitable remedies, a problem arising from enforcement of a state statute during the period before it had been declared unconstitutional. True, the temporal scope of the injunction has brought the parties back to this Court, and their dispute calls into play values not unlike those underlying Linkletter and its progeny. But however we state the issue, the fact remains that we are asked to re-examine the District Court’s evaluation of the proper means of implementing an equitable decree. Cf. United States v. Estate of Donnelly, 397 U.S. 286, 295, 25 L. Ed. 2d 312, 90 S. Ct. 1033 (1970); id., at 296-297, 25 L. Ed. 2d 312 (Harlan, J., concurring).
In shaping equity decrees, the trial court is vested with broad discretionary power; appellate review is correspondingly narrow. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 27 n 10, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971). Moreover, in constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable. *****

The plurality then disposed of the effect of the statute in the proceeding before it by treating it as an equity proceeding. That position did not draw a majority. One justice concurred only in the judgment. One justice did not participate. Three took the position that the problem of retroactivity involved in criminal cases was inapplicable and that a losing litigant has no equity in the fact that he relied on advice that turned out to be unreliable or wrong. They felt that only a compelling circumstance should limit a judicial ruling to prospective applications.

As appellants have suggested, there is a sound basis for rejecting an attack upon the title to property in the hands of a bona fide purchaser for value in reliance upon a title which had vested in the legitimate heirs of a deceased father. That is not the case here. The statute of limitations on recovery of real property had not run in this case. I find no basis in the evidence for applying the doctrines of laches or estoppel here. The evidence indicates that there has been no administration on Linn Hunt’s estate, although he had been dead more than five years when the suit was filed. If there had been a determination of heirship, it would certainly have been made known.

In my opinion, we should assume that Trimble has retroactive effect, until the United States Supreme Court has held to the contrary. I would remand this case, however, to the trial court for a reconsideration of the question of paternity. The trial judge found that appellant had shown by a preponderance of the evidence that she was the illegitimate child of Linn Hunt. We have said that this relationship must be shown by clear and convincing evidence. There' are reasons to question whether appellant met that test. It is significant to me that the bastardy action was not pursued to judgment, that appellant never had but one conversation with her mother about her paternity (and that was when she was 12 years old), and that when appellant applied for a birth certificate two years before Trimble was decided, she did not give Linn Hunt’s name as her father. So much depends upon credibility of witnesses and weight given their testimony, in deciding whether evidence is clear and convincing, only the judge who saw and heard them testify should make that decision.

I am authorized to state that Mr. Justice Purtle joins in this opinion.


author: Frank Holt, Justice.

text:
    Ruth HUNT, Individually and as Guardian of the Estate of Henry Bryant HUNT v. Silas BREWER, Jr. and James H. LARRISON, Jr.
    79-6
    585 S.W. 2d 12
    Opinion delivered June 25, 1979
    (In Banc)
    [Rehearing denied September 4, 1979.]

      Guy H. Jones, Phil Stratton, Guy Jones, Jr., and Casey Jones, by: Phil Stratton, for appellant.

      Wright, Lindsey & Jennings, for appellees.
   Frank Holt, Justice.

This appeal results from the granting of appellees’ motion for summary judgment.

On September 3, 1970, Henry Bryant Hunt received a compensable injury for workmen’s compensation benefits. His injuries required home nursing care. His wife, the appellant, resigned her regular employment on September 10, 1970, in order to devote full time to the home nursing care of her husband. On January 7, 1971, the Hunts employed appellee Silas Brewer, Jr., to represent them in their claim for workmen’s compensation benefits. Appellant was appointed guardian of the estate of her husband. James H. Larrison, Jr., became associated with Brewer following Brewer’s employment by the Hunts and took over the case. Because of some misunderstanding with the appellant, he was relieved by her as counsel in May, 1974, before any hearing had been held on the claim. On July 8, 1974, Brewer appeared as counsel for appellant before the administrative law judge. This was the first hearing held in the matter. Brewer claimed benefits for (1) safety violation, (2) nursing services, (3) medical and related expenses, and (4) attorneys fees. A month later, or in August, 1974, Brewer was relieved as counsel for appellant and has had no further connection with the presentation of the claim. Appellant secured other counsel, and at a hearing on October 1, 1975, the matter relating to the claim for payment of nursing services by appellant was again presented. The administrative law judge held appellant was entitled to receive payment for nursing care in the amount of $80 per week. However, he did not state the commencement date for such payments. On appeal on April 9, 1976, the Commission affirmed the findings of the administrative law judge and increased the award of benefits for nursing care to $100 a week to commence on July 8, 1974. We affirmed the Commission’s findings in Dresser Minerals v. Hunt, 262 Ark. 280, 556 S.W. 2d 138 (1977).

Appellant then filed this action alleging that appellees were guilty of negligence in that they failed and refused to present a claim for nursing care. She claimed that she had been damaged in the amount of the value of her nursing care between December, 1970, and July, 1974, at the rate of $100 per week. Appellees filed a motion with supporting affidavits for summary judgment. Appellant filed her counteraffidavit along with one by Dorothy Cunningham. Summary judgments were entered. Hence this appeal contending that the trial court erred in granting summary judgments.

A summary judgment is proper whenever no genuine issue exists as to a material fact, and the moving party is entitled to judgment as a matter of law. Ark. Stat. Ann. § 29-211 (Repl. 1962) and Purser v. Corpus Christi St. Nat'l Bank, 258 Ark. 54, 522 S.W. 2d 187 (1975).

The counteraffidavit of Dorothy Cunningham is of no support to appellant’s position inasmuch as she merely states conclusions of law, other than the undisputed fact that appellant left her employment to devote full time to nursing care for her husband on September 10, 1970. In appellant’s affidavit, she asserted Brewer failed and refused to present evidence in his possession on July 8, 1974, which would show that she was entitled to nursing care benefits from September 10, 1970, to the date of the hearing and on into the future; there was not proper preparation for the hearing on July 8, 1974; her attorneys, the appellees, failed or refused to establish that the nursing home care should begin on September 10, 1970; and the appellees failed and refused to present all medical data in their possession at the time of the hearing on July 8, 1974. The thrust of appellant’s argument is that the appellees were negligent in failing and refusing to timely present evidence as to when her claim for nursing services began.

Appellant’s counteraffidavit is nothing more than a statement of legal conclusions rather than a factual issue in view of the record in this case. At the first hearing, Brewer did claim benefits for nursing services. The opinion of the administrative law judge recites the following:

3. Nursing Services: This issue was partially covered at the hearing but the claimant’s evidence concerning the value of such services was incomplete and the record was held open for additional evidence. (Italics supplied.)

Approximately a month after the first hearing, appellant relieved Brewer as her counsel and secured the services of other attorneys. Her substitute counsel pursued the matter of nursing care at a subsequent hearing at which time $80 a week was awarded. No particular time, however, was specified by the administrative law judge as to when payment was to begin. The full Commission, on appeal, increased the nursing benefits from $80 to $100 a week. For the first time, a specific date, July 8, 1974, was selected as to when nursing care benefits should begin. On appeal to this court, Dresser Minerals v. Hunt, supra, we said:

The commission explained its selection of a somewhat arbitrary date by pointing out that the claimant did not prove by a preponderance of the evidence that the nursing services award should begin on any certain date. That explanation is true. The claimant's evidence was not directed to that precise point. (Italics supplied.)

The record clearly reflects that the issue of nursing services was, through Brewer’s efforts, joined at the first hearing. Brewer, by appellant’s choice, did not represent her at the time she failed to show by a preponderance of the evidence as to when the award of nursing services should begin. When appellant’s allegations are viewed most favorably, it cannot reasonably be said there was a fact question as to any negligence whatsoever on the part of Brewer with respect to appellant’s failure to convince the Commission that she was entitled to nursing benefits for a longer period of time than was approved by the Commission.

Larrison’s services were not utilized by appellant until sometime after Brewer had been engaged by the appellant. His services were terminated by her prior to the first hearing on July 8, 1974. Obviously, the motion for a summary judgment on behalf of Larrison was proper.

Affirmed.


text:
    Norma Jean GROSS v. Raymond Frank GROSS
    79-40
    585 S.W. 2d 14
    Opinion delivered June 25, 1979
    (Division II)
    [Rehearing denied September 4, 1979.]

      Shaw & Ledbetter, for appellant.

      Charles R. Garner, for appellee.
   Frank Holt, Justice.

Appellant was awarded a divorce from appellee, custody and support of their 3 children, alimony, and a division of their property. Appellant appeals from that portion of the decree dealing with the division of their property and the award of child support and alimony. We first consider the division of property.

Appellant was awarded a savings account of SI6,000, 1 /2 ($2,500) of a certificate of deposit, a Cadillac automobile, 7,040 ($52,800) shares of stock which were in her name, 1,298 ($9,735) of appellee’s approximately 78,000 shares of the same type stock, and 1/3 life interest in appellee’s 1/18 interest in certain real estate providing $90,000 gross income annually. Her interest would approximate $1,650 per year. Appellate was denied any statutory interest in the balance of appellee’s 78,000 shares of stock and two trusts in which appellee has interests. The court exempted these items from the statutory allowance because appellee acquired them during marriage by gift or inheritance from his parents. Even so appellant argues that since she is the party receiving the divorce, she is entitled to 1/3 of appellee’s personal property absolutely and 1 /3 of his real estate for life without reference as to how the property was acquired.

Ark. Stat. Ann. § 34-1214 (Repl. 1962) reads in pertinent part:

. . . the wife so granted a divorce against the husband . . . . shall be entitled to one-third [1/3] of the husband’s personal property absolutely, and one-third [1/3] of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form ....

in interpreting this statute, we said in Bowling v. Bowling, 237 Ark. 199, 372 S.W. 2d 239 (1963):

When a divorce is awarded to the wife the statute affirmatively requires that she be granted a third of the husband’s personal property absolutely and a third of his real property for life.

This right arises as a matter of law upon the wife’s being granted a divorce. Mickle v. Mickle, 253 Ark. 663, 488 S.W. 2d 45 (1972). See also Carr v. Carr, 226 Ark. 355, 289 S.W. 2d 899 (1956). It is true, as pointed out by appellee, that we have not always interpreted this statute as being absolute in its requirements. Lewis v. Lewis, 255 Ark. 583, 502 S.W. 2d 505 (1973); Alexander v. Alexander, 227 Ark. 938, 302 S.W. 2d 781 (1957); Cook v. Cook, 233 Ark. 961, 349 S.W. 2d 809 (1961); and Knighton v. Knighton, 259 Ark. 399, 533 S.W. 2d 215 (1976). In Lewis, citing Alexander, we said:

Ordinarily, where the wife is less at fault, or where she is the injured party, she would be entitled to the statutory award of an interest in the husband’s property, but her wealth and income are to be considered in determining whether she receives the full amount.

The rationale of these cases is that it is not an abuse of discretion when the chancellor reduces her interest below 1/3 when it is shown that the wife has substantial property and wealth in her own right in excess of her husband. For instance, in Alexander, the wife’s wealth ($3,000,000) was 3 times that of her husband. These cases are inapplicable here. It appears at the time of the divorce appellant’s only personal property of any significance was 7,040 shares of stock valued at approximately $52,800 and a $16,000 savings account. She had no other source of income. The appellee’s 78,000 shares of stock, held in his name, alone is valued at approximately $550,000 to $620,000. This is in addition to his interests in two trusts, the values of which are not disclosed. Obviously, appellee’s wealth is substantially in excess of appellant’s.

No cases are cited to us, and we find none which hold that the statute exempts property acquired during the marriage by inheritance or gift. Perhaps that is true because it clearly states that the wife, as here, is entitled to a 1/3 interest absolutely of the personal property which the husband has at the time of a divorce. We cannot construe it to mean other than what it clearly says. In Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1979), we said:

When the will of the General Assembly is clearly expressed, we are required to adhere to it without regard to consequences . . . Divorce and the incidental rights, responsibilities and liabilities of a divorce, are purely statutory.

Here we must hold that appellant was entitled to 1/3 absolutely of appellee’s approximately 78,000 shares of stock.

Appellant also argues that she is entitled to 1/3 interest in two trusts in which appellee has a percentage interest. She distinguishes the situation here from that found in Kroha v. Kroha, 265 Ark. 170, 578 S.W. 2d 10 (1979), in which we held the husband’s interest in the unvested corpus of a testamentary trust was not personal property subject to a statutory claim by the wife in divorce proceedings. In Kroha, the appellee was entitled to payments from the trust but not to the corpus during his lifetime unless it was exhausted by monthly payments to the beneficiary. He could not mortgage, assign or otherwise dispose of the trust assets. In the case at bar, by the Articles of Trust, the appellee, as a beneficiary of the John R. Gross Trust, has the right to sell and assign his undivided interest in the trust. This right of alienation distinguishes appellee’s interest from the interests in Kroha, supra, Fenney v. Fenney, 259 Ark. 858, 537 S.W. 2d 367 (1976), and in Knopf v. Knopf, 264 Ark. 946, 576 S.W. 2d 193 (1979). Therefore, here we hold the appellant is entitled to 1/3 absolutely of appellee’s interest in the John R. Gross Trust, since we view his interest as being personal property due to its alienability. There appears to be no evidence concerning the alienability of the other trust, the Raymond F. Gross Trust. We cannot say that the chancellor erred in failing to award appellant any interest in that trust.

Appellant further contends that the court’s award of $450 for child support (SI50 per child) payments per month until age 18 and $200 per mor h alimony is insufficient. She claims the child support should be increased to $900 per month ($300 per child) and $600 per month alimony. At the time of trial, the twin girls were 17 and seniors in high school. The son was 14. The parties were married 19 years. His gross income in 1975, 1976, and 1977 ranged from $71,326 to $82,-819. His monthly net cash available ranged from $3,852 to $4,574 during that period. He will continue claiming his children as dependants for income tax purposes. He was ordered to pay all current marital debts and a $10,000 loan made by his mother to appellant which was used to pay the parties’joint income tax and home repairs. He was ordered to continue certain trusts and life insurance on his life for the benefit of his children. Neither the amount of these trusts nor the value of the life insurance policies were in evidence. He was made responsible for any medical, dental, and hospital expenses for their children and for their college expenses. The marital residence, which appellant has use and possession of, is valued at $125,000. Appellant’s income from her savings account and stock would be around $200 per month before our modification of the property division. She has no special education or training to equip her to compete in today’s job market. Appellant, 47 years old, testified that her monthly bills were between $40 and $60 for gasoline, between $40 and $120 for electricity, about $15 per month for water, between $40 and $120 for gas, and about $25 per month for telephone. Appellee, however, is required to make the mortgage, insurance, and tax payments and major repairs on the residence. Whenever it is sold, he is to be reimbursed for the principal paid on the mortgage, and any insurance and repair payments.

The court has wide discretion in setting the amount of alimony and child support, and we will not reverse that award unless there is a clear abuse of discretion. In view of our mooification of the property division, we cannot say that the award is presently inadequate to meet the needs of appellant and their children.

Appellee contends that the statute, under Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 2d 306 (1979), is unconstitutional. However, this argument was not made below, and we will not consider constitutional arguments raised for the first time on appeal. Hatcher v. Hatcher, supra; and Williams v. Edmondson, 257 Ark. 837, 520 S.W. 2d 260 (1975).

Affirmed as modified.

We agree: Harris, C.J., and Fogleman and Purtlk, JJ.

Byrd, J., dissents as to the modification.


author: Darrell Hickman, Justice.

text:
    Les ANDERSON v. STATE of Arkansas Ex Rel. John A. CRAIN, Prosecuting Attorney
    79-28
    583 S.W. 2d 14
    Opinion delivered June 25, 1979
    (In Banc)

      Harry L. Ponder and //. David Blair, for appellant.

      Jim Stallcup, Prosecuting Attorney and Paul E. Hopper,

      Deputy Prosecuting Atty., for appellee.
   Darrell Hickman, Justice.

The only issue in this case is the validity of an order issued by the Sharp County Circuit Court, without any notice, to remove the appellant, Les Anderson, from office as county judge.

We have no difficulty finding the order invalid and reversing the judgment of the trial judge.

The prosecuting attorney filed, what was claimed to be a petition for a writ of quo qarranto, with the circuit court to remove Andersonn. it was claimed that Anderson had forfeited his office because of a conviction in the United States District Court for conspiracy and mishandling federal funds. Proof of the conviction was attached to the petition.

The same day the petition was filed, the court entered an order removing Anderson from office as county judge and declared the office vacant.

Also, the same day, the court directed a summons to be issued which read, “Les Anderson to appear within six days from this date and show whether cause may exist for setting said order of removal aside.” The appellant moved to have the summons quashed and the order set aside because notice was not given as required by Ark. Stat. Ann. §27-308. The trial judge overruled that motion and the appellant argues on appeal the sole issue of notice.

The State, being the appellee, argues that either no notice was required because of the nature of a quo warranto action, or the lack of it was cured by the issuance of a summons, or the question is moot since Anderson did not seek reelection and no longer serves or seeks to serve as county judge.

(¿uo warranto literally means by what warrant. Generally, it was an action used by the Crown of England to question by what authority one held an office, or franchise; it was used to remove an usurper from office. Black’s Law Dictionary, Fourth Addition.

The Supreme Court was given the power of this writ in the Arkansas Constitution, art. 7, §4. The essence of the writ was granted to the circuit courts in art. 7, §27 of the Arkansas Constitution, which reads:

The circuit court shall have jurisdiction upon information, presentment or indictment to remove any county or township officer from office for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance or nonfeasance in office.

In addition, Ark. Stat. Ann. §34-2201, et seq., gives the circuit courts power to, and defines the procedure for, removing an usurper from office. It was on the basis of these laws that the prosecuting attorney proceeded.

Nowhere have we found, nor has the State offered, any authority for a circuit court to remove a county officer without any notice. In one case, cited by the State, the respondent was given less than 20 days to show cause why a writ of quo warranto should not be issued. State ex rel. v. McDiarmid, 26 Ark. 480 (1871). This case was before our present civil code. Notice is the foundation of due process of law and since there was none, the order is invalid.

The summons in this case did not read that a writ could be issued; it said one had been issued and the burden was on Anderson to show whether it should be set aside. The order of removal had already been entered, therefore, the “notice” was not really notice.

Sometimes we find an issue moot on appeal, depending upon the circumstances and issues of the case. We choose to treat this case as a matter of sufficient importance to warrant a decision of the merits.

Reversed.

Byrd, J., dissents.


author: John I. Purtle, Justice. Conley Byrd, Justice,

text:
    MBPXL CORPORATION v. FIRST NATIONAL BANK OF SILOAM SPRINGS, et al
    79-13
    583 S.W. 2d 18
    Opinion delivered June 25, 1979
    (In Banc)

      Gilker & Swan, and Richard D. Ries, for appellant.

      Jones, Gilbreath & Jones, for appellees.
   John I. Purtle, Justice.

On April 5, 1975, appellant issued its check payable to Donald L. Nelsen in the amount of 327,939.22. On April 11, 1975, G. A. Boucher endorsed Nelsen’s name, after executing an affidavit that he was authorized to endorse the check, with appellee bank and deposited the proceeds in an account owned by Nelsen and Boucher. May 28, 1975, Nelsen notified appellee that Boucher was not authorized to endorse his name on the check. In order to try to settle the dispute between Nelsen and Boucher and determine its responsibility in the matter, appellee filed a Bill of Interpleader in the Benton County Chancery Court on June 4, 1975. On the same day the chancery court granted a release from liability to appellee pursuant to Ark. Stat. Ann. § 27-816 (Repl. 1962). Donald L. Nelsen and G. A. Boucher, as well as N & B Ranch Corporation, in which they were the principal stockholders, entered into a stipulation and agreement in the interpleader action whereby they settled their dispute and the assets and liabilities of N & B Ranch Corporation were distributed between them. Part of the agreement required Nelsen to assume liability for the $27,939.22 check which had been endorsed by Boucher. Thereafter, on June 18, 1975, Nelsen, after stating Boucher forged his endorsement, persuaded appellant to issue a second check in the same amount as the one which Boucher had endorsed and deposited. Chase Manhattan Bank charged appellant’s account with both checks and refused to recredit appellant’s account with either check because appellee rejected Chase’s demand for recourse on the first check which had been endorsed by Boucher.

On January 5, 1978, appellant filed suit in the Benton County Circuit Court against appellee (First National Bank of Siloam Springs) and Don (Donald) L. Nelsen to recover the proceeds of the first check which Boucher had endorsed. Appellant alleged appellee was liable for a forged check endorsement pursuant to Ark. Stat. Ann. § 85-3-417 and in the alternative Nelsen was liable for conversion of the proceeds of the check on the grounds he had misrepresented that his endorsement on the check was forged. Nelsen defaulted and judgment was entered against him on February 22, 1978, for the sum of $27,939.22, plus interest and costs. Appellee defended the action and cross-complained against Nelsen 'and Boucher. On April 4, 1978, after the issues were joined and interrogatories and request for admission were filed and answered, appellee filed a motion for summary judgment. In support of the motion for summary judgment appellee relied upon the response to interrogatories and request for admission, as well as the affidavit of Boucher that he was authorized to endorse the check which was payable to Nelsen. Appellant opposed the motion and introduced the affidavit of Nelsen that Boucher forged Nelsen’s name. Therefore, there were filed two affidavits stating facts which were in direct conflict. In granting the motion for a summary judgment the court assumed there was a forgery of the first check but held it was immaterial to the decision inasmuch as negligence on the part of appellant in issuing the second check was the proximate cause of its loss and therefore appellant was barred from recovery against appellee. From the judgment granting appellee’s motion for a summary judgment appellant appeals to this Court.

We should mention that neither the payee bank nor the drawer of the check was made a party to the interpleader action nor were they notified of the results. The drawer did not notify the depository bank before issuing the second check.

Since this case was decided by summary judgment, we first must consider whether it was proper to do so. Without citing authority, which we deem unnecessary, we state that if there are any reasonable grounds upon which fair minded persons might differ left before the court after the evidence, pleadings and affidavits are received then a summary judgment should not be granted. In the present case we have the affidavit of Nelsen stating Boucher was not authorized to endorse the check and the affidavit of Boucher stating he had such authority. Therefore, there was an unresolved issue of fact before the court as to whether the check was forged or not. If it were not a forgery, the ultimate results would probably be different than if it were a forgery. The trial court assumed a forgery in an obvious good faith attempt to resolve the ultimate decision without the necessity of a complete and costly trial. We believe this constituted error in spite of the sincere effort to resolve the matter.

We do not decide the matter of liability pursuant to the Uniform Commercial Code because it must first be determined if there were a forgery. The cases are in conflict as to whether the depository bank is liable to the drawer except in restrictive endorsement situations. Underpinning & Foundation Construction, Inc. v. Chase Manhattan Bank, N.A., (N.Y. Ct. of App., February 8, 1979), 25 UCC Reporting Service 1104. If there were no forgery then the damage in this case was a result of the second draft being issued as recited in the trial court’s decision. There is no claim so far as the record shows that the second check was forged. If there were a forgery in the second check, then it is obvious there could have been negligence by the drawer which substantially contributed to the forgery. We do not have the benefit of all the facts surrounding the issuance of the checks by the drawer and therefore cannot make a decision relating to whether there were negligent acts contributing substantially to the forgery, if there were a forgery. It is possible the issuance of a check could contribute to a forgery but the facts of the case would be determinative.

Under the facts as presented, we reverse the summary judgment and remand the case to the trial court to determine whether there was a forgery and, if so, did the drawer substantially contribute to the making of the endorsement. We do not preclude the court from considering other facts which may come before it or allowing amendments to the pleadings or bringing in additional parties to this case.

Reversed and remanded.

Harris, C.J., Byrd and Hickman, JJ, dissent.

Conley Byrd, Justice,

dissenting. The law under which appellant MBPXL Corporation seeks to hold liable the First National Bank of Siloam Springs is the Uniform Commercial Code, Ark. Stat. Ann. § 85-3-417(2) (Add. 1961), which provides:

“(2) Any person who transfers an instrument and receives consideration warrants to his transferee and if the transfer is by indorsement to any subsequent holder who takes the instrument in good faith that:
(b) all signatures are genuine or authorized; ...”

In connection with liabilities for forgeries and unauthorized signatures, the Uniform Commercial Code, Ark. Stat. Ann. § 85-3-404 (Add. 1961) also provides:

“(1) Any unauthorized signature is wholly inoperative as that of the person whose name is signed unless he ratifies it or is precluded from denying it; but it operates as the signature of the unauthorized signer in favor of any person who in good faith pays the instrument or takes it for value.
(2) Any unauthorized signature may be ratified for all purposes of this Article [chapter]. Such ratification does not of itself affect any rights of the person ratifying against the actual signer.”

In addition to the facts mentioned in the first paragraph of the majority opinion, MBPXL Corporation admitted that if it had checked with the First National Bank of Siloam Springs, when Nelsen presented his affidavit to it, that it would not have issued the second check to Nelsen.

Now in view of the fact that a bank is protected under Ark. Stat. Ann. § 85-3-417(2), not only when the signature to a check is genuine but also when it is authorized, I fail to see how any person can issue a second check for an alleged forged check without first checking with the person who allegedly took the forged signature.

The rights of a payee of a check against the maker should never be any greater than his rights against the person who allegedly forged the check. Nelsen by his written agreement with Boucher certainly by law ratified Boucher’s conduct in endorsing the check and thereafter had no right of action against Boucher for the alleged forgery.

Nor does it matter that neither MBPXL Corporation nor its bank, the Chase Manhattan, were made parties to the interpleader action. If Nelsen prior to the receipt of the check had left written authorization with the First National Bank of Siloam Springs to cash the check of MBPXL Corporation upon its presentation by Boucher, and Nelsen had subsequently made the same affidavit to MBPXL Corporation and obtained a second check, no one would contend that the First National Bank of Siloam Springs would be liable to MBPXL Corporation because neither it nor its bank, the Chase Manhattan, were notified of the prior written authorization of Nelsen. What is the difference between written authorization to the bank here involved and any written authorization prior to receipt of the check, so long as the First National Bank holds such authorization before MBPXL Corporation was called upon to issue the second check? I submit that under the Uniform Commercial Code there should be no difference.

For the reasons herein stated, I respectfully dissent.

Harris, C.J., and Hickman, J., join in this dissent.


author: John I. Purtle, Justice. John A. Fogleman, Justice,

text:
    Winfred MOSER v. STATE of Arkansas
    CR 79-25
    583 S.W. 2d 15
    Opinion delivered June 25, 1979
    (In Banc)

      Barron, Coleman & Barket, for appellant.

      Sieve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

On February 7, 1978, appellant was convicted of the crime of Possession of Marijuana with Intent to Deliver. This was a retrial after having a previous conviction reversed by this Court and remanded for a new trial. The information alleged appellant committed the offense sometime in October or November 1975 in Independence County Arkansas. Upon a finding of guilt the jury fixed appellant’s punishment at 5 years and a fine of SI0,000. From the conviction and sentence appellant brings this appeal.

THE TRIAL COURT ERRED IN ADMITTING TESTIMONY REGARDING A CRIMINAL OFFENSE FUAT ALLEGEDLY OCCURRED SEVERAL MONTHS PRIOR TO THE OFFENSE CHARGED IN THE CRIMINAL INFORMATION.

The state’s witnesses testified the alleged offense occurred sometime in December 1975 or January 1976. The information alleged the offense was committed in October or November of 1975. Witness Cox testified relative to a transaction wherein appellant sold him marijuana in June of 1974. 'I’his date was about 18 months prior to the offense for which appellant was being tried. Cox further stated he never did see appellant with marijuana but others had told him about it. The court sustained the objection to the hearsay but overruled the objection about the alleged offense in 1974 as going to show intent. The witness also testified he worked for appellant and was promised some marijuana for it and subsequently found marijuana in the glove compartment of his car. This incident apparently took place about July 1976. There were several other questions put to this witness relating to prior dealings of appellant in marijuana trade but no definite dates were given. The prosecuting attorney also asked the following questions:

Q. Do you recall telling me and these investigators in the Lawrence County Law Library in the Courthouse, Walnut Ridge, Arkansas, on August 16, 1976, that in the spring of that year Winfred Moser, when he would be drinking or would be high, that he would brag to you about how much money he was making selling marijuana, and that he would tell you that he wasn’t about to get caught because he was too smart for them?
A. I don’t remember that.
Q. And that the law wasn’t going to catch him because he was too sharp? Aren’t those the words you told me over there that day?
A. I don’t remember.

Although the court sustained appellant’s objection to the above two questions, the jury was not instructed regarding the testimony. Cox further testified he did other work for appellant and was paid in money and “pot”. The dates of these alleged crimes were never revealed.

The prosecutor also asked witness McGuire the following question:

Q. Miss McGuire, when, if ever, did Winfred Moser tell you where he was getting marijuana?

Objection to this question was sustained. However, the objection to the next question was overruled. The question was:

Q. Will you tell the jury whether or not Winfred Moser, while you were living here in Batesville, ever talked to you about going to Texas and getting a load of marijuana?

This witness further testified in response to the prosecutor’s question that at one time she saw appellant with several pounds of marijuana and that it was in another county and probably was in 1974 or 1975 at Norfolk, Arkansas. The prosecutor then asked the following question:

Q. Do you recall going on to testify that Winfred Moser brought marijuana here to the trailer four or five times?

This type of question was repeated to other witnesses and it would only lengthen the opinion to set them all out.

The general rule is that evidence of other crimes by the accused, not charged in the indictment or information and not a part of the same transaction, are not admissible at the trial of the accused. U.S. v. Moody, 530 F. 2d 809 (8 Cir.1976); Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225 (1969); and Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954). The purpose for exclusion of such evidence is to determine whether the accused committed the offense charged. This must be done to the satisfaction of the jury beyond a reasonable doubt. To allow evidence of other unrelated misconduct or crimes tends to allow the jury to be persuaded that if the accused is not guilty of the offense charged he ought to be convicted on account of the other activities. It is useless to state that such other evidence can only work to the prejudice of the accused at his present trial. When such other evidence is properly offered, it is only for the purpose of showing intent. In the present case proof of possession is presumed to be with intent. Therefore, these other alleged criminal offenses were not needed to show intent on the part of appellant. It is improper to permit evidence of other offenses if the prejudicial impact outweighs the probative value. Moody, supra.

We stated in Alford, supra:

“The issue of intent is theoretically present in every criminal case, and for that reason it is here that we are most apt to overlook the basic requirement of independent relevancy ...”
“What has happened is that the emphasis has shifted from evidence relevant to prove intent to evidence offered for the purpose of proving intent, by showing that the defendant is a bad man. If this transfer of emphasis is permitted, the exclusionary rule has lost its meaning.”

Also, the state’s other proof was that appellant actually sold the marijuana to one Parnell. This testimony was offered into evidence and the actual delivery, if believed, further satisfied the intent problem if there were one. Thus the only-purpose of the other alleged offenses and activities on the part of appellee would only serve to prove to the jury that appellant was a bad man who had dealt in marijuana for a period of years. We stated in Rios v. State, 262 Ark. 407, 557 S.W. 2d 198 (1977):

“It was clearly error for the trial court to admit the evidence of other sales or delivery of drugs to simply prove Rios made a delivery on May the 4th. Therefore, we will reverse the judgment of the trial court and remand this case for new trial.”

See also Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913 (1971), wherein we stated proof of other crimes is never admitted when its only relevancy is to show that the accused is a man of bad character who is addicted to crime.

We are not unaware of the provisions of Ark. Stat. Ann. § 28-1001, Uniform Rules of Evidence, Rule 404(b) (Supp. 1977). The alleged other activities of appellant were never shown to have been a part of the present transaction nor were they related so closely in time to be of any value to the jury in determining intent in the instant case. Each case necessarily stands upon its own particular facts and circumstances. Therefore, the evidence of other crimes as presented in this case was unnecessary to prove intent and constituted reversible error.

In Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976), relied on by the state, we did not hold that a prior sale of a controlled substance by the defendant is always admissible to show intent when he is charged with possession of a controlled substance with intent to deliver. There we answered the arguments that were made, but we evidently considered that a true issue of fact was involved.

Here there is no such issue. The same section of the Controlled Substances Act makes it an offense to deliver a controlled substance and to possess it with intent to deliver. The punishment is the same. Ark. Stat. Ann. § 82-2617 (Supp. 1977). In the case at bar the state proved actual delivery, by-testimony that the witness Parnell bought 16 bags of marijuana from the defendant Moser for $160. There could be no question about the defendant’s intent, any more than there was in Alford, supra, a rape case cited in Cary, supra. In such a situation the state cannot create a fictitious issue of intent by-charging possession with intent to deliver and use that device as a basis for proving prior sales of a controlled substance by the accused.

THE TRIAL COURT ERRED IN FAILING TO GRANT A DIRECTED VERDICT WHERE THE STATE FAILED TO CORROBORATE ACCOMPLICE TESTIMONY.

Appellant further argues a directed verdict should have been granted because all the evidence offered was by accomplices. We believe it was a question of fact, at least as to witness Van Drimmelen, as to whether he was an accomplice or not. We held in Satterfield v. State, 245 Ark. 337, 432 S.W. 2d 472 (1968), that whether a witness is an accomplice to a crime is, generally speaking, a question of fact for the jury. At least, if the facts are in dispute, it is a mixed question of law and fact. Therefore, we cannot say as a matter of law, as the facts were presented in this case, that Van Drimmelen was an accomplice. If he were not, then his testimony is somewhat corroborative to the others. One witness was charged as a result of the same facts and another granted immunity. These two were accomplices and a conviction on their testimony alone would have been error. Therefore, it was not error in refusing to direct a verdict in favor of appellant.

In view of our opinion on these points, we do not consider the other points as they are not likely to occur on retrial.

Reversed and remanded.

Fooeeman, J., concurs.

John A. Fogleman, Justice,

concurring. I agree with the result and all that is said in the majority opinion. I should like to point out, however, that Rowland v. State, 262 Ark. 783, 561 S.W. 2d 304, is probably more directly to the point on conditions on admissibility of evidence of prior sales of controlled substances where the charge is possession with intent to deliver than Cary v. State, 259 Ark. 510, 534 S.W. 2d 230. But it is also true that there was a genuine, not fictitious, issue of fact as to intent in Rowland, and it was clearly recognized that relevancy may turn upon the question of remoteness in time - a matter addressing itself to the sound judicial discretion of the trial judge.