author: John A. Fogleman, Chief Justice.

text:
    William D. GADDY, Commissioner of Revenues, State of Arkansas v. DLM, Inc.
    80-148

      609 S.W. 2d 6
    Supreme Court of Arkansas
    Opinion delivered December 8, 1980

      James R. Eads, Jr., Joseph V. Svoboda, Timothy J. Leathers, Martha S. Stephenson, Cassandra Wilkins-Slater, and Robert J. DeGostin, Jr., by: H. Thomas Clark, Jr., for appellant.

      Friday, Eldredge & Clark, by: A. Wyckliff Nisbet, Jr., for appellee.
   John A. Fogleman, Chief Justice.

This case involves the interpretation and construction of the Arkansas Gross Receipts Tax Act of 1941, Act 386 of 1941, as amended, which is digested as Ark. Stat. Ann. § 84-1901 et seq (Repl. 1980). The Commissioner of Revenues, then William D. Gaddy, assessed appellee, DLM, Inc., $30,072.43 as gross receipts tax for the audit period of May 1, 1974 through July 31, 1977. DLM, Inc., is an Oklahoma corporation authorized to do business in Arkansas with its principal office and place of business at Malvern, Arkansas. It is engaged in the sale of dock levelers. A dock leveler is an iron or steel loading device that bridges the space between the loading docks at motor freight terminals and warehouses and trucks being loaded.

The assessment was made on sales of dock levelers to common carriers who picked up the dock levelers in Arkansas, pursuant to bills of lading. The Commissioner of Revenues takes the position that the sales were Arkansas sales subject to the gross receipts tax. DLM contends they are interstate sales and not subject to the tax. DLM protested the assessment and requested an administrative hearing. After the Arkansas Revenue Department Hearing Board had sustained the assessment in its entirety, DLM, on January 5, 1979, brought suit in the Chancery Court of Pulaski County seeking to have the assessment set aside. On March 14, 1980, that court entered a decree setting the assessment aside. On this appeal, the Commissioner of Revenues asserts the following points for reversal:

I
THE LOWER COURT ERRED IN HOLDING THAT NEITHER TITLE TO, NOR POSSESSION OF, THE GOODS WAS TRANSFERRED TO THE PURCHASER WITHIN THE STATE OF ARKANSAS PURSUANT TO THE MEANING OF THE ARKANSAS GROSS RECEIPTS TAX ACT, CODIFIED AT ARK. STAT. ANN. § 84-1903 (a), SINCE RECEIPT OF THE DOCK LEVELERS WAS TAKEN WITHIN ARKANSAS.
II
SINCE ARK. STAT. ANN. § 84-1902 (c) CLEARLY AND PRECISELY DEFINES A SALE, THE LOWER COURT ERRED IN RELYING UPON PARAGRAPH TWO (2) OF ARTICLE 27.
Ill
THE LOWER COURT ERRED IN HOLDING THAT THE CASE OF PRESSED STEEL CAR CO. V. LYONS, 1 ILL. 2d 95, 129 NE 2d 765, (1955), WAS NOT ON POINT BECAUSE THE SALES IN THAT CASE WHERE “F.O.B. SHIPPING POINT” AS OPPOSED TO THE TERMS BEING “F.O.B. POINT OF DESTINATION” IN THE CASE AT HAND.

There is no dispute about the facts. DLM manufacturers and sells hydraulic dock levelers. It also sells ramps, lifting hooks, rubber bump blocks and other accessories for dock levelers. The sales in question were made to truck lines who were common carriers having their principal places of business in other states. DLM maintains a sales force that travels throughout the United States calling on prospective customers, principally the major truck lines operating as common carriers. As a result of sales calls, orders are received by telephone and mail by DLM at Malvern, where they are accepted and confirmed. The goods ordered are banded, packaged and prepared at Malvern for shipment by various motor carriers. The sales contracts require delivery f.o.b. destination outside Arkansas. Bills of lading were prepared on a form prescribed by the Interstate Commerce Commission. In that form there is a statement that the shipper (DLM) is obligated to deliver the goods to the point they are to be installed and to install them. DLM is responsible for risk of loss in transit and for satisfactory installation of the equipment. The goods are picked up by common carriers, having authority from the Interstate Commerce Commission, at DLM’s place of business in Malvern. The sales in question are those in which the goods were picked up by the purchaser in Arkansas, either at Malvern or at some other point to which another carrier had brought them.

The dock levelers were guaranteed by DLM for one year. DLM employs independent contractors to install them. As soon as DLM makes certain that levelers shipped have arrived at their destination, the independent contractor is advised to proceed with the installation. DLM is paid after installation is complete.

The Arkansas gross receipts tax of 3 percent is levied upon the gross proceeds or gross receipts derived from sales of tangible personal property. Ark. Stat. Ann. § 84-1903 (a) (Repl. 1980). Sale, as defined by the statute, means the transfer of title or possession of tangible personal property for a valuable consideration, “regardless of the manner, method, instrumentality or device by which the transfer is accomplished.” Ark. Stat. Ann. § 84-1902 (c) (Repl. 1980). As appellant points out, the determining issue is whether either title or possession was transferred from DLM, Inc., to the purchasing carrier when the carrier received the property within the State of Arkansas. We agree with the chancery court that neither title nor possession was transferred to the purchasers when they, as common carriers, picked up the goods they had ordered.

Appellant relies principally upon St. Louis, Iron Mt. & S. Ry. Co. v. Citizens Bank of Little Rock, 87 Ark. 26, 112 S.E. 154, in which it was held that a bill of lading is both a receipt and a contract and that, as a receipt, it is prima facie but not conclusive evidence of the facts recited. Since a bill of lading is a receipt, appellant argues, this means that possession is transferred and, if possession is transferred, a sale has occurred within the meaning of Ark. Stat. Ann. § 84-1902 (c). Appellant reads too much into the opinion on which he relies. The action in that case for recovery of the value of cotton delivered by the railway company without surrender of the bill of lading issued for it. Of course, the issuance of a bill of lading is a receipt by the carrier. There is no question about receipt of the goods. The question here is whether the receipt was given as a carrier or as the purchaser of the goods and the decision relied upon by appellant has no application here. We have heretofore held that the statutory definition of sale does not include every transaction in which there is a transfer of possession for a consideration. See Harvey v. Southern Wooden Box. Inc., 253 Ark. 290, 486 S.W. 2d 65. The purpose of the transfer of possession is important. The delivery here .was for the purpose of transportation of the goods to the place where they would be installed. The bills of lading were on standard forms.

Appellant also relies upon Pressed Steel Car Co. v. Lyons, 7 Ill. 2d 95, 129 N.E. 2d 765 (1955), in which the Illinois Supreme Court held that a tax, imposed upon the sale of goods, applied to goods sold to a railroad and shipped via the purchaser under standard bills of lading f.o.b. point of origin. The precise issue there was not the exact issue here. It was whether Illinois could levy a tax on a sale to a common carrier who receives delivery under a contract for the shipment of goods shipped to purchasing common carriers under standard uniform bills of lading in light of the commerce clause of the United States Constitution. The Illinois court said that the question was whether the state was compelled by the commerce clause of the federal constitution to treat railroads who carry outside the state the goods they purchase within it differently from others who do the same thing. We are not faced with that question.

Assessment of the facts in the case which are pertinent to the inquiry here presents some difficulty. The orders by the railroads were placed by the Chicago office of four of the five railroads. Some of the orders specified that the freight be prepaid. On others the goods were shipped collect and the seller deducted freight from the invoice price. The Illinois Supreme Court said that the parties did not consider that the variables in the payment of freight affected the intrastate character of the transaction. The case was decided on the basis of a holding that the commerce clause does not require a state to recognize any dual personality of a carrier for taxing purposes.

A significant difference between the case before us and Pressed Steel is the obligation of appellee to install the equipment after its arrival at its ultimate destination. In Pressed Steel, there was no similar obligation; the orders only specified that title, or title and possession, should not pass to the consignee until the goods reached their destination, or that the goods were subject to inspection at destination.

Regardless of the distinctions to be made between the Illinois case and this one, we find the logic of the California Supreme Court inStandard Oil Company of California v. Johnson, 24 Cal. 2d 40, 147 P. 2d 577 (1944) more convincing. The statutory definition of “sale” in that case was not materially different from the definition we are considering. In that case the seller delivered oil to a railroad, a commercial carrier, which was the purchaser, under standard bills of lading with the railroad named as consignee' with freight charges prepaid. The California court took the position that whether delivery to a carrier constitutes delivery to a buyer depends upon the intention of the parties as ascertained from the contract and circumstances of the case. As that court pointed out, ordinarily, unless a contrary intent appears, where a seller contracts to deliver goods at a given destination and does deliver them to a carrier consigned to the buyer f.o.b. point of destination, delivery to the carrier is not delivery to the buyer, and the carrier is the agent of the seller, not the buyer, in transporting the property. That court felt that the mere fact that the seller did not select a different carrier should not make the sale taxable in California. It was held that the intention of the parties was that the railroad receive the oil as a common carrier and the delivery to the railroad as a buyer did not occur until the oil reached its destination outside the state.

Under the holding of the California court and the view we take, there is no reason why the form of the transaction should be disregarded, if the transaction is bona fide, even though avoidance of the tax is a part of it. There is not the slightest suggestion that the transactions involved here were a subterfuge with intention to defraud the State of Arkansas of taxes which would otherwise be due it. There is no reason why a seller should be required to discriminate against its own customer in shipping goods purchased by that customer.

In the California case it appears that the goods, fuel oil, were usable at any time after they were surrendered to the carrier by the seller. The fact that the seller here had the contractual obligation to install the goods after they reached their destinations is not without significance, even though it may not be controlling.

Appellant’s argument that the executive construction of the statute by the Administrative Tax Hearing Board should not be disturbed except for cogent reasons or unless clearly erroneous, citing Cook, Comm’r. v. Wilson, 208 Ark. 459, 187 S.W. 2d 7, is not convincing here. Putting aside for a moment the fact that we find the board’s determination clearly erroneous, the argument overlooks two significant facts. The first one was also overlooked by appellant in its abstract of the record, i.e., testimony that DLM had been previously audited and found not liable for additional taxes, even though there was not any difference in the conduct of appellee’s business during that audit period and appellee had only paid the gross receipts tax on sale of goods destined to remain in Arkansas. The other is that, in construing a statute, any doubt about its imposition of a tax on a taxpayer must be resolved in favor of the taxpayer and against the taxing power. Heath v. El Dorado Golf & Country Club, 258 Ark. 664, 528 S.W. 2d 394; Cook, Comm’r. v. Southwest Hotels, Inc., 213 Ark. 140, 290 S.W. 2d 469; Wiseman v. Arkansas Utilities Co., 191 Ark. 854, 88 S.W. 2d 81. The express purpose to impose a tax upon a transaction must be so clear that no reasonable mind should conclude that the intent was otherwise. Cook, Comm’r.. v. Southwest Hotels, Inc., supra.

The decree of the chancery court is affirmed.

       As we see it, the only significance of § 2 of Article 27 of appellant’s regulations is its recognition of this general rule.


source: Caselaw Access Project

license: Public Domain

text:
    Charles MORTON and Ailene MORTON v. Raymond WILEY, d/b/a WILEY GRAIN AND CHEMICAL COMPANY
    80-246
    609 S.W. 2d 322
    Supreme Court of Arkansas
    Opinion deliverd December 8, 1980.

      Mobley & Smith, by: William F. Smith, for appellants.

      Laws & Swain, P.A., by: William S. Swain, for appellee.
   John A. Fogleman, Chief Justice.

Appellants, Charles and Ailene Morton, operated a service station in Atkins, Arkansas. On May 8, 1975, Charles Bryant drove into the station in his truck, running on a rim. He had a new 7.50 X 16 tube type tire which he had just purchased from appellee, Raymond Wiley, doing business as Wiley Grain and Chemical Company, which he wanted mounted in place of the flat tire on his truck. Don Morton, one of the two sons of appellants, who assisted them in the operation of the station, put the tire on the truck, but called his father when he could not get it to take air. Morton, who is legally blind but can “read a ruler” and “count money,” attached an expander to the tire and it began to take air. As he leaned over the gauge, checking the pressure, the tire exploded injuring him severely about the head and shoulders. Later, it was discovered that appellee had sold Bryant the wrong size tire for the tire rim. One of the issues was whether Bryant or appellee was responsible for this. The Mortons brought suit against appellee for damages sustained by Morton when the tire exploded. The jury denied the Mortons any recovery. On appeal the Mortons allege eight points of error. We find no reversible error and affirm.

I

Appellants initially argue that there was reversible error in the solicitation of inadmissible testimony by appellee’s attorney in the cross-examination of appellee, who had been called by appellants in their case-in-chief. Appellee’s attorney questioned him concerning a conversation he had had with one of appellants’ attorneys, Mr. Mobley. The conversation had been mentioned on direct examination in response to a question posed by Mobley to appellee relative to the procedure in selling a customer a product the customer specifically requested. Appellee stated that he usually sold a customer making a specific request exactly what he asked for without going into details of how the product would be used and for what. To illustrate this response appellee recounted an incident where Mobley and his partner, Mr. Smith, came into appellee’s store and asked to purchase 10-20-10 fertilizer. Appellee related that he did not ask Smith any particulars as to the size of the lawn or the nature of the use, he merely sold Smith what he had requested. In answering the question by appellants’ attorney, Wiley had stated that this incident occurred a day or two after Mrs. Morton had come to Wiley’s place of business and asked for the tire, which Wiley had retrieved from the Morton’s station within an hour after the explosion. Wiley said that he had refused to let Mrs. Morton take the tire, but had told her she could come and look at it at any time.

The objectionable question was:

What else did Mr. Mobley tell you when he came down to see you that day and asked for that tire?

Appellee was well into his response and had said that Mobley had said what he was going to do and that the tire companies had a lot of money, before appellants objected on the grounds that the question was meant to elicit self-serving testimony. At this point, the trial judge dismissed the jury and allowed appellee’s attorney to make a proffer of the testimony he hoped to bring out through this line of questioning. The proffer revealed that appellee would testify that Mobley approached him and told him that he (Mobley) was just trying to help the Mortons out, that tire companies had a lot of money and that he was going to proceed to get them money to take care of their obligations. Appellee said that he asked Mobley why he did not forget the whole thing. The court held this testimony irrelevant and inadmissible. The trial resumed, after the jury was reseated, and Mobley called his next witness. At no time did appellants move for a mistrial or request that the court give an admonishing instruction. The trial judge sustained appellant’s objection, but was not asked to do more. We do not feel that the drastic remedy of declaring a mistrial would have been warranted, even if appellants had moved for that relief. We cannot agree with appellants that the question and answer had obviously been rehearsed. In light of the trial judge’s favorable ruling on the objection, it is likely that he would have given an admonition to the jury if one had been requested.

Appellants also contend that appellee’s attorney committed reversible error by attempting to mislead the court and jury by arguing that the testimony was admissible on the ground that appellant’s attorney had asked Wiley about statements made or a conversation had in the presence of appellant’s attorney, citing Ark. Stat. Ann. § 28-1001, Rule 103 (2) (c), relating to the conduct of proceedings so as to prevent inadmissible evidence from being suggested to the jury. No objection, request for admonition or motion for mistrial was made on this ground. We will not consider it because it is an issue first raised on appeal.

Appellants rely on International Harvester Inc. v. Hardin, 264 Ark. 717, 574 S.W. 2d 260. In that case Rule 615 of the Uniform Rules of Evidence [Ark. Stat. Ann. § 28-1001, (Repl. 1979)] was expressly violated, on a continuing basis, throughout the trial, by the court’s improperly excluding a witness from the courtroom, over appellant’s objection. We held that the error could not be considered harmless, so we found it necessary to reverse. The evidence to which appellants objected here was held inadmissible. In the absence of a request by appellants for an admonishing instruction and in view of the trial court’s ruling in their favor, any error committed in this respect could not be the basis for reversal.

II

Appellants next argue that the court abused its discretion in forbidding appellant’s attorney, on redirect examination, from eliciting an explanation of an answer given by Mrs. Morton on cross-examination. Appellee’s attorney had asked Mrs. Morton whether it was true that she had hired legal counsel within three weeks of the accident. She responded that she sought legal counsel when she saw how much her husband was suffering. Appellee’s attorney interjected and asked the witness to respond to his question. Appellants’ attorney intrerposed and insisted that she be allowed to answer the question. The trial judge ruled that the witness should answer the question, and, if the answer needed an explanation, she could explain after answering and directed appellee’s attorney to repeat the question. The examination continued and Mrs. Morton said that she had “more or lesss” employed the attorneys representing appellants to assist in any claim they might have when she and the attorneys went to Wiley’s place of business seeking to obtain the tire. Upon further inquiry she said that these attorneys had not told her to keep up with bills and drug bills or that they would be important later. Appellant’s attorney then interrupted, telling the witness that she had previously started to make an explanation. Appellee’s attorney objected and the trial judge told appellant’s attorney that he would have an opportunity to examine her after cross-examination was concluded. On redirect examination, appellant’s attorney asked Mrs. Morton what had occurred to cause her to contact legal counsel and, when an objection was made, the circuit judge questioned the relevancy of the inquiry and sustained the objection after appellants’ attorney had said that he sought to show that the reason Mrs. Morton had employed counsel was that she had called Wiley to get the tire and he would not let her have it and would not sell it to her.

The trial judge had a great latitude of discretion in deciding questions of relevancy. We would have to say that his ruling affected a substantial right of appellants before we could say that there was error. Ark. Stat. Ann. § 28-1001, Rule 103 (a) (Repl. 1979). We cannot do this. Appellee’s attorney was questioning appellants’ failure to present medical bills. We agree with the trial judge that it made no difference why she employed counsel or when.

Ill

Appellants object to a statement made by appellee’s attorney as he objected to a question posed by appellants’ attorney to Charles Wilson, a tire merchant in the community. Wilson asked if, in his opinion, a 17-year-old boy would notice the difference in trying to fit the wrong size tire on the wrong size rim. The statement was:

We will object to that question, Your Honor, because whether or not a seventeen year old boy — if they had a seventeen year old boy operating this machine, that’s just the risk they took.

When objection was made to this statement, the trial judge promptly ruled in appellant’s favor and admonished the jury not to consider the statement, and appellee’s attorney apologized. Appellants contend that this was insufficient to cure the erorr but they not request more. As justification, they cite Missouri Pac. Ry. Co. v. Glidewell, 199 Ark. 1187, 137 S.W. 2d 237. There the opposing attorney on voir dire had asked the veniremen if they would have any prejudice against his counterpart even though ‘he was a republican.,’ The court admonished the jury not to consider this remark, but on appeal we felt that the question may have evoked prejudices and biases too great to be cured by an admonition. We reversed and remanded for a new trial. A mistrial is an extreme and drastic remedy that will be granted only if justice cannot be served by a continuation of the trial. Foots v. State, 258 Ark. 507, 528 S.W. 2d 135; Back v. Duncan, 246 Ark. 494, 438 S.W. 2d 690; Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366. (1980). Any prejudice here was sufficiently cured by the admonition. To say the least, it was not so great or inherently prejudicial as to excuse appellants from moving for a mistrial.

Appellants argue that if they had requested a mistrial in this instance, the wrong would have been reemphasized. We are not impressed with this contention; as appellee points out, a mistrial may be requested at the bench, out of the hearing of the jury, without any resulting prejuduce. It is anomalous for counsel to avoid requesting a mistrial, when appropriate, because of a fear of compounding a wrong done to his client as prejudicial as he claims this one to be.

In Foots we addressed a situation similar to that here. The deputy prosecuting attorney had made some objectionable comments in his opening statement. The trial court admonished the jury to disregard the comments but did not grant a mistrial. On appeal we stated that such a situation does not warrant the granting of a mistrial as the jury is not only admonished to disregard the statement but it is instructed by the court that statements of counsel are not evidence and are not to be considered so. We find this case supportive of our conclusion here that a mistrial, even if requested, would not have been warranted.

IV

The next point involves the trial court’s exercise of discretion in the realm of cross-examination. Appellants contend that the trial court erroneously limited their cross-examination of appellee’s expert witness, Bernie Bower, general manager of a tire and battery organization servicing 135 dealers in Arkansas. In Bower’s role as general manager he is called to upon to teach and train dealers on the sale and installation of the brands of tires his company carries. Bower, after testifying on direct examination as to how he would mount and install the tire in question, was asked on cross-examination how he would determine the size tire to be sold to a customer. He stated that if the customer were a man, he would ask him the size tire he wanted and would accept his word on it. However, if a lady came in to buy a tire he would go out and check her car to determine the correct size. Counsel then attempted to pursue further hypothetical examination by asking what Bower would do if the customer were a 17, 18 or 19-year-old boy. Bower attempted to respond, qualifying his answer with the admonition that in most operations ‘we’ do the installation ‘ourselves.’ Appellants’ counsel interjected that the hypothetical question was limited to the operation of a store, and did not concern the mounting of tires. At this point the trial court put a stop to that line of questioning as going beyond the scope of cross-examination.

Appellants argue that the question should have been permitted in order to show that the witness was not basing his opinion on any reasonable basis, citing Wallace v. Williams, 263 Ark. 702, 567 S.W. 2d 111. There was no evidence that Charles Bryant, the buyer, was a teenage male so the question did not relate to a material fact at issue. Concededly the question was hypothetical. The court had allowed appellants to ask their hypothetical question with relation to men and women. We cannot see the necessity of pursuing the treatment of specific age brackets within each sex. In Wallace the opinion testimony erroneously insulated from impeachment on cross-examination, concerned the amount of medical bills and treatment the injured party would require; it served, in effect, as the basis of the damages. Here the manner in 'which Bower treated those of his customers who were teenage boys was not material.

In Arkansas State Highway Comm’n. v. Dean, 247 Ark. 717, 447 S.W. 2d 334, an eminent domain action, we found that limiting cross-examination of a real estate appraiser to two to four comparable sales from a list of 250 he had introduced on direct examination, was an abuse of discretion. However we warned: “We do not mean to say that the court should have permitted a detailed interrogation about each of the 250 sales studied by Barnes.” Once the procedure used by Bower in dealing with men as opposed to women customers had been established, it was not abuse of discretion to prohibit appellants from pursuing specific age categories within each sex without some showing that the buyer, Bryant, fell into that group. We will not reverse the trial court’s discretion in limiting cross-examination unless we find gross abuse. Arkansas State Highway Com’n. v. Cutrell, 263 Ark. 239, 564 S.W. 2d 213; Henry v. Landreth, 254 Ark. 483, 494 S.W. 2d 117; Gustafson v. State, 267 Ark. 278, 580 S.W. 2d 853. We do not find that here.

V

Appellants next assert error in the trial court’s refusal to permit their asking Betty Wiley, appellee’s ex-wife, whether or not she was still in love with appellee. It is their contention that the jury was entitled to this information in order to properly weigh all the testimony of Mrs. Wiley. They insist the question went to any bias Mrs. Wiley might have had in testifying. The jury had been made aware that Betty Wiley was married to appellee at the time Charles Bryant bought the tire; in fact, she was the salesperson who wrote up the sale. The sales tickets, an original and a duplicate, were introduced through her.

We cannot see how appellants were prejudiced. When the trial judge ruled that the question was improper, appellants’ attorney stated that the purpose of the question was to show the present relationship between the parties. The judge stated that he could do so otherwise. In spite of this, appellants’ attorney did not pursue the matter further. The court only excluded the particular question. We do not see how any substantial right of appellants was affected, since the court did not otherwise limit the examination as to the relationship between the parties. In listening to the testimony of Mrs. Wiley, the jury was aware that she and appellee had been married at the time of the sale and were now divorced. In the absence of an abuse of discretion, we affirm the trial court’s limiting of cross-examination. Henry v. Landreth, supra; Arkansas State Highway Com’n. v. Cutrell, supra. In view of the appellants’ tactical decision not to pursue the matter, they are in no position to argue an abuse of discretion.

VI

Neither of the parties desired to invoke the rule on sequestering witneses when inquiry was made by the trial court at the beginning of the trial. After appellee was called by appellants as their first witness and had given testimony identifying himself, counsel for appellee requested the rule. The court granted the request. Appellants claim that in so doing the court abused its discretion. We not that the rule is mandatory when requested by one or both of the parties. Uniform Rules of Evidence, § 28-1001 R. 615 (Repl. 1979); Chambers v. State, 264 Ark. 279, 571 S.W. 2d 79. Even if we should conclude that application of the rule was discretionary, rather than mandatory, at this stage of the trial, there was no abuse of discretion.

VII

Appellants assert error in appellee’s counsel’s comment on the law while cross-examining one of appellants’ witnesses, who as a seller of tires at retail, testified as an expert. The witness had responded to a question concerning his opinion as to appellee’s negligence as related to the limitation of appellee’s business only to the sale of tires and not to mounting them, as the witness did. The witness had stated that he did not feel that there is any less liability just because an individual’s business scope is different. At this point appellee’s counsel remarked:

Well, of course, liability is something the Court and the Jury will determine and that’s something that’s connected with cause . . .

Appellants objected but the judge did not rule on their motion stating that he had not heard the remark. The trial resumed. Here again appellants failed to pursue any remedy, either through admonition or mistrial.

The jury was instructed that remarks made by counsel during trial are not evidence and that it should disregard any arguments, statements or remarks of attorneys having no basis in the evidence. The type of remark made here would not have been sufficient to cause a mistrial. Wicks v. State, supra. It was argumentative, but not an incorrect or misleading statement.

VIII

Appellants finally argue the insufficiency of the evidence to support the verdict. They contend that the jury verdict is contrary to the preponderance of the evidence. We cannot sustain appellants’ contention since they are in error as to the applicable standard of review. In determining the sufficiency of the evidence to support a jury verdict, we affirm if there is substantial evidence to support the verdict. Thrifty-Rent-A-Car v. Jefferey, 257 Ark. 904, 520 S.W. 2d 304. If we apply the correct standard of review, we must nonetheless affirm, as there was substantial evidence to support the verdict.

The jury verdict is affirmed.

       Mrs. Morton had testified on direct examination that her husband’s medical bills totalled something in the neighborhood of $3,556.21, which was not supported by the bills in many instances, because she was not able to locate them.


author: George Rose Smith, Justice.

text:
    James Monroe AUSBURN, Jr. v. Freda Francene AUSBURN
    80-207
    609 S.W. 2d 14
    Supreme Court of Arkansas
    Opinion delivered December 8, 1980

      Henry & Duckett, for appellant.

      Lightle, Beebe, Raney & Bell, for appellee.
   George Rose Smith, Justice.

The parties to this divorce case owned two pieces of land as tenants by the entirety: a 10-acre tract on which their home was built and an unimproved 6-acre tract. In the divorce decree the chancellor awarded the larger tract to the wife and the smaller tract to the husband, ordered the parties to execute quitclaim deeds to carry the decree into effect, and equalized the property division by giving the husband a larger share of the personalty-

For reversal the husband argues that the chancellor should not have included the lands in an attempt to divide all the parties’ property, both real and personal, in an equitable manner pursuant to Ark. Stat. Ann. § 34-1214 (Supp. 1979). Instead, it is argued the real property should have been divided between the parties, as tenants in common, pursuant to Section 34-1215 (Supp. 1979). This theory of the case was not presented in any manner in the trial court. To the contrary, both parties’ proof was directed toward showing how all the property cc^uld best be divided. The decree was responsive to that proof. We do not permit a party, when the decree is not to his liking, to raise an entirely new theory of the case on appeal.

It is also argued that the chancellor erred in finding that an equal division of the property would be inequitable. As we read the record, however, the chancellor made no such finding Quite the opposite, he distributed a total of 15 enumerated assets, including the two tracts of land, and concluded that according to his valuation the wife received property worth $35,500.00 .and the husband received property worth $35,-665-39. We regard the division as fair; certainly we cannot say that the decree is clearly erroneous. Since an equal division was made, there was no necessity for the chancellor to state his reasons for not so dividing the property, under § 24-1214 (A) (1). Moreover, there was no request for such a statement nor any objection to its omission.

Affirmed.


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

text:
    STATE of Arkansas v. Richard Delaney BANKS
    CR 80-83
    609 S.W. 2d 10
    Supreme Court of Arkansas
    Opinion delivered December 8, 1980
    [Supplemental opinion on denial of rehearing delivered January 12, 1981.]

      Steve Clark, Atty. Gen., by: Catherine Anderson and Mary Davies Scott, Attys. Gen., for appellant.

      Central Arkansas Legal Services, by: Julius D. Kearney, Tom Ginger and James R. Cromwell, for appellee.
   George Rose Smith, Justice.

Richard Delaney Banks, aged 15, was arrested and charged by information with having committed aggravated robbery on January 21, 1980. Appointed counsel filed a petition for a writ of habeas corpus in the same proceeding, bringing in the county sheriff as Richard’s custodian, and asked that Richard be released because the juvenile court has exclusive jurisdiction over a 15-year-old defendant. After a brief hearing the trial court sustained that contention and ordered that Richard be released.

The State appealed on the broad ground that under the Criminal Code of 1975 a prosecuting attorney has discretion to charge a juvenile of 15, 16, or 17 years of age in the circuit court, municipal court, or juvenile court. Ark. Stat. Ann. § 41-617 (2) (Repl. 1977). That general contention was sustained with respect to a 17-year-old defendant in a case decided before this one was reached for submission. Sargent v. Cole, 269 Ark. 128, 598 S.W. 2d 748 (1980). Despite that decision the appellee insists that the trial court’s decision was correct, for either of two reasons.

First, it is argued that the statutes construed in the Sargent case are not controlling as to a 15-year-old, because Act 815 of 1979, amending the Juvenile Code with respect to the prosecutor’s discretion to charge in the circuit court, does not apply to a juvenile “over the age of fifteen (15) or older.” Ark. Stat. Ann. § 45-418 (Supp. 1979). Counsel, reading the quoted phrase literally and restrictively, argue that the reference to “over the age of fifteen or older” must be taken to mean sixteen and older. Cf. Allen v. Baird, 208 Ark. 975, 188 S.W. 2d 505 (1945). In that view the trial court’s decision would be correct, because Richard was only 15 when he was arrested and charged.

We are not persuaded that the legislature meant to resort to such a roundabout way of saying the simple word “sixteen.” Instead, we are convinced that an inadvertent use of both “over” and “older” occurred, the legislative intent being to refer to juveniles o/the age of fifteen or older. It is our duty, when the context so indicates, to substitute one word for another to give effect to what was evidently the intention of the legislature. We have, for example, read “fifth” to mean fourth,” “Commission” to mean “Incorporation,” and, of course, “may” to mean “shall.” Haney v. State, 34 Ark. 263 (1879); Garland Power & Dev. Co. v. State Board etc., 94 Ark. 422, 127 S.W. 454 (1910); Ark. State Racing Commn. v. Southland Racing Corp., 226 Ark. 995, 295 S.W. 2d 617 (1956).

Here the context leaves no doubt about the legislative intention. The Criminal code, supra, had given prosecutors discretion to charge minors of 15, 16, or 17 in any one of three courts. The Juvenile Code, however, also adopted in 1975, provided that similar discretion was permissible with regard to juveniles “over the age of twelve.” Ark. Stat. Ann. § 45-418 (Repl. 1977). Thus there was some inconsistency between the Criminal Code and the Juvenile Code. Act 815 of 1979, now relied upon by the appellee, was designed in part to remedy that situation, the emergency clause declaring that the statutory authority of juvenile courts was in immediate need of clarification.

Conclusive proof of the legislative intent is to be found in Act 815 itself. Section 11 of that act, in making a slight change in the pertinent section of the Criminal Code, again declared explicitly that a person who was 15, 16, or 17 at the time of the offense may be charged in the circuit court, municipal court, or juvenile court. § 41-617 (2) (Supp. 1979). It is wholly unreasonable to suppose that the legislature also intended, in Section 2 of that same act, to insert a contradictory exemption of 15-year-olds by the reference to a person over the age of 15 or older. Inasmuch as the two sections can readily be harmonized, we must do so. We therefore adhere to our conclusion in the Sargent case. (It is, of course, unnecessary for us to discuss appellee’s argument that the reference to a person over the age of 15 or older makes the statute void for vagueness, for when properly interpreted it is not vague.)

Second, it is argued that the circuit court also had no jurisdiction because Richard was arrested on January 24 but not immediately taken before the juvenile court, as required by § 45-418 (Supp. 1979). That statute by its terms applies only when the juvenile is taken into custody “without a warrant.” Even if we construed it to be mandatory, a violation of such a statute does not require dismissal of the charges. Bolden v. State, 262 Ark. 718, 561 S.W. 2d 281 (1978). On January 28 the prosecutor filed the present information and obtained a bench warrant for Richard’s arrest, which was served on January 28. Consequently there is no want of jurisdiction in the circuit court.

Reversed and remanded.

Supplemental opinion on denial of rehearing delivered January 12, 1981

George Rose Smith, Justice,

on denial of rehearing. In the appellee’s original brief in this case counsel relied upon the opinion in Kent v. United States, 383 U.S. 541 (1966), to support their argument that under Arkansas law the juvenile court has exclusive jurisdiction over juveniles aged 15, 16, and 17. That broad contention was rejected in Sargent v. Cole, 269 Ark. 121, 598 S.W. 2d 748 (1980), cited in our opinion in the present case.

In a petition for rehearing it is argued that under the Kent decision the appellee was entitled as a matter of due process of law to a judicial hearing before the prosecuting attorney could elect to file an information in the circuit court rather than to proceed in the juvenile court.

There are various answers to this contention. First, it was not raised in the trial court, nor do we perceive that it was within the issues raised by the appellee’s petition for a writ of habeas corpus. Second, Kent interpreted an act of Congress that applied to the Juvenile Court of the District of Columbia and explicitly required a “full investigation’’ before that court waived jurisdiction. We do not interpret the opinion as reading that provision of a federal statute into the Fourteenth Amendment. Third, in any event the position now urged by the appellee would have to be supported by proof relating to issues of fact not raised below, not considered by the trial court, and not pertinent to this appeal by the State upon a question of law.

Rehearing denied.


text:
    Edward LACY, Jr. v. STATE of Arkansas
    CR 80-137
    609 S.W. 2d 13
    Supreme Court of Arkansas
    Opinion delivered December 8, 1980

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

      Steve Clark, Atty. Gen., by: Victra L. Eewell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant Lacy was charged with aggravated robbery and with being an habitual criminal with four prior felony convictions. He was convicted by a jury and sentenced to life imprisonment. He contends that the trial court erred in admitting into evidence two statements made by him after he was taken into custody and, second, that the State failed to adduce sufficient corroboration of the testimony of Edward Sherman, an accomplice. We find no merit in either contention, nor any other reversible error.

For the State, employees of an El Dorado store testified that Lacy held them up on the night of October 13, 1979. When one of the employees, Jewell Darden, reached under a counter for a hammer, Lacy pointed his pistol at Darden and snapped the trigger twice. The gun failed to fire. Lacy, pursued by Darden, ran out of the store, got into a waiting car, and drove off with another person. Sherman, the accomplice who drove the car, gave testimony identifying Lacy as the robber.

Sherman was quickly arrested and implicated Lacy. When Lacy learned that the police were looking for him, he called in and asked that his cousin, Officer Moody, pick him up. At a Denno hearing Moody testified that he did pick up Lacy, took him to police headquarters, and booked him. Moody, in filling out an arrest report, obtained routine information from Lacy, such as his address, date of birth, and place of employment. When Moody told Lacy that he was being charged with armed robbery, Lacy made , the first of the statements in question: “How could I be charged when I haven’t taken anything?” The second statement was made a short time later, when Lacy was washing his hands after having been fingerprinted. He then saw the accomplice, Sherman, also in custody, and said to Officer Murphree: “I don’t know what you’re talking to him for. He didn’t have anything' at all to do with this.” Neither of the officers was interrogating Lacy when the statements were made. To the contrary, Officer Moody testified that he did not normally participate in interrogations, and Officer Murphree said he merely showed Lacy where to wash his hands.

It is argued that the statements were inadmissible, because Lacy was in custody and no Miranda warnings had been given. True, but the important point is that Lacy was not being interrogated as a suspect, with respect to his possible guilt, when the statements were made. Both statements were spontaneous. On this issue the case is controlled by the Supreme Court’s decision earlier this year in Rhode Island v. Innis, 100 S. Ct. 1682 (1980). There Innis was arrested as a suspect and given Miranda warnings, but he asked for a lawyer. The court held that his spontaneous statements to the arresting officers were admissible, because the special Miranda safeguards are not required until the suspect is subjected to interrogation. The cases are parallel in that statements in response to interrogation would not have been admissible in either instance — here because the Miranda warnings had not been given, there because the suspect had responded to those warnings by asking for a lawyer. But the statements in both cases were spontaneous and therefore admissible.

Our holding in Reeves v. State, 258 Ark. 788, 528 S.W. 2d 924 (1975), does not support the appellant’s position. There is was undisputed that Reeves was interrogated by a police officer without having been warned of his rights; the disputed issue was whether he was under arrest. Here the situation is just the opposite: Lacy was indisputably under arrest, but he was not being interrogated. Not even the dissenting judges in Rhode Island v. Innis, supra, contended that Miranda warnings are required whenever a person is arrested. That necessity arises only when interrogation begins.

As to Lacy’s argument that Sherman’s testimony was not corroborated, a complete answer, is that Darden identified Lacy as the person who robbed him. Darden’s credibility on that point was of course an issue for the jury.

Affirmed.

Purtle, J., dissents.


author: Frank Holt, Justice.

text:
    Larry LIPSCOMB, a/k/a Thaddeus WILLIAMS, v. STATE of Arkansas
    CR 80-9
    609 S.W. 2d 15
    Supreme Court of Arkansas
    Opinion delivered December 8, 1980

      A. Wayne Davis, for appellant.

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

Appellant was convicted by a jury of aggravated robbery and sentenced to 15 years imprisonment.

Appellant first asserts the trial court erred in not making a pretrial determination of his fitness to proceed to trial. Although the court held a pretrial hearing on appellant’s motion contesting his competency to stand trial, at its conclusion the court stated he was taking the motion under advisement, the defense counsel could renew it at “an appropriate time, whenever you think it is necessary in the trial”, and he would rule on it. There was no objection to this procedure. At the close of all the evidence before the jury, the appellant renewed his motion for a ruling as to appellant’s fitness to stand trial, which the court denied.

Ark. Stat. Ann. § 41-606 (Repl. 197) provides:

If the defendant’s fitness to proceed becomes an issue, it shall be determined by the court. If neither party contests the finding of the report filed pursuant to section 605 [§ 41-605], the court may make the determination on the basis of the report. If the finding is contested, the court shall hold a hearing on the issue.

The proper procedure is for the trial court to make a decision at the time the issue is raised. Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979); and Gruzen v. State, 267 Ark. 380, 591 S.W. 2d 342 (1979). These cases hold that it is the duty of the trial court to make a determination of a defendant’s fitness to proceed to trial when it becomes an issue, and it is reversible error to leave the matter for the jury’s determination. In those cases the court made no ruling and left the issue to the jury to decide. Here, without objection, the court deferred the requested ruling on appellant’s fitness to proceed to trial and later did make an independent one when appellant’s counsel renewed his motion. In the circumstances, appellant has not demonstrated reversible error.

Appellant next contends that the trial court was wrong in failing to find him incompetent to stand trial. It appears appellant had been committed to the Missouri State Hospital in 1975 and in 1978 he left there without authorizaion. He came to Arkansas and shortly thereafter committed the alleged offense. Following formal charges, he was committed to our Arkansas State Hospital for a mental examination based upon his affirmative defense of insanity. The officials there advised the court that he was emotionally ill, suffering from schizophrenia, paranoid type. Two months later, the state hospital rendered an additional opinion to the effect that appellant had recovered from his previously diagnosed mental illness and was fit to proceed, being able to understand the charges against him and to assist his attorney in his defense. Contrary to this report, appellant adduced evidence, at the competency hearing, from a Missouri State Hospital psychiatrist that he was mentally incapable of understanding the proceedings against him and was unable to assist effectively in his own defense. An affidavit by appellant’s counsel and appellant’s testimony were to the same effect.

There is presumption of competence to stand trial, and the burden of proof of incompetence is on the defendant. Deason v. State, 263 Ark. 56, 562 S.W. 2d 79 (1978). There we also said: “The test of competence to stand trial is whether an accused ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.’ ” The trial court’s decision on competency requires an evaluation of the weight to be given the testimony, particularly when expert opinions are involved. The evidence was in conflict as to appellant’s competency to stand trial, and we cannot say there is insufficient evidence to uphold the court’s finding.

Appellant’s next contention is that the trial court erred in giving the state’s requested instruction on insane delusions. There was evidence that appellant experienced some delusions; for instance, “voices” told him he would marry Diana Ross, a noted singer, if he did certain things, such as the alleged offense, and if he did various other things, he would not marry her. The state requested and the court gave the following instruction:

The existence of an insane delusion is a defense to a crime only when the imaginary state of facts, if real, would justify or excuse the crime.

The appellant objected that “insane delusions” had not been raised as a defense and, furthermore, the instruction was taken from old cases and had no application to present law. The state relies on Bolling v. State, 54 Ark. 588, 16 S.W. 658 (1891); and Smith v. State, 55 Ark. 259, 18 S.W. 237 (1891), in support of this instruction. However, even in these cases, decided under prior law, we disapproved giving this instruction without guidance to the jury as to what would justify or excuse the crime. Here the court gave AMCI 4009, which is phrased in the language Ark. Stat. Ann. § 41-601 (Repl. 1977). That instruction reads:

A person is not criminally responsible for his conduct if at the time of that conduct, as a result of mental disease or mental defect, he lacked the capacity either to appreciate the criminility of his conduct or to conform his conduct to the requirements of law.

This statute, drawn from the Model Penal Code, replaces the former test of insanity in Arkansas, which was essentially the M’Naghten test. According to the commentary, its purpose “was to expand M’Naghten to include the “irresistible impulse’ theory, represented by the third-prong of the test in Bell v. State, [120 Ark. 553, 180 S.W. 195 (1919]. Section 41-601 (1) achieves the same effect through the use of the language ‘to conform his conduct to the requirements of the law.’ ”

In our view this recent statute is complete in setting out the tests to be applied in determining if a defendant is not guilty by reason of insanity and replaces the prior law on the subject. The test is whether or not the defendant could (1) conform his conduct to the law or (2) appreciate the criminality of his conduct. If a defendant was suffering from delusions at the time he committed the crime, these tests are sufficiently applicable. The insane delusion instruction is not in conformity with our present law, and we hold giving it constituted reversible error.

The appellant also contends the trial court erred in refusing to give his requested instruction on mental disease or defect. The court gave AMCI 4009, supra. Appellant’s requested instruction, however, added certain definitions as well as the three-pronged M’Naghten test formerly applied. He argues the jury was not given a complete definition of “mental disease or defect” nor of the word “appreciate” as used in the statute and the instruction, which was prejudicial to his defense particularly when considered in conjunction with the state’s instruction on insane delusions. As indicated, we have disapproved that instruction. Further, the instruction given, AMCI 4009, correctly recites the law as it relates to the defense of insanity. The court is not required to instruct the jury in every possible manner. Cobb v. State, 265 Ark. 527, 579 S.W. 2d 612 (1979). Furthermore, an AMCI instruction is the proper instruction to be given unless the trial judge finds it does not accurately state the law, as stated in our per curiam order of January 29, 1979. See Conley v. State, 270 Ark. 886, 603 S.W. 2d 415 (1980).

Finally, appellant contends the trial court erred in denying his motion for a continuance to allow him to procure the presence of an expert witness. In view of reversal, it becomes unnecessary to reach this issue.

Reversed and remanded.


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

text:
    Jerry SHELTON v. STATE of Arkansas
    CR 80-157
    609 S.W. 2d 18
    Supreme Court of Arkansas
    Opinion delivered December 8, 1980

      E. Alvin Schay, State Appellate Defender, by: Ray Hartenstein, Chief Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was charged with possession of a firearm by a felon, Ark. Stat. Ann. § 41-3103 (Repl. 1977) and being a habitual offender, Ark. Stat. Ann. § 41-1001 (Repl. 1977). Appellant pleaded guilty. However, he chose to leave the punishment to the jury. It assessed his punishment, as a habitual offender, at 7 years imprisonment and a fine of $10,000. Subsequently, upon a revocation hearing, the court revoked the suspension of his sentences in two previous convictions (3 years suspended on each of the 5 year concurrent sentences) and ordered them to run consecutive to the 7 year sentence imposed by the jury. The only issue raised on appeal is that it was impermissible to sentence appellant under the habitual offender act, because the firearm statute, the underlying charge, has its own enhancement provision. Therefore, his sentence should be reduced to the minimum provided by law under the firearm statute.

That statute, § 41-3103 (1) (a) (c) (4), provides in pertinent part:

No person who has been convicted of a felony . . . shall possess or own any firearm ... A person who violates this section commits a class D felony if he has been convicted of a felony; otherwise, he commits a class A misdemeanor.

Appellant asserts that to use his prior convictions for • enhancement .under the firearm statute and to invoke the habitual criminal act to further enhance his punishment constitute a violation of his constitutional right not to be twice placed in jeopardy, and it is contrary to the legislative intent in enacting the habitual offender act, § 41-1001. The state responds that this argument should not be considered, because it is raised for the first time on appeal. Even so, appellant insists that the issue should be addressed by the court, because it goes to the jurisdiction of the trial court and, therefore, no objection is necessary to preserve it for review, citing White v. State, 260 Ark. 361, 538 S.W. 2d 550 (1976), and the change on its face is constitutionally infirm, citing Menna v. New York, 423 U.S. 61 (1975). Further, appellant urges this court to consider the asserted error despite a failure to object, because it is necessary in order to avoid a clear miscarriage of justice, citing Wilson & Dancy v. State. 261 Ark. 820, 552 S.W. 2d 223 (1977); and Smith v. State, 268 Ark. 282, 595 S.W. 2d 671 (1980). Appellant argues that double jeopardy is applicable, citing Harris v. Oklahoma, 433 U.S. 682 (1977), and, further, application here of the habitual offender act is contrary to legislative intent, citing Rust v. State, 263 Ark. 350, 565 S.W. 2d 19 (1978), Simpson v. United States, 435 U.S. 6 (1978); and Heady v. Commonwealth, 597 S.W. 2d 613 (Ky. 1980).

Our general rule is well established that we do not consider an alleged rule when it is not presented to the trial court and is raised on appeal. Half acre & Duty v. State, 265 Ark. 378, 578 S.W. 2d 237 (1979); Jeffers v. State, 268 Ark. 329, 595 S.W. 2d 687 (1980); and Smith v. State, 268 Ark. 282, 595 S.W. 2d 671 (1980).

Here, the appellant and his counsel informed the court that he wanted to plead guilty and leave his punishment to the jury. The court asked him personally if he was aware that he could receive up to 7 years and a $10,000 fíne, or both, to which appellant responded in the affirmative. Upon the issue being submitted to the jury with his and his counsel’s approval, the jury assessed his punishment to the extent he had been warned. The court so sentenced him. No objection was ever interposed to the charges, to the submission of the issues to the jury, to sentencing, nor by a motion for a new trial.

In the circumstances, since the issue is raised for the first time on appeal, we do not consider it.

Affirmed.

Purtle and Mays, JJ., dissent.

John I. Purtle, Justice,

dissenting. I dissent because I feel the appellant was twice placed in jeopardy for the same offense. Double jeopardy is prohibited by both the state and federal constitutions. This was clearly established in two fairly recent cases. North Carolina v. Pearce, 395 U.S. 711 (1969); and Harris v. Oklahoma, 433 U.S. 682 (1977).

In the case before us the appellant was charged with possession of a firearm by a felon. He also was charged with being a habitual offender. He had previously been convicted twice on other nonviolent crimes. The fact that he was convicted on the two prior felonies elevated the innocent conduct of selling the firearms to that of a felony. Then the same two prior convictions were used to enhance the punishment resulting from the possession of the firearms. This same situation was considered by the Supreme Court of Kentucky in the case of Heady v. Commomcealth, 597 S.W. 2d 613 (Ky. 1980). The Kentucky court concluded that it was not the intent of the legislature to enhance a charge because of its involvement with a firearm and then increase the punishment a second time by the application of a habitual offender statute. That is exactly what the majority is doing in the present case.

In my opinion, any time a person is convicted and punished in a manner prohibited by the state or federal constitution it amounts to plain error and this Court should consider it on appeal, even if it is not argued in the briefs. Jurisdiction of the Court should be a matter which we will consider on any appeal without the necessity of the parties even arguing it.

Both sides appear to rely on Rust v. State, 263 Ark. 350, 565 S.W. 2d 19 (1978). A reading of the case would seem to sustain both arguments. At any rate, in Rust we did not deal with the same situation as we have before us in the present case.

Any way you look at this case it boils down to the fact that the possession of the firearm was the basis for both the conviction as a felony in possession of a firearm and for the enhancement as a habitual offender. This is, in my opinion, twice placing a person in jeopardy for the same offense. Therefore, I would reverse and remand or do as we did in the case of McDonald v. State, 266 Ark. 56, 582 S.W. 2d 272 (1979).

I am authorized to state that Mays, J., joins me in this dissent.


author: John I. Purtle, Justice.

text:
    ARKANSAS PUBLIC SERVICE COMMISSION v. LINCOLN-DESHA TELEPHONE CO., INC.
    80-167
    609 S.W. 2d 20
    Supreme Court of Arkansas
    Opinion delivered December 8, 1980

      Jeff Broadwater, for appellant.

      House, Holmes & Jewell, by: Edward B. Dillon, Jr., and Mayer, Brown & Platt, by: Wayne W. Whalen and Scott J. Davis, for appellee.
   John I. Purtle, Justice.

Lincoln-Desha Telephone Company, Inc. filed suit before the Arkansas Public Service Commission for a telephone rate increase in the amount of $120,619- After a hearing the PSC issued an order granting Lincoln-Desha a rate increase of $65,337 per annum. Appellee appealed the order of the PSC to the Pulaski Circuit Court. The circuit court determined that the PSC, by use of a “double leverage” method, had improperly prevented Lincoln-Desha from obtaining a satisfactory rate. The court found that the “double leverage” methodology was in itself arbitrary and discriminatory in violation of the statutes of the State of Arkansas and the Constitutions of the State of Arkansas and the United States. The court ordered the case remanded to the PSC with directions to properly fix and approve Lincoln’s return without regard to the double leverage.

On appeal the PSC argues for reversal that the trial court exceeded the scope of jurisdictional review of the Commission’s decision to recognize the double leverage concept and the court erred in holding that the Commission’s recognition of the double leverage concept was arbitrary, discriminatory and confiscatory. We agree with the contentions of the appellant.

On September 10, 1976, appellee filed an application with the appellant for an annual rate increase in the amount of $120,619- A hearing was held on the application on March 7, 1977, at which time the appellant granted appellee a rate increase of $65,337. The Commission recognized that Continental Telephone Company, Inc. was the parent company and owned all the stock of appellee. The appellant utilized the double leverage system in reaching its decision.

The appellee appealed the order to the Pulaski Circuit Court. In the circuit court it was disclosed that the order of the PSC allowed a 9.77% rate factor on the investments for Lincoln-Desha. Apparently, the PSC utilizes the double leverage method only in cases of a wholly owned subsidiary such as the appellee. The trial court reversed the PSC solely on the ground that it was improper to use the double leverage concept in figuring the rate of return. The court stated that double leverage as applied in this case was arbitrary and discriminatory and resulted in rates that did not permit appellee to earn a fair rate on its investments and was confiscatory in nature and violated the statutes of the State of Arkansas and the Constitutions of Arkansas and the United States.

Ark. Stat. Ann. § 73-229.1 (b) (Repl. 1979) provides that on appeal to the circuit court the findings of the PSC as to facts, if supported by substantial evidence, shall be conclusive. The review by the circuit court shall not be extended further than whether the Commission’s findings are so supported by substantial evidence and whether the Commission has regularly pursued its authority, including a determination of whether the order or decision under review violated any rights of the petitioner under the laws or Constitution of the United States or of the State of Arkansas. The technical rules of evidence do not apply in such cases. Section (d) of this statute provides for an appeal to the supreme court by any party to the circuit court action. The matter will be viewed in the supreme court in a manner applicable to other civil appeals from circuit courts.

The only question to be decided by this court is the validity of the methodology used by the Commission to determine the rate of return. The methodology used by the PSC is termed “double leverage.” It has been said that “double leverage is merely an extension of the concept of leverage to a parent-subsidiary corporate relationship.” New England Telephone & Telegraph Co. v. Public Utilities Commission, 390 A. 2d 8 (Me. 1978). Corporations are usually financed partly with debt capital and partly with equity capital. “Leverage” is a financial term used to describe the situation in which a corporation is funded by debt in addition to the equity supplied by the stockholders. A corporation is said to be “leveraged” to the extent that debt is included in its capital structure. The leverage arises from the advantage gained by equity holders through the rental of capital at a lower rate than the return they receive on their equity. Thus, we see that by use of leverage the equity owners are able to earn an over-all rate of return in excess of the cost of capital. The added earnings above the costs inure to the benefit of the stockholders as they then receive a higher rate of return than if the institution had been financed entirely by equity.

The limited review by the circuit court of a Commission’s decision is set out in Ark. Stat. Ann. § 73-229-1 (b) (Repl. 1979) and is partially described as follows:

. . . The findings of the Commission as to the facts, if supported by substantial evidence, shall be conclusive. The review shall not exceed further than to determine whether the Commission’s findings are so supported by substantial evidence, and whether the Commission has regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the petitioner under the laws or the Constitution of the United States or of the State of Arkansas. ...

Therefore, it may be seen that the scope of review by the circuit court is very narrow and limited. On the other hand, the discretion of the Commission is very broad. Hibbs v. Public Service Commission, 251 Ark. 130, 471 S.W. 2d 367 (1971); Town of Emerson v. Ark. Public Service Commission, 227 Ark. 20, 295 S.W. 2d 778 (1956). As previously stated, the primary concern before this court is whether the methodology used by the Commission resulted in a fair rate of return for appellee. The PSC also must take into consideration the effect the rate of return has on the ratepayers.

The double leverage method is but one of several used by the PSC in determining matters presented to them. It appears that double leverage has been recognized as a valid formula in New York, Iowa, Rhode Island, Maine, Texas, Wisconsin and Minnesota. This court approved the application, by the PSC, of the double leverage method in Southwestern Bell Telephone Co. v. Arkansas Public Service Commission, 267 Ark. 550, 593 S.W. 2d 434 (1980). In SWB v. PSC we held that the result reached, not the method employed, controls. Judicial inquiry is concluded if the total effect of the rate order is not unjust, unreasonable, unlawful or discriminatory. Federal Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591 (1944).

The PSC acts in a legislative capacity and not in a judicial one. Therefore, we view the orders of the Commission as having the same force as would enactment of the General Assembly. Bluefield Water Works & Improvement Co. v. Public Service Comm’n, 262 U.S. 679 (1923).

The rate of return as established by the PSC was 9-77%. The testimony indicated if the double leverage theory had not been used in this case the result would have been to allow Continental Telephone Company’s common equity holders to realize a return of approximately 16%. We should not be concerned with the methodology used by the Commission in arriving at the result. No public utility has a vested right to any particular method of evaluation. City of Fort Smith v. Southwestern Bell Telephone Co., 220 Ark. 70, 247 S.W. 2d 474 (1952).

We believe there was substantial evidence to support the finding of the Commission and the trial court was in error in holding that the double leverage method resulted in discrimination or confiscation of the appellee’s property. Therefore, the case is remanded to the trial court with directions to reinstate the order of the Public Service Commission allowing appellee to receive a rate increase of $65,337.

Reversed and remanded.


author: John F. Stroud, Justice.

text:
    W. L. PARTLOW v. ARKANSAS STATE POLICE COMMISSION
    80-206
    609 S.W. 2d 23
    Supreme Court of Arkansas
    Opinion delivered December 8, 1980

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

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   John F. Stroud, Justice.

This is an appeal by a former Arkansas State Trooper from the termination of his employment for an alleged violation of a rule of the Department. As we find ample evidence to support the rule violation, we affirm the action of the Commission and the Circuit Court.

On September 10, 1975, at the instruction of his sergeant, appellant took custody of a 1974 Yamaha motorcycle which reportedly had been stolen in Missouri. He thereafter prepared and filed a form indicating that the motorcycle had been seized and was being stored at a wrecker company in Marshall, Arkansas. However, due to a lack of space at the wrecker company, it was actually stored by appellant in a leased building near his residence in the country. He testified that he talked to his sergeant two or three months later and was told to hold the motorcycle and someone would come after it. No one did come, and appellant had the motorcycle licensed in his name in May of 1976 by inserting his name in a pre-notarized open title seized with the motorcycle and by presenting the title to the local office of the Department of Finance and Administration. Appellant admitted that he rode it in the country something less than 100 miles during the summer of 1976. In August of 1976 the Arkansas State Police Rules and Regulations were revised, providing in Rule 11, as follows:

No confiscated property, property held as evidence, property awaiting court disposition or other property not specifically or legally conferred to a member of this Department shall be converted by any member of this Department to the member’s use and/or benefit.

Appellant testified that when he became aware of Rule 11 he put the motorcycle back in storage and did not drive it again, although he did admit that he thereafter renewed the license in his name in 1977 and 1978.

Arkansas State Police investigators conducted an investigation into the circumstances surrounding appellant’s storage and usage of the motorcycle, resulting in his dismissal from the State Police by Colonel D. W. Harp, Director of the Department, for violation of Rule 11. Appellant appealed his termination to the Arkansas State Police Commission and, following a hearing on May 25, 1978, the decision of the director was affirmed. From that decision appellant appealed to the Pulaski County Circuit Court which, also, affirmed the decision to terminate his employment. Alleging that the circuit court erred in affirming the action of the Commission, appellant brings this appeal.

Appellant contends that the Commission’s findings were unsupported by substantial evidence and that its affirmance of his dismissal was arbitrary, capricious and characterized by an abuse of discretion. These contentions, if established, would justify reversal pursuant to the Administrative Procedure Act. Ark. Stat. Ann. § 5-713 (h)(5) and (6) (Repl. 1976). Conversely, appellee asserts that there was ample evidence to support appellant’s dismissal and that the action of the Commission was in all respects proper. It is well-settled that we must affirm the decision of an administrative agency if there is substantial evidence of record to support it. Substantial evidence is valid, legal and persuasive evidence; such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Jones v. State, 269 Ark. 119, 598 S.W. 2d 748 (1980); Pickens-Bond Const. Co. v. Case, 266 Ark. 323, 584 S.W. 2d 21 (1978). In reviewing the entire record of the hearing before the Commission, we find there was sufficient evidence adduced of appellant’s misconduct, particularly his own testimony, to support the findings of the Commission.

Appellant’s other contention, that the Commission’s action was arbitrary, capricious and abusive of its discretion, must be addressed within a more narrow standard of review. Administrative action may be regarded as arbitrary and capricious only where it is not supportable on any rational basis. First National Bank of Fayetteville v. Smith, 508 F. 2d 1371 (8th Cir. 1974); White Co. Guar. S. & L. v. Farmers & Merchants Bank, 262 Ark. 893, 562 S.W. 2d 582 (1978). To have administrative action set aside as arbitrary and capricious, the party challenging the action must prove that it was “willful and unreasoning action,” without consideration and with a disregard of the facts or circumstances of the case. First National Bank of Fayetteville v. Smith, supra; White Co. Guar. S. & L. v. Farmers & Merchants Bank, supra. In the present case, appellant admitted riding the motorcycle and licensing it in his name, but contended that he did nothing to violate Rule 11 after he became aware of its adoption. The record does not indicate the rule in existence before Rule 11 was adopted, but it is quite clear that appellant did violate Rule 11 by continuing to license the motorcycle in his name after the revision in the rules was made known to him. Therefore, it was not error for the Commission to uphold appellant’s dismissal from the Arkansas State Police, nor for the circuit court to affirm that decision.

Affirmed.


author: Richard L. Mays, Justice. John I. Purtle, Justice, John F. Stroud, Justice,

text:
    Robert Lee GOODALL v. Robert Hays WILLIAMS, Judge
    80-147
    609 S.W. 2d 25
    Supreme Court of Arkansas
    Opinion delivered December 8, 1980

      Robert E. Irwin and William J. Cree, Jr., for petitioner.

      Steve Clark, Atty. Gen., by: Debby Thetford Nye, Asst. Atty. Gen., and Joe Cambiano, for respondent.
   Richard L. Mays, Justice.

Petitioner, Robert Goodall, seeks a writ of prohibition to prevent the Conway County Circuit Court from trying de novo an appeal from the Arkansas Alcoholic Beverage Control Board by Conway County citizens who oppose an order by the Board granting petitioner a retail liquor license. The appeal was under Ark. Stat. Ann. § 48-311(E) (Repl. 1977), a part of the Thorn Liquor Law enacted by the legislature subsequent to the Administrative Procedure Act, Ark. Stat. Ann. § 5-701 et seq (Repl. 1976), another avenue of appeal, which expressly authorizes a de novo hearing. Since such hearings allow the circuit court to disregard the record below and try the entire case anew, petitioner contends that an appeal de novo from the Arkansas Alcoholic Beverage Control Board constitutes an unconstitutional exercise of executive powers by the judiciary. This issue was first raised in the circuit court by a motion to dismiss the appeal. When the circuit judge denied the motion, holding that the petitioner would have to establish his entitlement all over again, this petition followed.

The propriety of the writ of prohibition as an avenue of relief for petitioner under the circumstances alleged is not challenged by the respondent. A writ of prohibition is, of course, appropriate to relieve one from the onerous burden of litigation when the trial court is attempting to act wholly without jurisdiction or is threatening or about to act in excess of its jurisdiction. Midwest Lime Co. v. Independence Chancery Court, 261 Ark. 695, 706, 551 S.W. 2d 537 (1977).

We have had several occasions to comment on the scope of review of the circuit court of cases appealed from the Alcoholic Beverage Control Board pursuant to the Thorn Liquor Law, but in none of those cases was the constitutionality of de novo appeal challenged. Hewitt v. Gage, 257 Ark. 579, 519 S.W. 2d 749 (1975); Byrd v. Jones, 263 Ark. 406, 565 S.W. 2d 531 (1978); Jones v. Reed, 267 Ark. 237, 590 S.W. 2d 6 (1979). Of course we recognize that our state constitution divides governmental powers among three distinct departments: legislative, executive and judicial; each of which is prohibited from exercising powers properly belonging to either of the other two. Arkansas Constitution Article IV. Such a division of powers represents a familiar principle of our constitutional law, the enforcement of which is essential to preserve the orderly processes of government and its basic integrity.

Petitioner essentially contends that the issuance of liquor licenses is an exclusively executive function which cannot be delegated to the judiciary. Since a trial de novo allows the circuit court to substitute its judgment for that of the Alcoholic Beverage Control Board, petitioner asserts that such a trial sanctions judicial encroachment into an area constitutionally reserved to the executive.

The issue of the constitutional propriety of de novo review by the judiciary of administrative action primarily turns upon the character and legal status of the interests which are affected by administrative action. If the interests affected by administrative actions are constitutionally or statutorily preserved or preserved by private agreement, so that their enforcement is a matter of right, de novo review by the judiciary of administrative decisions altering these interests is appropriate. See Thornbrough v. Williams, 225 Ark. 709, 284 S.W. 2d 681 (1955); Civil Service Commission of Van Buren, Arkansas v. Matlock, 206 Ark. 1145, 178 S.W. 2d 662 (1944). On the other hand, if the interests affected are less than fixed or determined and their existence primarily depends upon executive or legislative wisdom, de novo review is inappropriate, and judicial review is basically limited to a determination of whether these interests have been arbitrarily or capriciously affected. See Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W. 2d 74 (1971). The doctrine of separation of powers therefore restricts the judiciary to a very limited review of those matters which are left to the wisdom of the executive in the application or execution of laws but imposes upon the judiciary the obligation to redetermine the matter when the executive redefines private rights.

Under Ark. Star. Ann. § 48-301 (Repl. 1977), the issuance of a liquor license depends upon the administrative determination of “public convenience and advantage.” It is not a determination which is judicially cognizable since the effort to obtain a permit hinges on executive discretion. Since the right of executive direction is constitutionally preserved, its exercise cannot be frustrated through the medium of trials de novo. We, therefore, hold that Ark. Stat. Ann. § 48-311(E) (Repl. 1977) is unconstitutional to the extent that it authorizes the circuit court to redetermine or disregard the factual base upon which the Alcoholic Beverage Control Board relies to issue a liquor license.

The writ is granted.

Purtle, J., concurs.

Stroud, J., dissents.

John I. Purtle, Justice,

concurring. I concur in the results reached by the majority; however, I would hold that a trial de novo as mentioned in Ark. Stat. Ann. § 48-311 (E) (Repl. 1977) means that the proceedings before the Commission and its findings and orders would be filed with the circuit court and considered along with any other evidence which was presented.

Apparently, there are two thoughts as to the meaning of a trial de novo. The case of Byrd v. Jones, 263 Ark. 406, 565 S.W. 2d 531 (1978), held that there were two methods of perfecting an appeal from the ABC decisions. One of those is § 48-311 (E) and the other is the Administrative Procedure Act of 1967, codified as Ark. Stat. Ann. § 5-713 (Repl. 1976). Although both these methods are available in appealing an ABC order, both of them require the case to be tried de novo in the circuit court.

I find nothing in Byrd v. Jones, supra, or in Jones v. Reed, 267 Ark. 237, 590 S.W. 2d 6 (1979), to prohibit the circuit court from considering the record of the hearing before the ABC Commission. Therefore, I believe that a trial de novo means the same regardless of which method is used to perfect the appeal. The record before the Commission should be presented to the trial court for consideration along with any other evidence the trial court deems proper for a correct resolution of the dispute.

John F. Stroud, Justice,

dissenting. I respectfully dissent from the majority opinion because I cannot agree that Ark. Stat. Ann. § 48-311 (E) (Repl. 1977) is unconstitutional. By trying the case de novo, the circuit court is required to determine a question of “public convenience and advantage,” but I find this no more of an executive decision that is required of the circuit court and this court in many other statutorily authorized de novo appeals and de novo reviews of decisions of administrative boards and commissions.

This court made perfectly clear in Byrd v. Jones, 263 Ark. 406, 565 S.W. 2d 531 (1978), that there are two methods of appealing from a decision of the Alcoholic Beverage Control Commission, and that the choice rests with the appellant. That opinion pointed out that the distinction between the two methods “is more than a mere matter of procedure.” The court acknowledged that the appellant there chose to seek an immediate decision by an appeal de novo under the Thorn Liquor Law rather than utilize the protracted procedure of seeking a review of the Commission’s findings under the Administrative Procedures Act. I think the time element differential sufficiently justifies the two appellate alternatives, but that should be a decision of the General Assembly and not of this court. I would deny the petition for Writ of Prohibition.


author: Per Curiam

text:
    Re: PETITION OF ARKANSAS BAR ASSOCIATION for Modification of Code of Judicial Conduct Relating to Broadcasting & Photographing Court Proceedings
    79-307
    609 S.W. 2d 28
    Supreme Court of Arkansas
    Opinion delivered December 8, 1980

      Arkansas Bar Association, by: Dennis L. Shackleford and Thomas M. Carpenter, and Owens, McHaney & Calhoun, by: James M. McHaney, Jr., for petitioners.
   Per Curiam

The Arkansas Bar Association has petitioned for a modification of Canon 3(a)(7) of the Code of Judicial Conduct. That Canon generally prohibits the broadcasting and photographing of trial proceedings.

The time has arrived, in our judgment, where it may be possible for a trial to be photographed or broadcast without disruption and without prejudice to the parties, witnesses, or the jurors. More than half the states have adopted one plan or another whereby this may be accomplished. The best practice seems to be the approval of a trial period during which trial judges may, under circumstances deemed appropriate and pursuant to rules we have adopted, permit broadcasting and photographing.

We do not perceive this matter to be a First Amendment issue. The right of the public to attend trials in Arkansas has been one consistently protected by this court. In fact, trials in Arkansas are probably more public than in any other state. This principle was first emphasized in Commercial Printing Co. v. Lee, 262 Ark. 87, 553 S.W. 2d 270 (1977), where we said:

The public has every right to ascertain by personal observation whether its officials are properly carrying out their duties in responsibly and capably administering justice . . .

Later in Shiras v. Britt, 267 Ark. 97, 589 S.W. 2d 18 (1979), we emphasized that the law in Arkansas provides that “The sittings of every court shall be public, and every person may freely attend the same.” Ark. Stat. Ann. § 22-109 (Repl. 1962).

There is no doubt that it is in the public interest for some trials to be available to the public either through photography or broadcasting. On the other hand, there are some trials that should not be broadcast or photographed. Cases of adoptions, guardianships and domestic relations fall in. the latter category. Arkansas law already protects these proceedings to a degree. Ark. Stat. Ann. § 22-404.1. That does not necessarily mean that these trials are closed. They are open to the extent they have always been open. However, these trials involve subjects that normally would be of no concern to the public and the broadcasting of which might result in harm to innocent people. Our primary concern in such cases is for the litigants, who are quite often before the court contrary to their wishes. The parties, their relatives and friends are present because the law requires it. Children who are not even present may be affected by these proceedings and could be harmed or hurt by the publicity. The child custody case is an example of such a case.

The workings of the courts should be known to the public and it is our judgment that the media have reached the stage of electronic sophistication that they can, in most cases, photograph and record trial proceedings without disruption and without prejudicing the rights of the parties. Yet there rests in the judiciary a role that is just as important as that of conducting trials in public and that is that decorum must be maintained in the courtroom. Furthermore, the courtoom must be a place where individuals can come for the solution of their problems in an atmosphere removed from the clamor of public passion and prejudice. The courtrooms of this land represent a place of tradition, dignity and objectivity. The preservation of such a forum is important if we are to maintain the principle that this a country of rule by law. That is the reason we leave to the trial judge the decision of whether it would be fitting and proper to permit photographing and recording of trial proceedings. While the parties and witnesses have to give their prior consent and while certain rules have to be followed before broadcasting and photograph should be permitted, the final decision must rest with the trial judge. It is on that office that the law places a duty and responsibility to see that the parties receive the full attention of the law, and that office must see that the law considers the case before it as the most important thing at that time. In other words, the courts are not in the entertainment business and obviously trials should be conducted with that in mind.

This is an experiment which we hope will work. However, both the judiciary and media must want it to work and that will require a degree of tolerance and flexibility by both parties.

We have modified the Arkansas Bar Association’s request to the extent that it will apply to all courts, municipal, trial or appellate, but it will not apply to juvenile court for obvious reasons. While the canon and the rules speak in terms of the judge or a trial, the application of the canon and the rules may be to the courts we have enumerated.

For a period of one year, beginning January 1, 1981, Canon 3 (A) (7) will be amended to permit broadcasting and photographing of trials. A committee of this court is formed and charged with the responsibility of monitoring this subject for this period of time. That committee will consist of Richard Mays as Chairman; Randall Williams, Circuit Judge; John Lineberger, Chancellor; Dennis Shackleford, attorney, and, Frederick K. Darragh, a layman.

CODE OF JUDICIAL CONDUCT

Canon 3: A JUDGE SHOULD PERFORM THE DUTIES OF HIS OFFICE IMPARTIALLY AND DILIGENTLY.

The judicial duties of a judge take precedence over all his other activities. His judicial duties include all of the duties of his office prescribed by law. In the performance of these duties, the following standards apply:

A. ADJUDICATIVE RESPONSIBILITIES

(7) A judge may authorize broadcasting, recording, or photographing in the courtroom and areas immediately adjacent thereto during sessions of court, recesses between sessions, and on other occasions, provided that:
(a) the participants will not be distracted nor will the dignity of the proceedings be impaired;
(b) all parties and attorneys, whether depicted or not, and all witnesses that may be depicted or recorded have given written consent; the jurors shall not be depicted nor recorded;
(c) the broadcasting, recording or photographing of any court proceeding will be in compliance with the rules adopted by the Arkansas Supreme Court.
(d) trials in juvenile court or concerning adoptions, guardianships and domestic relations shall not be subject to broadcasting, recording or photographing.

RULES

1. The court shall direct that the news media representatives enter into a pooling arrangement for the broadcast, recording or photographing of a trial. The media pool will first select one of its members to serve as pool coordinator. The media pool will establish its own procedures, not inconsistent with these rules or the wishes of the court, with the pool coordinator arbitrating any problems that arise. If a problem arises that requires the assistance of the trial court, the pool coordinator alone will be responsible for coordinating with the trial court. A plan for the placement of the broadcast equipment will be prepared and filed by the pool coordinator, subject to the final approval of the trial court.

2. The court retains ultimate control of the application of these rules over the broadcast, recording or photographing of a trial. Decisions made as to the details are final and are not subject to appeal. The court may in its discretion terminate the broadcasting, recording or photographing at any time. Such a decision should not be made in an effort to edit the proceedings but only as one necessary in the interest of justice.

3- The following persons or proceedings shall not be broadcast: minors without parental or guardian consent; victims in cases involving sexual offenses; undercover police agents or informers; witnesses, parties, or attorneys that have not given written consent to having their participation in the proceedings broadcast; in camera proceedings except with the consent of the court; other matters determined by the Arkansas Supreme Court to be restricted. Failure to abide by this provision can result in a citation of contempt against the news representative and his agency.

4. The media pool may have two cameramen in the courtroom during the course of a trial. One camerman will be responsible for still photography and one camera will be responsible for television photography. Both cameramen will remain in stationary positions outside the bar of the courtroom. Videotape recording and other electronic equipment not a component part of the earners will be located in an area remote from the courtroom. This area will be done designated by the trial court.

5. One additional audio system for radio broadcasting will be permitted provided that all microphones and related essential wiring will be unobtrusive and located in places designated in advance by the basic courtroom plan. The pool coordinator will permit the installation of a pickup distribution box to be located outside the courtroom area to allow additional agencies access to the audio feed.

6. Only television or photographic equipment that does not require distracting sound or light shall be employed to cover court proceedings. No artificial lighting device shall be employed in connection with television cameras. Any approved alterations in existing lighting or wiring will be accomplished by and at the expenses of the media pool.

7. Camera and audio equipment may be installed or removed only when the court is not in session. Film changes shall not be made while court is in session. No audio equipment will record conversations between attorneys and clients, or conversations between attorneys and the trial court held out of the hearing of the jury.

8. The Arkansas Supreme Court shall designate a committee to work with the bar and media groups to evaluate the success of the program. This committee shall also be responsible for setting the standards for the equipment that can be used during the course of court proceedings. Any matters that either bar or media groups wish to raise concerning the broadcast, recording or photographing of trials shall first be directed to this committee for decision, provided that legal issues raised on appeal shall continue to lie within the exclusive jurisdiction of the appellate courts.

Consent for Media Coverage

Consent is hereby given to broadcast, electronically record or photograph my participation in the proceedings of the above-styled case, pursuant to the rules for media coverage of trials approved by the Arkansas Supreme Court, and the plan for coverage of this trial approved by the trial judge. I understand that once this consent is entered it cannot be revoked without a showing of just cause.

Date: _

Judge

Attorney

Attorney

Party

Witness

[Sign the appropriate space]


author: Ernie E. Wright, Chief Judge.

text:
    Daniel ARCHER v. STATE of Arkansas
    CA CR 80-48
    609 S.W. 2d 91
    Court of Appeals of Arkansas
    Opinion delivered December 10, 1980

      Rhine, Rhine & Young, by: Robert E. Young, for appellant.

      Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee.
   Ernie E. Wright, Chief Judge.

Appellant was convicted by a jury of the offense of delivering a controlled substance with intent ot sell and a term of 8 years’ imprisonment was imposed. On appeal from the judgment he urges numerous points for reversal We are persuaded the case must be reversed on appellant’s contention the trial court erred in denying his pretrial motion to dismiss because he was not tried within three terms of court as required by Rule 28.1, and therefore we discuss only this point.

Appellant was arrested February 22, 1979, and was tried and convicted December 20, 1979, approximately ten months after his arrest. The lapse of time is well within the 18 months period presently prescribed by Revised Rule 28.1, which became effective July 1, 1980. However, the issue must be determined under the Rule as it existed in 1979, and at that time the Rule provided a defendant charged with an offense in the circuit court and held to bail or otherwise set at liberty, “shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized by Rule 28.3” Under Rule 28.2, the time began to run from the date of arrest. Rule 30 requires the absolute discharge of defendant not brought to trial within the prescribed time.

By statute the circuit court in Greene County is divided into three divisions. In State v. Messer, 269 Ark. 431, 601 S.W. 2d 857 (1980), the court noted the special problems presented by the requirement of a speedy trial under the Rule in circuits having multi-divisions, and stated that civil divisions of circuit courts share the responsibility of expediting the trial of criminal cases. The court reiterated the rule announced in Harkness v. Harrison, Judge, 266 Ark. 59, 585 S.W. 2d 10 (1979) and Alexander v. State, 268 Ark. 384, 598 S.W. 2d 395 (1980), that the terms of all of the various divisions of circuit court in a county must be counted under the speedy trial rule. With these decisions in mind, we take note of the statutory terms of each of the three divisions of circuit court in Greene County, and it is apparent that subsequent to the term of court under which appellant was arrested on February 22, 1979, additional terms of court began and ended before trial as follows:

2d Division: March 5, 1979 — September 3, 1979-
1st Division: May 21, 1979 — December 10, 1979.
3rd Division: June 4, 1979 — November 19, 1979.

Another statutory term of the 2nd Division began on September 3, 1979. The pre-trial motion was denied December 10, 1979, and thus it is clear when the motion was dismissed three terms of the circuit court of Greene County had begun and ended after appellant’s arrest. Under Rule 30 appellant was entitled to be discharged pursuant to his motion unless the time within which trial was required was extended by periods excluded by Rule 28.3.

On two occasions appellant’s appointed counsel petitioned to be relieved as counsel on the sole ground of conflict of interest in that the attorney involved in each of the petitions had counseled with another defendant whose interest conflicted with that of appellant. Appellee argues these motions were in effect continuances at the request of appellant. Neither of the petitions asked for a continuance of the case. Rule 28.3 authorizes the exclusion of delay resulting from a continuance granted at the request of the defendant or his counsel. We cannot say the petitions by court appointed counsel to be relieved can be considered as requests for continuances within the meaning of the rule. Garrison v. State, 270 Ark. 426, 605 S.W. 2d 467 (Ark. App. 1980).

Appellee further contends there was remodeling and reconstruction in the courtroom at sometime during the term of court beginning June 4, 1979, and ending November 19, 1979, and that those circumstances should exclude the term of court beginning in . September, 1979, and ending in march, 1980. This point was not raised until the hearing on the motion to dismiss held on December 10, 1979. No evidence was developed on the status of the courtroom and the record fails to disclose any continuance of the case as a result of docket congestion because of any exceptional circumstance as provided by Rule 28.3 (b). No motion for continuance was filed by the state from the date of appellant’s arrest to the date the motion to dismiss was denied. If a case is continued beyond the time provided by the rule, the record should timely show the reasons for such delay. Findings of the trial court entered after a motion to dismiss has been filed are not valid grounds for excluding a term of court in applying Rule 28.1. Harkness v. Harrison, Judge, supra.

We conclude the trial court erred in denying appellant’s motion for dismissal of he case.

The necessity for reversal and dismissal as provided by Rule 30.1 is unfortunate, and such result would not be necessary had the present revised Rule 28.1 (c) been in effect. The new rule permits a defendant to be brought to trial within eighteen months after arrest and eliminates the complications occasioned by the old rule which computed time by court terms. However, this case predates the revised rule which has no application.

Reversed and dismissed.