text:
    Aimer MARTINDALE, Jr. v. Charles L. HONEY
    76-410
    551 S.W. 2d 202
    Opinion delivered May 31, 1977
    (In Banc)

      James E. Davis, for appellant.

      Charles L. Honey, for appellee.
   Conley Byrd, Justice.

Following our decision in Martindale v. Honey, 259 Ark. 416, 533 S.W. 2d 198 (1976), appellee Charles L. Honey moved for summary judgment on the issue of whether he should account for the funds he received in his capacity as deputy prosecuting attorney. Attached to the motion for summary judgment was the appellee’s affidavit showing that in accepting the funds he had in good faith performed the duties of the office by and with the consent of the Nevada County Circuit Court in accordance with Ark. Stat. Ann. § 24-119 (Repl. 1962). Appellant without filing counter affidavits responded:

“The defendant is not entitled to summary judgment because there are material issues of fact which the court must determine. These issues include:
1. If the defendant’s alleged good faith does constitute a defense to an accounting to plaintiff, the Court must decide the fact question whether the defendant acted in good faith and for what time period during his appointment as deputy prosecutor the defense is available.”

Based upon the record, the trial court entered a summary judgment in favor of appellee.

For reversal appellant here contends the trial court erred because Article 5 § 10 and Article 16 § 13 of the Constitution of Arkansas prohibits a member of the General Assembly from exercising the power or receiving the remuneration of other state offices while he is a member of the General Assembly. In making these contentions, appellant recognizes that we have held to the contrary in Starnes v. Sadler, 237 Ark. 325, 372 S.W. 2d 585 (1963) and Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279 (1964), but contends that they have been overruled by Tedford v. Mears, 258 Ark. 450, 526 S.W. 2d 1 (1975) and Mackey v. McDonald, 255 Ark. 978, 504 S.W. 2d 726 (1974). We adhere to the position stated in Starnes v. Sadler, supra, as follows:

“Concerning the prayer of appellants for an accounting by appellees of any funds unlawfully received by virtue of holding dual offices, there is nothing in the record to justify a finding that appellants have acted with any fraudulent intent, or that they have even appreciated the possibility of their holding illegal offices. Under the circumstances, those appellants should not be required to account for funds received for services rendered and expenses incurred as Members of the involved State Boards.”

Mackey v. McDonald, supra, involved an action to prevent the future illegal expenditure of federal revenue sharing funds and did not involve a reimbursement of funds expended in good faith. Neither can appellant find any relief in Tedford v. Mears, supra, which involved a specific constitutional prohibition against an officer receiving emoluments of his office in excess of a stated sum per annum. Here the constitutional prohibition involved only Article 5 § 10 prohibiting a member of the General Assembly from being appointed or elected to any civil office during the term for which he was elected.

Of course, to adopt the position of appellant here, the State, notwithstanding appellee’s good faith performance, would be in the position of accepting a windfall. Such a construction should not be given to a constitutional prohibition unless the context thereof clearly indicates that such a penalty should be exacted.

Affirmed.

Hickman, J., concurs.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Jerry HILL v. STATE of Arkansas
    CR 77-42
    551 S.W. 2d 200
    Opinion delivered May 31, 1977
    (Division II)

      Givens & Buzbee, by: Art Givens, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

The trial court sitting as a jury found the appellant Jerry Hill guilty of burglary and theft. For reversal appellant raises the issues hereinafter discussed.

POINT I. Appellant contends that the evidence does not support either burglary or theft in that he did not enter the premises which were “likely to contain persons” for the purpose of committing therein an offense punishable by imprisonment.

Burglary is defined, Ark. Stat. Ann. § 41-2002 (Ark.

Crim. Code 1976), as follows:

“A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein an offense punishable by imprisonment.”

The crime of theft which is punishable by imprisonment is defined, Ark. Stat. Ann. § 41-2203 (Ark. Crim. Code 1976), as follows:

“A person commits theft of property if he: (a) knowingly takes or exercises unauthorized control over . . . property of another person, with the purpose of depriving the owner thereof; or. . . .”

The term “enter or remain unlawfully” as used in the burglary statute is defined, Ark. Stat. Ann. § 41-2001(3) (Ark. Crim. Code 1976), as follows:

“(3) ‘Enter or remain unlawfully’ means to enter or remain in or upon premises when not licensed or privileged to do so . . . .”

An “occupiable structure” is defined, Ark. Sat. Ann. § 41-2001(1) (Ark. Crim. Code 1976), as follows:

“(1) ‘Occupiable structure’ means a vehicle, building, or other structure;
(a) where any person lives or carries on a business or other calling; ... .”

The record shows that Rodney and Lloyd Bise own and operate Bise Auto Sales and Bise Body Shop on Highway #79 in Stuttgart, Arkansas. Appellant was regularly employed as a policeman for the City of Stuttgart. He was also a part-time employee of Bise Body Shop. The building housing the body shop was broken into on April 16, 1976. That incident was investigated by Rodney Bise and appellant at approximately 1:15 a.m. Later that morning about 3:00 a.m. appellant returned and removed from the building some money that Lloyd Bise kept in a box in the bathroom. When Lloyd ascertained that the money was missing he called appellant who told him that he knew nothing about the money. A few days later appellant returned the money claiming that he only took the money for safe keeping and as a prank or joke on his friend Lloyd Bise.

Under the evidence there is no question but that appellant entered a business building at 3:00 a.m. when it was not open for business. We therefore conclude that there is substantial evidence to support the trial court’s conclusion that he unlawfully entered a building when not licensed to do so.

Perhaps a closer factual issue exists as to the purpose for which appellant took the money. However, when we consider the conversations between appellant and Lloyd Bise as to who the likely suspects were and whether finger prints could be lifted together with the circumstances under thich the money was returned, we cannot say that there was no substantial evidence to support the trial court’s finding that a theft occurred when appellant took the money.

POINT II. Appellant also contends that the judgment is void because of the clerical error in showing that the offense was committed on April 26th when all the proof showed that it was committed on April 16th. While appellant is correct about the date, he does not demonstrate how he has been prejudiced by the erroneous date inserted in the judgment. We do not reverse a judgment for harmless or nonprejudicial irregularities, Underdown v. State, 220 Ark. 834, 250 S.W. 2d 131 (1952). We consider the matter of the erroneous date to be both harmless and non-prejudicial.

Affirmed.

We agree: Harris, C.J., and Fogleman and Hickman, JJ■


author: Frank Holt, Justice.

text:
    Wilbur JOHNSON v. STATE of Arkansas
    CR 77-32
    551 S.W. 2d 203
    Opinion delivered May 31, 1977
    (Division I)

      Bob Frazier, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury convicted appellant of second degree murder and assessed his punishment at 21 years in the State Department of Correction. Appellant first argues, through court appointed counsel, that the court’s instruction, based upon Ark. Stat. Ann. § 41-2246 (Repl. 1964), was erroneous because this statute was repealed effective January 1, 1976 by the enactment of the new Arkansas Criminal Code, Act 1975, No. 928, § 3 (Ark. Grim. Code § 41-101, et seq. [1976]). The alleged offense was committed approximately one year before the effective date of the Code. § 41-102 (3) provides that any offenses committed before the effective date of the Criminal Code are to be prosecuted under the appropriate statute or law which existed at the time of the alleged offense. § 41-102 (5) specifically preserves any repealed statute for the purpose of authorizing prosecution of an offense which was committed when that statute existed. However, § 41-102 (4) gives a defendant, who is charged with an offense predating the Code, the option of presenting his defenses either by the Code or the pre-existing law. To do so, however, it is necessary for a defendant to file a timely motion electing to have “the construction and application of any defense to such prosecution governed by the provisions of this Code. ...” Since no such election appears here, the preexisting law, § 41-2246, was applicable to appellant’s defenses and not the provisions of the Code.

Appellant also argues that the instruction given by the court on self-defense is insufficient to satisfy the due process requirements of the Fourteenth Amendment as delineated by Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 508 (1976). Here appellant contends that Mullaney dictates that the court’s instruction should have required the prosecution to prove beyond a reasonable doubt the absence of circumstances of mitigation when the issue, as here, is properly presented. Appellant also offered and was refused an instruction to that effect. We cannot agree that Mullaney is applicable. There the issue was whether the prosecution could be relieved of proving a required element of the alleged offense. It was held that the prosecution must prove every essential element of the crime and, therefore, it was error to shift the burden to defendant to prove he was acting in the heat of passion in order to reduce the charge from murder to manslaughter. In the case at bar, the jury was instructed that the state had to prove all elements of the crime charged beyond a reasonable doubt. Therefore the prosecution was not relieved of any burden of proof and appellant had only his proper burden of proving an affirmative defense; i.e., self-defense. Where, as here, the instructions given properly placed the burden of persuasion as to an affirmative defense on appellant and left intact the state’s burden of proving beyond a reasonable doubt the essential elements of the crime, the instruction is not erroneous. Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73 (1977).

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Roy, JJ.


author: Elsijane T. Roy, Justice.

text:
    Sam JONES v. John HARDESTY et al
    76-379
    551 S.W. 2d 543
    Opinion delivered May 31, 1977
    (Division I)
    [Rehearing denied July 5, 1977.]

      Brown, Compton & Prewett, by: Robert C. Compton, for appellant.

      Potter & Potter, by: David J. Potter, for appellees.
   Elsijane T. Roy, Justice.

On February 21, 1969, appellant Sam Jones instituted an action in Lafayette Circuit Court against appellees John Hardesty and Howard Richardson seeking judgment for $30,000 on a promissory note. After answer, and upon motion the cause was transferred to Chancery Court and there appellees filed a counterclaim and also third party complaints.

On March 23, 1972, testimony was heard on the complaint and counterclaim but continued for a hearing on the third party complaints until April 20, 1972.

By decree dated April 12, 1972, and filed April 17, 1972, appellant was awarded judgment against appellees in the principal sum of $30,000 with interest, attorney’s fee and costs and appellees’ cross complaint was dismissed.

On April 20, 1972, the trial of appellees’ third party complaints commenced, neither appellant nor his attorney being present.

Before the testimony began attorney for appellees asked the court to withhold “the effect and entry of the original judgment until the entire case can be adjudicated and then our ten days’ notice to appeal would run. We would have thirty days to appear and ten days to file notice of appeal.”

The court in response to this request stated, “. . . [I]n order that time for appeal might coincide, regardless of which party prevails, the Court would state that he considers the Order of April 12, 1972, to be an Interlocutory Order and not a Final Order.” A docket notation to this effect also was made; however, the decree itself was never vacated or modified in any manner.

On April 20, 1972, after completing the testimony in the trial of the third party complaints of appellees, briefs were submitted and the last one was filed June 8, 1972.

No further action by taken by Judge Rowan prior to his death on May 24, 1973. Following his death an interim chancellor served through December 31, 1974. The newly elected chancellor assumed office January 1, 1975, and under authority of Rule 10 of the Uniform Rules and the Standing Order of the Court, without notice to appellant or his attorney, appellant’s case, listed with forty others, was dismissed “for want of prosecution.”

In an independent action appellees herein had obtained judgment against Pine-O-Pine, one of the third party defendants herein. That judgment was appealed and affirmed on April 19, 1976. Before the appeal had been decided appellant, through his then attorney, caused a writ of garnishment to be issued against Pine-O-Pine et al, which answered that the judgment against the corporation in favor of appellees was not final.

On April 20, 1976, appellant then had issued a new writ of garnishment, the first one having been dismissed pending outcome of the appeal as to Pine-O-Pine. The court entered an order on May 21, 1976, holding appellant had no judgment, that his cause had been dismissed and the writs of garnishment were a nullity. On June 28, 1976, the matter was reconsidered and the trial judge reached the same conclusion as previously.

On September 20, 1976, the matter was again reconsidered upon the oral testimony of appellant’s original attorney and the attorney for appellees who was called as a witness by appellant. At the conclusion of questions by the attorney for appellant, counsel for appellees asked permission to remain on the stand and stated, “If the Court please, I will add my testimony as a witness but as rebuttal to Mr. Compton and also further enlighten the Court on some facts,” after which about six pages of testimony by counsel followed. Nevertheless counsel did not withdraw thereafter but continued to represent appellees on appeal, including oral argument before this Court. After the testimony was taken the trial court again refused to vacate the judgment of June 28, 1976, and accordingly this appeal is brought.

Appellant contends a final judgment was entered as to his cause on April 12, 1972, and that the subsequent rulings of the court dismissing appellant’s cause for failure of prosecution deprive him of his property without due process of law.

The court’s decree dated April 12, 1972, filed April 17, 1972, reads as follows:

On the 23rd day of March, 1972, this matter came on to be heard and, by agreement of the parties and with the approval of the Court, oral testimony was taken upon the issue raised by Plaintiff’s Complaint and Defendants’ Answer and Cross-Complaint. No evidence was taken on the issues raised by the Third Party Pleadings. It was agreed that all issues other than those presented by Plaintiff’s Complaint and Defendants’ Cross-Complaint would be reserved and tried on April 20th and 21st, 1972, if trial proved to be necessary.
All parties were given until the 7th day of April, 1972, to file their briefs. Plaintiff declined to file a brief, and Defendants’ brief having been considered by the Court, together with all evidence and the pleadings, now, on this 12th day of April, 1972, the Court finds that plaintiff should have judgment against the defendants, and each of them, on his note in the principal sum of $30,000, together with interest at the rate of six (6%) percent per annum from the 28th day of September, 1967, and an attorneys fee in the amount of 13,000.00, together with his costs herein expended.
The Cross-Complaint of Defendants is dismissed.
This cause is set for trial on the 20th day of April, 1972, at 9:30 a.m., at Lewisville, Arkansas, on all remaining issues.
IT IS SO ORDERED.
Jim Rowan Chancery Judge
(Italics supplied)

Appellees never requested any modification of the original decree, only that effect of the judgment be withheld so that appeal time would run concurrently with that of the third party actions. The court only intended the judgment to be held up for appeal purposes.

In Holloway v. Berezen, 208 Ark. 849, 188 S.W. 2d 298 (1945), this Court stated:

* * * A docket notation is not an entry of judgment or decree upon the records of the court and cannot be used to supply a deficiency in the record of the Court. (Citing Herrod v. Larkins, 183 Ark. 509, 36 S.W. 2d 667; City of Monticello v. Kimbro, 206 Ark. 503, 176 S.W. 2d 152.) * * *

See also Baugh v. City of Pine Bluff, 257 Ark. 768, 520 S.W. 2d 275 (1975).

16 Am. Jur. 2d Constitutional Law § 379 (1964), states:
Rights acquired by a judgment are property rights which cannot be taken without due process of law. * * * (Citing numerous cases in support of the statement.)

We find the delay was occasioned because the third party action was not decided by the original trial court nor his successors in office. This phase of the case has been awaiting decision since June 8, 1972. It would be unconscionable to penalize appellant and deprive him of his judgment under these circumstances. Accordingly the cause is remanded for reinstatement of the judgment.

We also call attention to the case of Canal Insurance Company v. Hall, 259 Ark. 797, 536 S.W. 2d 702 (1976), wherein we stated: Bank of Newport, 246 Ark. 502, 439 S.W. 2d 299 (1969); Old American Life Ins. Co. v. Taylor, 244 Ark. 709, 427 S.W. 2d 23 (1968); and Rushton v. First Nat’l Bank of Magnolia, 244 Ark. 503, 426 S.W. 2d 378 (1968).

We must again take this occasion to reiterate our disapproval of an attorney testifying in an action in which he is an advocate. McWilliams & Kimes v. Tinder, 256 Ark. 994, 511 S.W. 2d 480 (1974); Watson v. Alford, 255 Ark. 911, 503 S.W. 2d 897 (1974); Montgomery v. 1st Nat’l

Reversed and remanded.

We agree. Harris, C.J., and George Rose Smith and Holt, JJ.

       Char-Lite Briquetts, Inc. and Pine-O-Pine Company, appellants v. H. E. Richardson, E. C. Hochendel and W. A. Woolman, appellees, No. 75-126, not designated for publication.

       The record reflects that appellant’s original attorney took no part in further proceedings after he was called to testify.

       Mr. Compton had not taken the stand, but was examining appellees’ attorney.


text:
    Samuel Levon SHACKLEFORD v. STATE of Arkansas
    CR 77-26
    551 S.W. 2d 205
    Opinion delivered May 31, 1977
    (Division I)

      Greene, Cottrell & Craig, by: Omar F. Greene and William H. Craig, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

On January 17, 1976, appellant Samuel Levon Shackleford was charged by information with possession of heroin with intent to deliver, a felony, and possession of marijuana and possession of cocaine, both misdemeanors, in violation of Ark. Stat. Ann. § 82-2617 (Repl. 1976). He was tried and convicted. Due to a previous conviction of selling cocaine, a hearing was held so the jury could determine sentence pursuant to Ark. Stat. Ann. § 82-2624 (Repl. 1976) which resulted in sentences imposed as one year on each of the two misdemeanor charges and 25 years on the felony charge. On August 2, 1976, the court heard the State’s petition for revocation of probation from the earlier conviction, and sentenced appellant to serve the additional seven years consecutive to the other sentences.

Appellant raises several points on appeal, the first of which concerns the denial of his motion to suppress the evidence obtained pursuant to a search of his premises.

A search warrant for appellant’s residence was issued on January 17, 1976, based on the sworn affidavit of Detective Mike Sylvester of the Little Rock Police Department who had obtained information from a confidential informant. Under authority of the warrant detectives forcibly entered the house after announcing their identity, arrested appellant and his wife and seized quantities of marijuana, cocaine and heroin. Co-defendant Brunette Shackleford was later acquitted on all charges.

Appellant first contends the affidavit was deficient because it did not set forth with particularity the facts bearing on the informant’s reliability as required in Rules of Crim. Proc., Rule 13.1(b) (1976). That rule provides:

The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained.

The sworn affidavit of Detective Sylvester, on which the issuance of the search warrant was based, stated the factors constituting probable cause as follows:

(a) Affiant states that on 1-13-76, a confidential informant, who has proven to be very reliable in the past, and whose information has resulted in the arrest of five (5) felony cases, went to the above mentioned address and purchased heroin from Samuel Shackleford, said informant was searched before going into the above mentioned residence.
(b) Affiant states that on 1-17-76, the same said confidential informant went to the above mentioned address and purchased heroin from Samuel Shackleford, said informant was searched before going into the above mentioned residence.
(c) Affiant states that said confidential informant has given information that has led to the conviction of three (3) persons in the last three months, other cases are still pending.
(d) Said confidential informant has seen heroin within the last eight hours in the residence of Samuel Shackleford at 1815 W. Roosevelt, Little Rock, Arkansas.
(e) The Little Rock Police Department has on file documented records showing that Samuel Shackleford, BM, DOB, 12-14-42, is dealing in heroin in the Little Rock area.

Since the affiant herein is relying on the observations of an informant, as indicated in Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670 (1970), the affidavit must indicate to the issuing magistrate (1) the underlying circumstances from which the informant concluded that the object of the proposed search is where he said it was and (2) some of the circumstances from which the officer concludes that the informant is credible or his information reliable. This two-prong test was set out in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) and cited with approval by this Court in Walton v. State, 245 Ark. 84, 431 S.W. 2d 462 (1968).

In the present case subsections (a), (b) and (d) of the affidavit relate underlying circumstances which confirm the belief that drugs were present in appellant’s house. These sections relate the activities and observations of the informant with regard to appellant. Subsections (a) and (c) state the results of other information given by the informant, in-cheating his reliability and credibility. Consequently the affidavit here was legally adequate to meet the requirements of Aguilar, supra.

Appellant next contends the identity of the informant should have been revealed.

In West v. State, 255 Ark. 668, 501 S.W. 2d 771 (1973), we held:

Often, determination whether disclosure is required is ultimately made upon the basis of whether the informant was present or participated in the alleged illegal act with which the defendant is charged or whether the informer merely furnished information concerning criminal activity to law enforcement officers [citations omitted]. * * *

In Brothers v. State, 261 Ark. 64, 546 S.W. 2d 715 (1977), we stated:

* * * In the instant case appellant was not charged with the sale of marijuana to the informant. The informant only supplied the “lead” to law enforcement officers establishing the probable cause for issuance of the search warrant.

The information supplied by the informant here merely directed the investigation of the police to appellant’s residence where they found him in possession of the heroin, marijuana and cocaine. Their subsequent search resulted in the charges brought against him. It was not error to refuse to disclose the identity of the informant since the elements of the State’s case could have been proved without his testimony or participation.

Appellant also contends the search warrant was improperly returned after its execution in violation of Rules of Crim. Proc., Rule 13.4(b) (1976). That rule requires a search warrant to be returned with a verified report and inventory of the items seized.

Under Rules of Crim. Proc., Rule 16.2 (1976), a ruling on a motion to suppress must be governed by a determination of whether the violation was substantial. In pertinent part the rule states:

(e) Determination. A motion to suppress evidence shall be granted only if the court finds that the violation upon which it is based was substantial, or if otherwise required by the Constitution of the United States or of this state. In determining whether a violation is substantial the court shall consider all the circumstances, including:
(i) the importance of the particular interest violated;
(ii) the extent of deviation from lawful conduct;
(iii) the extent to which the violation was willful;
(iv) the extent to which privacy was invaded;
(v) the extent to which exclusion will tend to prevent violations of these rules;
(vi) whether, but for the violation, the things seized would have been discovered; and
(vii) the extent to which the violation prejudiced the moving party’s ability to support his motion, or to defend himself in the proceedings in which the things seized are sought to be offered in evidence against him. (Italics supplied.)

In Brothers v. State, supra, we found substantial compliance and no prejudice where a return was mistakenly marked “Investigative Report” even though some of the articles seized were not itemized.

Here, the itemization on the back of the search warrant listed three grams of heroin, one and one-half ounces of marijuana and three credit cards. We do not find that the claimed irregularity resulted in prejudice to the rights of appellant.

The jury found appellant guilty on three counts. However, when the verdict was returned it was discovered that the jury had erroneously been given a verdict form which provided for a finding on a charge of delivery of heroin, and not possession of heroin With intent to deliver, the proper charge. Appellant’s motions for judgment of acquittal notwithstanding the verdict and for a mistrial were denied.

The jury was given the proper verdict form and asked to retire again. Thereafter, a verdict of guilty of possession of heroin with intent to deliver was returned. Appellant renewed his motions, which once again were denied.

Appellant contends the trial court erred in originally submitting an incorrect verdict form to the jury and in making an improper comment on the evidence at the time of submission of the second form. We find nothing improper in the court’s comments to the jury when it was necessary for the jurors to retire for reconsideration of the verdict on one count.

The court stated:

* * * There is a discrepancy in the, on the verdict sheet. You were given an erroneous verdict sheet here, and it was guilty of delivery of heroin, as opposed to the charge of possession with the intent to deliver. You will be given the correct finding sheet after, when you retire to consider your verdict the next time ....
* * *
You will return to the jury room and continue your deliberations and you will, this time, have a proper verdict sheet and you will be asked to find the defendant guilty or not guilty of possession with intent to deliver. You may retire and the verdict sheet will be there shortly-

Only extreme resulting prejudice flowing from an error committed during the course of judicial proceedings will warrant the granting of a mistrial. Russey and Way v. State, 257 Ark. 570, 519 S.W. 2d 751 (1975).

24 C.J.S. Criminal Law § 1450 (1941) states:
Irregularities in the verdict and its reception may warrant or require the granting of a new trial, but such relief will not be given where the rights of accused are not substantially prejudiced. * * *

We do not find the court’s comments prejudiced the rights of appellant in any way.

Appellant contends the trial court erred in revoking his probation. This contention is based on the alleged merit of the motion to suppress. Since we affirmed denial of the motion and determined the evidence obtained admissible, appellant’s argument is without merit. Therefore the probation was properly revoked.

Affirmed.

We agree. Harris, C.J., and Fogleman and Hickman, J.J-


author: Darrell Hickman, Justice.

text:
    Joe H. CARTER v. OWENS-ILLINOIS, Inc.
    77-8
    551 S.W. 2d 209
    Opinion delivered May 31, 1977
    (Division II)

      Robert S. Blatt, for appellant.

      Bethell, Callaway & Robertson, for appellee.
   Darrell Hickman, Justice.

The only issue in this case is, can a federal district court and a state circuit court have jurisdiction at the same time of the same subject matter involving identical parties? The trial court ruled that they could and we agree.

The appellant, Joe H. Carter, sued the appellee, Owens-Illinois, Inc., in the Federal District Court at Fort Smith over a vehicle accident that occurred in Fort Smith. Owens filed an answer to the lawsuit and later a counter-claim for property damages. After the lawsuit was filed in federal court, Owens filed a lawsuit in Sebastian Circuit Court against Joe Carter over the same accident. Therefore, we have identical claims involving the same parties concerning the same subject matter pending in two courts at the same time.

Carter asked the federal court to enjoin the state court from hearing the lawsuit. The federal court denied the request. See Carter v. Owens-Illinois, Inc., 420 F. Supp. 927 (1976). Apparently the case is still pending in federal court.

Carter next filed a motion for summary judgment in the state court asking the case to be dismissed because the federal case was filed first, involved the same matter, between the same parties. The trial court denied the motion, the case was tried before a jury, judgment was entered for Owens and denied Carter. Carter raises only the one issue of jurisdiction on appeal.

Federal district courts and state courts are separate jurisdictions. Identical cases between the same parties can be pending in each court at the same time. See Baker, et al v. Harrison, Judge, 247 Ark. 377, 445 S.W. 2d 498 (1969). It is the same situation as if identical cases between the same parties were pending in different states. In such a situation the first forum to dispose of the case by trial enters a judgment that is binding on the parties.

Arkansas law does prohibit identical cases between the same parties from proceeding in different Arkansas counties. However, this is a matter of venue and not jurisdiction. See Ark. Stats. Ann. § 27-1115 (Repl. 1962).

Affirmed.

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


author: PER CURIAM

text:
    Stephen SCHUSTER v. STATE of Arkansas
    CR 77-86
    551 S.W. 2d 210
    May 31, 1977

      Stephen Schuster, pro se.

      Bill Clinton, Atty. Gen., for respondent.
   PER CURIAM

Petitioner was convicted of aggravated robbery in the Circuit Court of Crawford County and sentenced to 15 years in prison and fined 110,000.00. Notice of appeal was filed by petitioner’s employed trial counsel on June 21, 1976. It appears that this attorney did not perfect the appeal because he received a letter from petitioner stating that appellant did not want to appeal this conviction. Petitioner in requesting that a belated appeal be allowed, contends that this waiver of his right to appeal was not voluntary because of the prosecuting attorney’s threats to prosecute him on other charges, if he did appeal. The employed trial counsel has not been given permission by this court to withdraw. See Rule 36.26, Rules of Criminal Procedure; Rule 11 (h), Rules of the Supreme Court. Appeal has not been dismissed, in this court, in spite of the fact that notice of appeal was given. See Rule 36.20, 36.23, Rules of Criminal Procedure; Norfleet v. Norfleet, 223 Ark. 751, 268 S.W. 2d 387; Sate v. Adkisson, 251 Ark. 119, 471 S.W. 2d 332. We can not ascertain whether the appeal was ever dismissed in the trial court.

Although we can grant a belated appeal, where notice was given, and the transcript record never filed here under Rule 36.9, Rules of Criminal Procedure, there are important questions of fact to be determined before we can say that there was good reason for the failure of appellant or his attorney to file the record here, and these questions can not be resolved on affidavits.

Petitioner’s request for a belated appeal is denied without prejudice to his applying to the trial court for a hearing on the question of whether his right to appeal was voluntarily waived, and if not, for an order for the filing of a transcript of the record in this court, and without prejudice to his right to appeal to this court from any ruling adverse to him.

Byrd, J., dissents.


author: George Rose Smith, Justice.

text:
    Alfred Wilson BREWER v. STATE of Arkansas
    CR 77-33
    551 S.W. 2d 218
    Opinion delivered June 6, 1977
    (Division I)

      Loh & Massey, by: Howard C. Yates, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty Gen., for appellee.
   George Rose Smith, Justice.

On August 9, 1976 Harold Woolverton reported the theft of a welding set, con sisting of an electric welder, a converter for the welder, anc two welder’s helmets. After a prompt recovery of the property the appellant Brewer was charged with theft by receiving Ark. Stat. Ann. § 41-2206 (Crim. Code 1976). Upon tria without a jury he was found guilty and was sentenced to fiv years’ imprisonment, three being suspended. For reversal h argues that the verdict cannot be sustained without th testimony of J. H. Wells, an accomplice as a matter of law and that the chain of custody of the welding set did not es elude the possibility of tampering.

We reject the first contention, because Wells was not an accomplice as a matter of law. Officer Epperson testified that before this particular theft he had information that Brewer had previously brought stolen items to Wells, a mechanic and garageman. The officer asked Wells to buy anything that Brewer brought to him and promised to reimburse Wells for his outlay.

Woolverton, who had seen the welding set on Sunday afternoon, reported its theft on Monday. On that same Monday morning Brewer offered such a welding set to Wells, who bought it in the belief that it had been stolen. Wells reported the purchase to Officer Epperson, who picked up the set on Tuesday. It is now argued that Wells, in purchasing stolen property, became an accomplice as a matter of law. McCabe and Willhite v. State, 245 Ark. 769, 434 S.W. 2d 277 (1968).

The principle of that case is not controlling, because Wells was, or could be found to have been, acting in cooperation with the police. Such a paid informer is not an accomplice as a matter of law. As Underhill points out, “one who is given money by an officer, or by a city, to make a purchase of intoxicating liquors in order to obtain evidence of a violation of the law is not an accomplice.” Underhill, Criminal Evidence, § 175 (5th ed., 1956). The reason for the exception is that such a decoy does not have the true accomplice’s motive for seeking to shift the blame to someone else. When Wells’s testimony is considered along with that of Officer Epperson, there was an issue of fact with regard to Wells’s being an accomplice.

Upon the second point, when an object is subject to positive identification, proof of the chain of custody need not be as conclusive as it should be with respect to interchangeable items, such as blood samples or drugs. Casenote, 30 Ark. L. Rev. 344 (1976). Woolverton, the owner of the welding set, positively identified the welder by a decal which he had put on it and which was included in the description he gave to the sheriff’s department. He identified the converter by a piece of tape that had a screw under one corner and that had been partially removed, taking some paint off. He identified one of the helmets by an attached magnifying glass and the other by some rust on it. His identification, which the court must have accepted, was so positive and detailed as to be virtually conclusive. In the circumstances the minor discrepancies in the chain of custody which the appellant complains of did not affect the admissibility of the welding set, the effect of the discrepancies being for the court. Rogers v. State, 258 Ark. 314, 524 S.W. 2d 227 (1975).

Affirmed.

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


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

text:
    William Loyd ARNOLD et al, Co-Executors v. Lelia E. ARNOLD
    76-343
    553 S.W. 2d 251
    Opinion delivered June 6, 1977
    (Division II)

      H. Jed Gant and Hardin, Jesson & Dawson, by: Bradley Jesson, for appellants.

      J. H. Evans and Warner & Smith, for appellee.
   John A. Fogleman, Justice.

This appeal involves the validity of an antenuptial agreement between appellee Lelia E. Arnold and the late W. F. (Floyd) Arnold, which was considered by the chancery court; and the validity of claims for alleged loans allowed by the probate court which were made against the estate by Mrs. Arnold. The actions were consolidated for trial by agreement of the parties and have been consolidated for the purpose of consideration on appeal. Appellants contend that the chancery court erred in declaring the antenuptial agreement void and in finding title to various items of personal property to be in appellee and that the probate court erred in allowing the claims. We are unable to say that there was error in holding the antenuptial agreement void, but we do find error in awarding certain items of personal property to appellee and in allowing her claims against her husband’s estate.

Floyd Arnold, a retired Crawford County farmer died testate December 21, 1973, leaving his widow, the appellee here, a brother and sisters. He never had any children. His first wife with whom he lived for many years died in February, 1970, when he was 64 years of age. A few months after her death he made a trip to Hawaii, in the course of which he met appellee, then Lelia Gates, a 56-year-old school teacher, whose two previous marriages had been terminatec by divorce. He became enamored of her and they were married on May 30, 1970. They were separated in October 1971, and he obtained a decree of divorce from her or November 23, 1971. They begin seeing and communicating with one another within the week following the divorce, anc planned a remarriage. They entered into the antenuptia agreement in question on December 30, 1971, and wer< remarried on the same day, without leaving the courthous< where the agreement was signed. On the day after th< remarriage, appellee gave her husband a check for $28,000 which he used to pay off a loan he obtained in raising $50,00< he paid appellee under a separation agreement entered int by the parties before their divorce. She then had $20,000 lef from this payment which was deposited in a joint savings ac count in the Superior Savings & Loan Association in th names of W. F. Arnold and Lelia Arnold, with right of sui vivorship. From this account, $7,282.22 was used to pay pai of the purchase price of a home in Tulsa, which was soli when they moved into a new home in Van Burén a fel months later.

The terms of the antenuptial agreement provided that appellee receive $100,000 in cash, the family automobile, and an Avion trailer. The cash payment was to be made from the husband’s estate after crediting it with any sum or sums she received by reason of his death leaving her as the survivor of a tenancy by the entirety or joint tenancy. The terms of Floyd Arnold’s will, executed December 31, 1971, were totally consistent with and in recognition of this agreement. The balance of his $400,000 estate was left to his surviving brothers and sisters. Appellee received $33,000 from joint accounts, $20,000 of which came from the account in Superior Savings & Loan Association.

Appellee alleged that the antenuptial agreement was invalid, void and unenforceable for various reasons, among which were: her entering into the agreement without being aware of its legal implications or of her rights, and without the advice of independent legal counsel; the violation of the husband’s duty to make full disclosure to her of the nature, extent and value of his property; designed concealment by the husband presumed from the disproportionality of the provision made for appellee and his means; that Floyd Arnold’s sole reason for obtaining the divorce from appellee (then unknown by her) was to obtain the antenuptial agreement and then remarry appellee; and that he accomplished this by design, studied planning, concealment and taking advantage of appellee’s love and affection for him.

It is obvious that the chancellor believed the testimony of ippellee and her witnesses, and we must yield to his superior >osition to make that judgment. In stating the facts, we will laturally have this in mind, particularly where the testimony s undisputed or uncontradicted. Appellants made several ibjections to some of the testimony by appellee in the trial ourt on the basis of the deadman’s statute. Appellee con-ended that the deadman’s statute did not apply and that, by aking her discovery deposition, appellants had waived the tatute and she introduced it in evidence to show that it contituted a waiver. Appellants did not abstract that deposition iecause of the limited purpose for which it was introduced. The chancellor appeared to sustain most of these objections but permitted the testimony to be proffered, with the statement that he would again consider the matter when he reached his final decision in the case, after the parties had submitted briefs. It is obvious that the chancellor, in making his findings, did consider all the testimony to which this objection was made. Appellants do not seriously argue these objections here insofar as the antenuptial agreement is concerned or cite any authority for their position in the trial court. Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606; Hazen v. City of Booneville, 260 Ark. 871, 545 S.W. 2d 614. We will not consider them for this reason.

Appellee was employed as an elementary school teacher and media specialist in Florida at a salary of $10,065 per year when she met Floyd Arnold in April, 1970, just before they joined a tour to Hawaii with a group of Avion trailer enthusiasts.* They were married at Van Burén. She had then sold her home in Florida and was receiving payments on the contract of sale. She owned a condominium in Florida, had an interest in property in New York, a certificate of deposit and money in a tax shelter annuity. She sold the New York property after her marriage to Floyd Arnold. The parties signed an agreement on the day before they were married, at Floyd’s request. It was labeled “Antenuptial Agreement” and prepared by an attorney. It provided for payments that she should receive in lieu of any and all claims against him and his property, alimony, dower, and homestead, as a settlement of property rights in the event the marriage did not work out and there was a separation or divorce. It provided for no other eventuality. If a separation occurred during the first year, she was to receive $25,000; if during the second year, $50,000; during the third year $75,000; and, if during the fourth year $100,000. In no event was he to be liable foi more than $100,000 by reason of any rights accruing to her by reason of the marriage.

The parties lived together in Van Burén during their firs marriage. They travelled extensively. There is a conflict it the evidence as to how they got along, but Floyd Arnolc decided he wanted a divorce. Appellee testified that he firs expressed this desire to her on Saturday, October 2, 1971 She said that she was shocked and upset and the next day she went to the home of Floyd’s sister, Audrey Cox, in Tulsa. She returned to Van Burén the following day and went to see a doctor, who directed that she enter the Crawford County hospital, where she remained for 17 days. Floyd Arnold came to see her there and on one occasion they discussed the divorce. He brought some papers there and told her he was filing suit for divorce, and was going to give her $50,000, according to their agreement. She executed a waiver of service and entry of appearance on the day she left the hospital and on October 22, 1971, she received two checks from Floyd totalling $50,000.

She returned to Florida in November. She was ill and Floyd drove her in an automobile she had bought with some of her own funds and $2,000 of the payment made to her by Floyd. Before he left Florida, she accompanied him to Leesburg where he purchased a new Avion trailer on November 13. The title was taken in his name, but she said she paid the balance of $4,714.47 by her check, after a “trade-in” was credited. Floyd then flew back to Arkansas. Appellee said she asked him just before he left whether he was going into the court the following Friday and get the divorce. He replied that he was. She then stopped payment on the check for the trailer.

The divorce was granted on November 23, 1971. Floyd called her by telephone six days later, saying that he wanted to come to Florida and asked her not to change her name on any papers or affairs. He also said that he needed money to pay off a note and asked her if she would let him have the money. She called him back and asked if he wanted her to fly to Arkansas and help him bring the trailer down. They agreed on this. In this or a later call by him, he mentioned remarriage, asking her if she wanted to get married in Florida or in Arkansas. She arrived in Arkansas on December 1 or 2 and gave him a check for $28,000 dated December 2, 1971. It was drawn on her bank account she had opened in a Florida bank upon closing her Arkansas bank account which had consisted of something over $3,000 from her own funds and the $50,000 paid her by Floyd. The Florida account was in the names of “W. F. Arnold or Lelia Arnold.” Floyd then broached the subject of a “premarital” agreement. They went to the office of his attorney on December 6 and discussed the matter and the attorney explained what an antenuptial agreement was. They later discussed the matter and still later returned to the attorney’s office, who had then prepared a draft of a proposed agreement. Appellee said that when she asked about provision for a home for her if they did not own one when Floyd died, Floyd became “very irate,” left, and later gave her another check for $28,000 dated December 9. She then left and went to visit her children in New York.

After eight or nine days, she was ill and called Floyd and told him she was going to Florida for Christmas. She actually came back to Arkansas on December 24. They spent Christmas at the home of Floyd’s sister in Tulsa. Appellee said Floyd told her that he was having the antenuptial agreement redrafted; that she would have to sign it before they were remarried; that Floyd told her it could be changed and amended later; and that she signed it without protest. On the day after the remarriage, she opened an account in a Van Burén bank, with $48,000 from her Florida bank account. She immediately wrote a check to Floyd for $28,000, as he said he still owed a balance on a loan at the Peoples Bank. On the same date she opened the $20,000 account in Superior Federal Savings & Loan Association with a check on her bank account.

After this remarriage, she resigned from her position in Florida, having been on leave without pay since 1969. She also sold her condominium. According to appellee, her prospects for a substantial increase in pay had been good and | if she had continued her employment, her retirement pay would have been many times the $147.73 she will receive monthly at age 65.

Appellants rely upon the basic requirements for a valid antenuptial contract stated in Davis v. Davis, 196 Ark. 57, 116 S.W. 2d 607, i.e., it must be freely entered into, not be unjust or inequitable and must be free from fraud. All these requirements must be met. Appellants emphasize appellee’s education and Floyd’s lack of it; the comfortable and superior lifestyle he had afforded her during the first marriage, testimony by them indicating that he did indeed have grounds for divorce because of differences about money and travel and because she embarrassed him constantly by correcting his grammar and speech patterns before his family and friends; her opportunity to know her husband’s means and the extent of his estate during the one and one-half years of their first marriage; and the failure of appellee to show that Arnold had misrepresented the value of his property.

Appellants rely heavily upon knowledge of Floyd Arnold’s wealth appellee gained from her first marriage to him. In particular, they point out that the two went to his lawyer’s office to prepare a joint income tax return for 1970 (which showed interest and dividend income of $14,768.56), that the couple lived comfortably and travelled extensively, that income from his investments was deposited in joint bank accounts, that they kept horses on the farm Floyd owned and went there frequently, that Floyd was retired and did no work, and that she was furnished credit cards and charge accounts and a fine automobile for her own use and was extended the privilege of writing checks on Floyd’s bank account. There is evidence from which the trial court might have found in favor of appellants on these points. Some of it is in such balance that we could not sustain the court’s findings without deferring to the chancellor’s superior position in determining the question of preponderance. Gammill v. Gammill, 256 Ark. 671, 510 S.W. 2d 66; Arkansas State Highway Commission v. Troutman, 240 Ark. 424, 399 S.W. 2d 686.

Because of testimony relating to Floyd Arnold’s conduct and statements pertaining to the divorce, the antenuptial agreement and the remarriage, we are unable to say that the chancellor’s findings of fact, in the following particulars, at least, were clearly against the preponderance of the evidence:

1. W. F. Arnold had a net worth of $400,000 or more when the agreement was entered into.
2. As a result of her marriages to W. F. Arnold, appellee lost substantial future income from salary, tenure and retirement benefits. [The only testimony on the subject shows that this loss did not become final until the second marriage.]
3. Appellee was unaware of the extent of the rights she lost by executing the same.
4. W. F. Arnold did not make a full disclosure to appellee, or otherwise make her aware of the extent and value of his property prior to the time she executed the antenuptial agreement.
5. W. F. Arnold’s sole reason for obtaining a divorce from the first marriage was in order to obtain the antenuptial agreement and then remarry appellee, but that this purpose was unknown to appellee until after W. F. Arnold’s death. W. F. Arnold obtained the agreement through design, studied planning and concealment, which constituted fraud and overreaching on his part.
6. The antenuptial agreement was unjust, inequitable, and unconscionable in view of the circumstances.

The factors in support of the chancellor’s findings that are significant and prevailing are disclosed by the testimony of three witnesses who may have been the most disinterested ones to testify, and whom the chancellor obviously found to be credible.

Mary Ann Smith, who had been married to Burl Keller, a nephew of W. F. Arnold’s first wife, for five years, testified that she had maintained a close relationship with Arnold, and that Arnold and his first wife were very devoted to her children of that marriage. She had been divorced from Keller for two years before she married John Smith. During that period, Floyd Arnold bought her a house, new furniture and an automobile, and more or less supported her, according to her testimony. She said that this close relationship continued after Floyd’s marriage to appellee. She testified that he came to her home and reported the separation in 1971 the day after it occurred and told her he was getting a divorce. When she asked why, he explained that he had heard that if he stayed married two or three years, appellee would get all his money; that he thought a lot of appellee; that she cared a lot about him and that after he got a marital agreement, maybe they could get back together. She stated that he said he would have to give appellee $50,000 but maybe they could get back together if she would sign a marital agreement containing terms which were similar to those of the antenuptial agreement actually executed. She also stated that he said he was going to get the $50,000 back. According to this witness, Floyd was very upset after the divorce and tried to call appellee, once from the house where the witness lived.

Paul Alexander, an 83-year-old resident of Mulberry, who like Floyd Arnold, had retired some years earlier, also lent considerable corroboration to the testimony of appellee. He had known Floyd for 20 or 25 years, had done business with him and considered him a close friend. These two, and their wives, visited each other, both in Arkansas and in Florida after Floyd and appellee were married. Alexander said that when he read in a Van Burén newspaper that Floyd Arnold had obtained a divorce from Lelia Arnold in November 1971, he called Floyd, who told him that this was another W. F. Arnold from the town of Rudy. Shortly thereafter, the Alexanders went to Florida and contact was established between the couples. When the Alexanders went to visit the Arnolds in January 1972, according to Alexander, Floyd went with him when the ladies went into the house. He said that Floyd started telling him about the divorce proceedings. He testified that Floyd was anxious to explain because of the earlier misrepresentation about the divorce. According to him, Floyd said that a lawyer had told him that, in a second marriage with no children, if you lived with the wife one year she got one-third of the husband’s estate, or after two years, she got one-half and after three years she got it all, but that after he and appellee had adjusted this like he wanted it they were married a second time. He said that Floyd said he could not live without her and that they were well satisfied now.

Clyman E. Izard, Chairman of the Board of Peoples Bank & Trust Company testified about conversations with W. F. Arnold about remarriage of the couple. Arnold often sought free legal advice from Izard, who had practiced law. He said that Arnold seemed concerned about the financial aspects. Izard said that he had asked Arnold whether he had ever heard of a “prenuptial” agreement and had explained this concept. He was at first positive that this conversation took place after the divorce, but upon further examination could not fix the time of the conversation except to say that it took place at a time when Floyd was contemplating remarriage, which, according to him, would mean that it was before the second marriage. Of course, Arnold had heard of at least one “antenuptial agreement,” even though he may not have previously gained full knowledge of the concept.

There is no indication that Floyd Arnold, who was admittedly in a confidential relationship with appellee, ever made any attempt to inform appellee of the extent of his property, even though he was insistent upon her signing the agreement before the remarriage. We note that the attorney who prepared the two drafts of the agreement at the request of Floyd Arnold and with whom the parties consulted was not called as a witness, even as to the conferences. Arnold’s conduct after the divorce was quite consistent with the testimony of Mr. Alexander and Mrs. Smith (which was not really contradicted by that of Izard) as to his designs and purpose. Perhaps his beliefs about the rights of appellee after the third year of their marriage were ill founded; perhaps the witnesses did not fully understand what he was saying; perhaps Arnold’s extravagant statements about his widow’s rights were hyperbolic; but reference to the first “antenuptial” agreement demonstrates that it limited the amount to which she would be entitled only in case of divorce. (Floyd Arnold may oven have suspected that this bargain was invalid. See Oliphant v. Oliphant, 177 Ark. 613, 7 S.W. 2d 783.) Under that agreement she would have been entitled to all the rights of a widow if she survived W. F. Arnold. She would have had, in addition to dower, a right of homestead in the Van Burén residence, which was valued at $30,000 to $40,000. She would have been entitled also, in addition to dower, to a widow’s allowance of $2,000, furniture, furnishings, appliances, implements and equipment reasonably necessary for the occupancy of her dwelling, and a sustenance allowance of $500. Ark. Stat. Ann. § 62-2501 (Repl. 1971). She would have been entitled to an undivided oné-half interest in a farm valued by an apparently well qualified real estate appraiser at $118,000. Ark. Stat. Ann. § 61-206 (Repl. 1971). The balance of his $400,000 estate was in personalty. With personalty of $282,-000, she would have been entitled to dower of $141,000. Ark. Stat. Ann. § 61-206 (Repl. 1961). Quite a lot of this estate would have had to have been dissipated for the value of her widow’s rights in W. F. Arnold’s estate to be reduced to $110,000 (with the automobile and camper taken to have a value of $5,000 each, on inventory values).

Appellants argue that there was no showing as to the amount of W. F. Arnold’s liabilities at the time of the signing of the agreement, but there is no indication that there were any, other than the loan he obtained to make the divorce settlement. It seems highly probable that appellant would have produced evidence of any other that existed.

In considering the evidence as it relates to the requirements for a valid agreement, it would not be unreasonable for a fact finder to infer that Floyd Arnold had established himself as the dominant personality, and that the parties married and divorced when he said they would and lived where he said they would. On both occasions he drove his bargain just before the wedding. The second wedding was obviously arranged before the signing of the agreement in question or it could not have taken place so quickly. If appellee’s testimony is accepted, Floyd Arnold dictated the terms and when his terms were questioned, he flew into a rage and called off the wedding. Appellants argue that appellee was free to consult an independent attorney about the agreement, but accepting appellee’s uncontradicted testimony at face value would at least arouse a suspicion that her doing so would not have pleased Floyd Arnold, to say the least.

Under the circumstances of this case, there were questions on all three essentials, i.e., whether the agreement was freely entered into, whether it was unjust or inequitable, and whether it was tainted with fraud. In Wylie v. Wylie, 249 Ark. 316, 459 S.W. 2d 127, this court emphasized the requirement of the law that a man and a woman entering into the status of husband and wife employ frankness and candor in dealing with one another. There is enough evidence of Floyd’s scheme of divorce and remarriage to negate the idea that he was frank and candid with appellee and it was not unreasonable to arrive at the conclusion that the antenuptial agreement was tainted with fraud. The widow’s rights would probably have been twice as valuable as the provision for her under the agreement, so it was not unreasonable for the chancery court to conclude that the agreement was unjust and inequitable.

It must be remembered that an agreement making provision for dower must be made fairly, without fraud or imposition, with a full understanding on the part of the wife of its force and effect; that such agreements are to be regarded with the most rigid scrutiny and will not be enforced against the wife where the circumstances show that she has been overreached and deceived; that, because of the confidential relations between the parties, such an agreement is sufficiently suspicious to cast the burden of proof upon those who seek to support it to show that the husband took no advantage of his influence and knowledge and that the arrangement was fair and conscientious. Burnes v. Burnes, 203 Ark. 334, 157 S.W. 2d 24. See also, 25 Am. Jur. 2d 177, Dower, § 120; 28 CJS 125, Dower, § 55. We cannot say that this burden was met by a preponderance of the evidence, and we certainly cannot say that the chancellor’s contrary holding was clearly against the preponderance of the evidence.

Appellee concedes that the deadman’s statute does apply to the probate proceedings. She filed claims against the estate of W. F. Arnold for $32,068.82 and for $8,209.96, alleging that she had loaned W. F. Arnold $28,000 on December 31, 1971 (the day after the second marriage) and $7,282.22 to apply on the purchase price of the home in Tulsa, Oklahoma. She also claimed interest on the two amounts at six per cent per annum. Pertinent facts as to the $28,000 check she gave W. F. Arnold after their second marriage have been previously stated. The other item was the withdrawal from the joint account at Superior Federal Savings & Loan Association on April 13, 1971. Appellee clostíd her (joint) account in the Florida bank on December 31, 1971 by opening the Superior Federal Savings & Loan Association account and by writing the $28,000 check to her husband, who then paid off a bank loan he had obtained to give her the check on December 9. It seems to us that it was the clear intention of the parties to abrogate the property settlement made pursuant to the first “antenuptial agreement” in connection with the divorce.

Appellee observed that the cases cited by appellants concern relations where there was either no final divorce decree or the decree was vacated or annulled by the agreement of the parties, and argues that those cases do not apply because in this case there was a final divorce which was not vacated or annulled.

It is generally said that a separation agreement is r Vogated when the parties resume a marital relationship because the consideration for the settlement fails, at least insofar as the executory provisions are concerned; although in some jurisdictions the question of whether a separation agreement survives a reconciliation depends on the intention of the parties. But, when there is a property settlement, it is generally held to be a final and binding contract between the parties which can only be voided by mutual agreement. Reconciliation alone does not terminate the settlement. Therefore the settlement survives the reconciliation unless the court can find an intention or an express agreement that it shall not survive. See: Annot, 35 ALR 2d 707 (1954), supplementing 40 ALR 1227 (1926); Lindey (1976), Separation Agreements and Ante-Nuptial Contracts, vol. 1, § 8 par. 10, pp. 8-11 to 8-23.

It is the nature of the agreement, then, rather than the precise condition of the marital relationship that has been a distinguishing factor in determining whether, and under what conditions the respective agreements survive reconciliation. We have assiduously avoided making this distinction, and properly so, coilsidering the fact that it is often difficult to determine whether a document is a separation agreement or a property settlement. In all cases it has been the intention of the parties, as evidenced by their relationship and their treatment of the property involved, which has determined whether the bargain survives. See, e.g., Ward v. Ward, 249 Ark. 1001, 463 S.W. 2d 90; Dennis v. Younts, 251 Ark. 350, 472 S.W. 2d 711. In O’Quin v. O’Quin, 217 Ark. 321, 230 S.W. 2d 16, a property settlement was signed and the wife made deeds to the husband of property which they had held in tenancy by the entirety. A divorce decree was entered but a short time later was annulled. Four months later the wife filed for divorce and requested that the deeds be set aside. The divorce was not granted but, on appeal, the Supreme Court, reversing the trial court, held that she showed by a preponderance of the evidence that they had resumed their former married status in every respect “which, in effect, cancelled their property settlement ...” The court observed that she delivered to her husband all the property she received in settlement and deposited the money in their joint account. “There appears to have been no effort by them during this period to separate their property interests.” In making this determination the court quoted from and followed as authority rules set out in Sherman v. Sherman, 159 Ark. 364, 252 S.W. 27 and Carter v. Younger, 112 Ark. 483, 166 S.W. 547. Both those cases involved separation agreements.

That a distinguishing feature in the survival of a property settlement incident to divorce is remarriage rather than annullment of the divorce has not been mentioned in any of the authorities that we have examined and appellee has not directed us to any authorities which have so distinguished the cases. When we consider the conduct of the parties and their handling of the money involved we can only find that the clear preponderance of the admissible evidence shows that the property settlement was abrogated and that the probate court erred in finding that these sums were due and owing by the decedent to the appellee at the time of his death.

We agree with appellants that the chancery court erred in holding that appellee was entitled to a Lady Elgin watch, a .38 caliber pistol, and a set of wedding rings which had belonged to W. F. Arnold’s first wife. There is no evidence to support a gift to appellee without her testimony, which was clearly barred by the deadman’s statute. See Greer v. Stilwell, 184 Ark. 1102, 44 S.W. 2d 1082. Significantly, appellee does not argue the validity of these gifts on appeal. As to other items of personal property claimed by appellee as her property, the deadman’s statute had no application. Her testimony that she owned certain items of household goods and appliances before either marriage and that certain other items were purchased with her own funds is not contradicted. As to other items of this nature, appellee’s testimony as to the manner in which they were purchased and paid for was not barred by the deadman’s statute. Neither was it contradicted. We cannot say that the holding of the chancery court was against the preponderance of the evidence as to these items.

The decree of the chancery court is affirmed, insofar as it relates to the cancellation of the antenuptial agreement and the award of personal property, except for the wristwatch, pistol and the set of wedding rings, as to which the decree is reversed. The judgment of the probate court is reversed insofar as it relates to claims of appellee against the estate of W. F. Arnold.

We agree. Harris, C J. and Hickman, J. Byrd, J., concurs.

Conley Byrd, Justice,

concurring.

Because of the testimony of Mrs. Smith and Mr. Alexander I cannot say that the chancellor was in error in finding that Mr. Arnold fraudulently overreached appellee in procuring the antenuptial agreement. However, I take this occasion to point out that our laws on antenuptial agreements especially among persons beyond the child bearing age — need a substantial revision in view of the educational and business acumen of the present day woman.

For the reasons stated I concur in the result of the majority.

Harris, C.J., joins in this concurrence.


author: John A. Fogleman, Justice.

text:
    OZARK SUPPLY COMPANY v. Owen GLASS
    76-416
    552 S.W. 2d 1
    Opinion delivered June 6, 1977
    (Division II)

      Adams & Wilson, by: Douglas L. Wilson, for appellant.

      Laster & Lane, by: James F. Lane, for appellee.
   John A. Fogleman, Justice.

Appellant Ozark Supply Company sued Dr. Sam Machara, Dr. John Ferguson and appellee Owen Glass, alleging that they, as partners in a general partnership known as Circle T. Cattle Company of Perryville, Arkansas were indebted to appellant for purchases of veterinary supplies made by appellee Glass under authority given him by the other partners. Appellant also alleged that it was an Arkansas corporation with its principal place of business in Benton County; and that Machara was a resident of Los Angeles, California, who had been in Arkansas on numerous occasions for the purpose of raising cattle for commercial purposes, and had expressly assented to the purchase of supplies of the kind described in appellant’s invoices for carrying out partnership purposes. Appellant further alleged that Dr. Ferguson was a resident of Bald Knob, Arkansas and that Owen Glass was a resident of Perryville, Arkansas. Machara and Ferguson filed answer, in which they admitted that Maehara was a resident of California, stated their belief that Owen Glass was a resident of Perry County, Arkansas, and denied that Ferguson was a resident of Arkansas, alleging that he, too, was a resident of California. Appellee Glass filed a motion to quash the summons issued for him and served on him in Perry County, Arkansas. This motion was granted on the ground that venue of the action as to Glass was not properly laid in Benton County, because none of the defendants resided in or were served with process in that county. We agree and affirm.

Appellant relies upon Ark. Stat. Ann. § 27-615 (Repl. 1962) and Ark. Stat. Ann. § 27-2501 et seq (Supp. 1975), the Uniform Interstate and International Procedures Act, and argues that “summoned” in Ark. Stat. Ann. § 27-615 includes and extends to extrastate service of process to the extent that venue is proper in the county from which the process issued under the “long-arm” act because the party so summoned is summoned in that county. Appellee disagrees and relies upon Ark. Stat. Ann. § 27-613 (Repl. 1962) as the basic venue statute, requiring actions on contracts to be brought in a county in which a defendant resides or is summoned, as reinforced by Ark. Stat. Ann. § 27-615 (Repl. 1962), citing International Harvester Co. v. Brown, 241 Ark. 452, 408 S.W. 2d 504.

The underlying policy as to venue in this state is that every defendant should be liable to suit only in the county of his residence or place of business, unless for other policy reasons there are statutes to the contrary. Universal C.I.T. Credit Corp. v. Troutt, 235 Ark. 238, 357 S.W. 2d 507. This basic policy has always been considered as primary in construction of venue statutes, and properly so, unless other statutes are clearly in conflict with that basic policy. The convenience of the defendant against whom a judgment may be rendered is usually considered more important than the convenience of the plaintiff. See, Langley, Grounds for Venue in Arkansas — A Survey, 25 Ark. Law Rev. 468, 479 (1971).

Appellant contends, however, that when we consider Ark. Stat. Ann. §§ 27-619, 620 (Supp. 1975) permitting contract actions against a non-resident of this state or a foreign corporation to be brought in the county of the plaintiff’s residence at the time the cause of action arose, we must conclude that venue was properly laid as to Glass. We must disagree, however, with appellant’s contention that “long-arm” service on a non-resident of the state is sufficient to fix venue, so as to permit the “dragging” of a resident of one county to another to defend that action. It is quite true that the “long-arm” statute may affect venue because of its provisions relating to jurisdiction and service of process. See Langley, supra, 25 Ark. Law Rev. at 484. But it is not a statute which controls venue. It is basically a statute giving jurisdiction to local courts in local causes of action, even though the defendant is not subject to service of process locally. Leflar, Conflict of Law, Arkansas, 18 Ark. Law Rev. 135, 136 (1964); Langley, supra, 25 Ark. Law Rev. at 484. In this connection, we must remember that jurisdiction and venue are two separate and distinct concepts, although they are sufficiently interrelated to cause some confusion. Langley, supra, at 469, 471; Gland-O-Lac Co. v. Creekmore, 230 Ark. 919, 327 S.W. 2d 558. See also, Arkansas State Racing Commission v. Southland Racing Corp., 226 Ark. 995, 295 S.W. 2d 617. The confusion usually arises when venue is erroneously equated with jurisdiction of the person. Jurisdiction of the person is the power of the court to hear and determine the subject matter of a controversy between the parties to a suit, i.e., to adjudicate or exercise judicial power over them. Lamb & Rhodes v. Howton, 131 Ark. 211, 198 S.W. 521. It is the power to render a personal judgment in a particular case or to subject the parties to the court’s decisions and rulings. 21 C.J.S. Courts § 15, p. 32; Black’s Law Dictionary, 4th Ed., p. 992. It is based upon appearance of the person or the issuance and service or proper process upon him in the manner required by law. 1 Bouvier’s Law Dictionary, Lawle’s Third Ed., p. 1761; Stevenson v. Christie, 64 Ark. 72, 42 S.W. 418; Federal Land Bank of St. Louis v. Gladish, 176 Ark. 267, 2 S.W. 2d 696; Healey & Roth v. Huie, 220 Ark. 16, 245 S.W. 2d 813; 20 Am. Jur. 2d Courts § 106, p. 465.

The fact that our “long-arm” statute is basically a jurisdiction-giving statute rather than a venue-fixing one is clearly demonstrated by the provision that the court in which the action is filed has broad powers under the forum non conveniens provision of the act, [Ark. Stat. Ann. § 27-2502 E (Supp. 1975); Bowsher v. Digby, 243 Ark. 799, 422 S.W. 2d 671] and in the fact that it is a cumulative provision for jurisdiction. Ark. Stat. Ann. §§ 27-2502 F, 2506 (Supp. 1975). It is also obvious that there was no intention to make the county from which the summons issues, in an action in which jurisdiction is based on the act, the county of service. Sec. 27-2502 D provides that service may be made outside the state. We have said that the statute was designed to authorize extrastate service of process. International Harvester Co. v. Hendrickson Mfg. Co., 249 Ark. 298, 459 S.W. 2d 62.

We must then look to Ark. Stat. Ann. §§ 27-619, 620 (Act 142 of 1973) for possible venue in Benton County. If Maehara and Ferguson were the only defendants in the case, venue could be in Benton County under the allegations of the complaint and the provisions of the act. Although this statute provides “cumulative” venue, that venue is limited by the language that “this Act shall in no way repeal or modify any other existing venue statute.” Ark. Stat. Ann. § 27-620. In order for the act to have the effect given it by appellant, it would modify Ark. Stat. Ann. §§ 27-613 and 27-615. We would then be compelled to read § 27-613 as if it said, “Every other action, except for contract actions against a nonresident of this state or a foreign corporation, may be brought in any county in which the defendant or one of several defendants, resides, or is summoned;” or § 27-615 would have to be modified to read “Where any action embraced in § 96 (§ 27-613) is against several defendants, the plaintiff shall not be entitled to judgment on the service of summons in another county than that in which the action is brought, where no one of the defendants who reside in Arkansas is summoned in that county, or resided therein at the commencement of the action ...” “Issuance of summons” and “service of summons” are by no means synonymous.

Basic policy reasons can be found for the exceptions from “every other action” in other venue statutes. For, e.g., the reasons for requiring actions pertaining to real property to be brought in the county in which it is located are obvious. Ark. Stat. Ann. § 27-601 (Repl. 1962). The same may be said of the requirement that certain actions be brought in the county in which the seat of government is situated. Ark. Stat. Ann. § 27-603 (Repl. 1962). No basis for an exception to the overriding policy as to venue in this situation is apparent here.

We are of the firm opinion that the General Assembly would have spoken in language clear enough to leave no doubt about its intention to override the state’s primary policy in fixing venue, if it had intended to do so. We read nothing in any of the acts relied upon by appellants to indicate that intention.

The judgment is affirmed.

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


text:
    Edward Charles PICKENS a/k/a Larry COAKLEY v. STATE of Arkansas
    CR 76-186
    551 S.W. 2d 212
    Opinion delivered June 6, 1977
    (In Banc)

      Willis Plant, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Jackson Jones and Robert A. Newcomb, Asst. Attys. Gen., for appellee.
   Conley Byrd, Justice.

Cloud’s Grocery store at Casscoe, Arkansas was held up by three Negro men wielding a sawed-off shot gun and a .22 pistol. After raping the female clerk, the holdup men caused the woman, the store’s owner and seven of the customers, all of whom had been robbed, to lie on the floor with their faces down. While in that position, seven people were shot by a .22 pistol. The .22 pistol was reloaded and fired a second time into several of the victims. Harold Goacher described the holdup men as being two dark Negro men and a light colored one. It was Goacher’s testimony that the two dark Negro men took turns in firing the .22 pistol. Appellant Edward Charles Pickens, a/k/a Larry Coakley, an ex-convict from the State of Michigan, admits that he was present when the shooting occurred but insists that the light colored Negro man was the one who shot the victims in order to prevent the victims from identifying the holdup men. Some, but not all of the victims survived. The jury found appellant guilty of Capital Felony Murder of Wes Nobles, one of the Negro customers at the grocery store. After hearing additional testimony in a bifurcated trial the jury returned a verdict fixing appellant’s punishment at death by electrocution. For reversal, appellant raises the issues hereinafter discussed.

POINT I. We find no merit to appellant’s contention that it was error for the trial court to allow two Deputy Attorneys General to act as special prosecutors. This Court has long recognized that it is permissible for the prosecuting attorney to request the assistance of special counsel in the prosecution of a criminal case; Coon v. State, 109 Ark. 346, 160 S.W. 226 (1913). No abuse of the trial court’s discretion is shown in the case before us.

POINT II. The record shows that appellant moved to adopt the pretrial pleadings and motions filed on behalf of Sherwood Vincent Gooch. The trial court permitted appellant to adopt Gooch’s motion but in doing so specifically provided that the change of venue in appellant’s case would be to the Southern District of Prairie County rather than to the Northern District in Gooch’s case. Appellant did not thereafter object to the venue and cannot now contend that the trial was held in an improper place.

POINT III. After the trial but before the transcript of the testimony was prepared, the home of the official court reporter was destroyed by fire. Appellant at that time moved for a new trial on the basis that the tape recordings made by the court reporter during the course of the proceedings were destroyed and consequently, the court reporter could not necessarily make a full, complete, exact and accurate transcription of the record at trial. Appellant’s motion recognized, however, that the court reporter still had her shorthand notes. The trial court, in overruling appellant’s motion, made the following finding, to-wit:

“. . . That from the reporter’s shorthand record of the trial proceeding the court reporter has prepared a true and accurate transcription of the trial proceeding herein and certified same in the usual manner and a copy thereof has been filed with the Circuit Court Clerk at DeValls Bluff, Arkansas and also a copy of same has been delivered to the attorney for the defendant on September 7, 1976. That defendant’s attorney was advised that if he could show the Court within twelve days wherein any material mistake or objection was made and/or omitted, the transcript would be corrected accordingly. There has been no such mistake or omission presented to the Court.”

On the basis of the trial court’s finding, we must conclude that the motion for new trial was properly overruled. We note that in some instances there are some omissions of isolated words in the transcript, however, appellant does not contend that the transcript before the Court omits any matters of consequence.

POINT IV. Appellant contends that he was denied his Sixth Amendment right to counsel at two critical stages of the prosecution which also had the effect of vitiating his Fifth Amendment rights. These contentions have no merit. The totality of the evidence shows that appellant voluntarily waived his right to counsel and signed a confession after he was fully informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The record also shows that appellant voluntarily waived his right to counsel in the line-up identification conducted after his arrest by the Memphis, Tennessee Police.

For the first time on appeal appellant contends that the signing of the rights waiver by appellant did not appear in the response to the Bill of Particulars filed by the State. In making the suggestion, appellant does not intimate that he was in any manner prejudiced by the State’s alleged failure. Furthermore, the Bill of Particulars Item 1 (29) lists “Line-up rights form” as having been furnished to the attorney for appellant. See also Item 4(1) of the Bill of Particulars which refers to a waiver of rights form. Also we do not consider issues raised for the first time on appeal.

POINT V. Appellant contends that the evidence found in the stolen automobile that he and his confederates abandoned in Memphis shortly before their apprehension should have been suppressed because the police did not secure a search warrant. We do not understand the law to require a search warrant before the police can search an abandoned vehicle from which a defendant flees to prevent apprehension by the police. See J. Varon, Searches, Seizures and Immunities, Chapter III, § 3 at 183 (2d Ed. 1974).

Neither do we find any merit to appellant’s contention that the diamond wedding band taken from the rape victim during the holdup should be suppressed. See United States v. Edwards, 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974). The record shows that the ring was removed from appellant’s little finger during a custodial search at the jail in Memphis after his arrest.

The .22 pistol was found by an alert citizen on the streets of Memphis near the point of appellant’s apprehension by the officers. Appellant is not in a position to claim an illegal search.

Appellant under this point also suggests that there was no direct link established between him and the gun found by the Memphis citizen. The record shows that Captain McDonald, a ballistics expert, identified the bullet found in Wes Nobles, the decedent, as having been fired from the recovered .22 pistol. Furthermore, appellant admits that he handled the .22 pistol that was fired into the robbery victims. Consequently, this contention has no merit.

POINT VI. Finally appellant contends that the imposition and carrying out of the sentence of death by electrocution for the crime of Capital Felony Murder under the law of Arkansas violates the Eighth or Fourteenth Amendment to the Constitution of the United States. We find no merit to the contentions made. See Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977), Neal v. State, 261 Ark. 336, 548 S.W. 2d 135 (1977), Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977), Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976) and Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976).

In making its findings on aggravating and mitigating circumstances the jury made the following specific findings:

“The Defendant was, beyond a reasonable doubt, previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.
The Defendant did, beyond a reasonable doubt, in the commission of the capital felony, knowingly create a great risk of death to one (1) or more persons in addition to the victim.
The capital felony was, beyond a reasonable doubt, committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
The capital felony was not committed by another person and the Defendant was not an accomplice or his participation relatively minor.”

There is substantial evidence to support the jury’s findings on each of the above facts and in the absence of any mitigating circumstances, we can find no basis in the record to hold that the sentence of death was wantonly or freakishly imposed against appellant. Like Neal v. State, supra, this is just another example of a robber who makes the cold-blooded calculation that by annihilating his victim he thereby eradicates an eyewitness to his crime. Society has every right to display an indignant and moral outrage at such offensive conduct and no court should hold that a jury cannot respond to such a grievous affront to humanity by invoking the death penalty in accordance with the laws of the State.

A search of the record shows no other objection made by appellant in the trial court that is worthy of comment.

Affirmed.

George Rose Smith, Holt and Hickman, JJ., concur in the result but adhere to the views expressed in Collins v. State, 261 Ark. 195 (1977).


text:
    Martha Jo HEWELL v. STATE of Arkansas
    CR 77-4
    552 S.W. 2d 213
    Opinion delivered June 6, 1977
    (Division I)
    [Rehearing denied July 11, 1977.]

      Jeff Duty, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury convicted appellant of arson and assessed her punishment at four years ’ imprisonment in the Arkansas Department of Correction. Ark. Stat. Ann. § 41-501 (Repl. 1964). Appellant argues for reversal that the procedure used in selecting the jury was arbitrary and contrary to the mandatory provisions of Ark. Stat. Ann. § 39-201 — 39-212.1 (Supp. 1975). Two jury panels were selected in the following manner. The judge of the Criminal Division and the judge of the Civil Division each appointed six commissioners who selected the requisite names and placed them in the jury wheel. Thereupon each of the judges drew sixty names to serve as jurors for their respective terms of court. Here the trial court of the Criminal Division needed ten additional jurors and drew them from the panel of jurors which were selected for the Civil or Second Division. In attacking this method, appellant overlooks Ark. Stat. Ann. § 39-215 (Supp. 1975), which prescribes the grounds for sustaining a challenge to the jury. That statute provides:

A challenge to the jury drawn from the jury wheel or box may be made by a litigant in a particular case and shall be sustained by the Court if it shall appear that there was a substantial irregularity in ‘be drawing or summoning of the jury, the Court shall in open court order another panel drawn for the trial of such case, and such other cases in which a similar challenge is sustained.

Here the record does not reflect nor does the appellant demonstrate any substantial irregularity in the drawing or summoning of the jury or jurors. Consequently, we find no merit in appellant’s contention that the court erred by “borrowing” the ten additional jurors.

Appellant next asserts that the trial court erred in refusing to allow her to submit two jury instructions which would enable the jury to determine if two of the state’s witnesses were accomplices. We cannot agree. When, as here, the court’s instructions fully covered the subject, there is no error in refusing the defendant’s proffered instruction. Maxwell v. State, 236 Ark. 694, 370 S.W. 2d 113 (1963). Also when it appears, as here, that the defendant’s theory of a case is presented by other instructions, the court is not required to multiply instructions on that point. Fisher v. State, 161 Ark. 586, 256 S.W. 858 (1923).

Appellant also argues that there was not sufficient evidence corroborating the testimony of the accomplices. Appellant argues that the state’s witnesses, France, Seratt and Clark, are accomplices as a matter of law. It is true that France testified that he burned the building and was employed to do so by the appellant. France enlisted the aid of Seratt, who acknowledged that he aided France in burning the building. However, Clark denied any complicity. He was present when appellant solicited France to burn the building in order to destroy financial records where appellant was employed. Sometime later when France burned the building, he left there and came by his parents’ home where Clark happened to be. France was smelling like “kerosene.” At France’s request, he drove him to appellant’s home. He testified that he had dissuaded France from committing the alleged arson, telling him that “he was going to get himself in a heap of trouble. ” Clark thought appellant “could have been blowing off at the mouth. . . ” According to Clark, he “had no idea that Richard was going to do it.”

The burden is on the appellant to show that a witness for the state is an accomplice and if there is conflicting evidence as to the extent of the participation of the witness, it is a factual dispute for the jury to decide pursuant to the proper instructions as to the witness’ intent and participation. Russey v. Stale, 257 Ark. 570, 519 S.W. 2d 751 (1975). Here we cannot say that Clark was an accomplice as a matter of law. Therefore, the court properly submitted the issue to the jury as to whether Clark was an accomplice. The evidence is sufficient to sustain the verdict.

Neither can we agree with appellant’s argument that the trial court erred in not sustaining the motion for a new trial on account of irregularities of the jury during the trial of the case. The trial court has wide latitude of discretion in granting or denying a motion for a new trial and a judge’s action will not be reversed in the absence of an abuse of that discretion or manifest prejudice to the complaining party. Harvey v. State, 261 Ark. 47, 545 S.W. 2d 913 (1977); Gross v. State, 242 Ark. 142, 412 S.W. 2d 279 (1967). Here the appellant, three spectators and one defense witness testified on the motion for a new trial that members of the jury mingled with and conversed with witnesses for the state and court officials in and out of the jury room during recess and the jury’s deliberations. Court officials and nine of the jurors appeared as witnesses and denied there were any irregularities. The trial court found that there was no evidence that “anything actually improper was said or done by anybody.” There was no abuse of discretion in denying the motion for a new trial since the appellant has not demonstrated that she was denied a fair and impartial trial. See Parrott v. State, 246 Ark. 672, 439 S.W. 2d 924 (1969); and Parrott v. State of Arkansas, 497 F. 2d 1123 (8th Cir. 1974).

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Roy, JJ.


author: Frank Holt, Justice. Darrell Hickman, Justice,

text:
    Patricia BAKRI v. STATE of Arkansas
    CR 77-14
    551 S.W. 2d 215
    Opinion delivered June 6, 1977
    (In Banc)

      Rosecan, Kimbrell & Witzel, by: Alan G. Kimbrell, St. Louis, and Sam Goodkin, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury convicted appellant of the offense of false pretense (Ark. Stat. Ann. § 41-1901 [Repl. 1964]) and assessed her punishment at one year’s imprisonment in the Arkansas Department of Correction. Appellant first contends, through court appointed counsel, that she should have been discharged for failure to bring her to trial within three terms of court following her arrest. Appellant was arrested on May 19, 1975, and subsequently charged by information. From the date of arrest until trial, she was at liberty on bail. The terms of the Sebastian County Circuit Court, Fort Smith District, are the first Monday in February, June and October. Ark. Stat. Ann. § 22-310 (Supp. 1975). The third full term of court following appellant’s arrest would be the February 1976 term which ended on June 7, 1976. Appellant was tried on June 3 and 4, 1976. This is within the third full term of court whether measured from the date of arrest or the subsequent information and, therefore, complies with Ark. Stat. Ann. § 43-1709 (Repl. 1964). State v. Knight, 259 Ark. 107, 533 S.W. 2d 488 (1976). See also Ark. Crim. Proc., Rule 28 (1976) (Act 280 of 1975). That rule changed Ark. Stat. Ann. § 43-1709 (Repl. 1964) by providing the time for trial commences to run from the date of arrest and not from the filing of the information.

Appellant next contends that “the State failed to make a submissible case for the jury in that the only false representation alleged and proved — that the victim ‘would be exclusive in this area’ — related solely to the future and was not a misrepresentation of an existing fact or past event.” It is well settled that to constitute false pretense within the meaning of the statute (§ 41-1901), the misrepresentation must be of some past or existing fact and not a promise of something to occur in the future. Ross v. State, 244 Ark. 103, 424 S.W. 2d 168 (1968); Conner v. State, 137 Ark. 123, 206 S.W. 747 (1918); and McKenzie v. The State, 11 Ark. 594 (1849).

Here the information charged that the prosecuting witness was induced to pay money in excess of $35 ($11,985) to the appellant by her false representation of an existing fact. The pertinent part of the bill of particulars asserts that the appellant created “a false impression as to the area and exclusivity of the contract. ...” Appellant was a sales representative of a nonresident corporation, MRM Enterprises, Inc. The thrust of the state’s argument is that sufficient proof was adduced that appellant falsely representated an existing fact by selling the prosecuting witness, Parker, an “exclusive” distributorship of Kodak products for a certain area. She mailed Parker’s application along with two others to her employer which accepted all of them as distributors. Parker admitted that appellant told him, in taking his application and check, “that I would be exclusive in this area of Fort Smith,” and he knew that the proposed purchase agreement was “valid only upon a signature of an officer of MRM Enterprises, Inc.” He was also aware that he was “applying for a distributorship which might or might not be accepted.”

In Conner v. State, supra, we said: “A false representation as an inducement to pay money that something thereafter was to be or was not to be done is not a false pretense. ” Here, when all of the evidence is viewed most favorably to the state, we must hold that no submissible issue was presented to the jury as to false representation of a past or existing fact.

Reversed and dismissed.

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

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting.

Patricia Bakri was charged with obtaining $11,985 from Ray Parker by means of false pretense. The state introduced evidence that it was represented to Mr. Parker that he would have an exclusive distributorship for Fort Smith and with that distributorship certain marketing advantages. According to the evidence, Bakri promised two others the same thing at the same time.

The majority are holding that because an exclusive dealership was merely promised, there can be no violation of the criminal law of false pretense. It was a matter for the jury to decide whether or not Bakri was guilty of false pretenses. The state made a case and the conviction should be permitted to stand.

This was nothing more than a pure and simple con game and the law was designed to protect individuals from this type of larceny. Legal distinctions made by the majority are too fine. Parker was promised an exclusive dealership in the Fort Smith area. At the same time his money was taken, two other individuals paid money for exclusive distributorships in the same area That is pretty strong evidence that the promise of an exclusive distributorship was false.

I would affirm the judgment of the lower court.

       This section is now superseded by Ark. Crim. Code § 41-2203 (1976).