text:
    Jackie Don COLCLASURE; June COLCLASURE; Thelma Norine COLCLASURE, Guardian of the Estate of Ralph E. COLCLASURE; and Jackie Don COLCLASURE, Trustee v. KANSAS CITY LIFE INSURANCE COMPANY and J. Marshall CHATFIELD, Successor Trustee
    85-241
    720 S.W.2d 916
    Supreme Court of Arkansas
    Opinion delivered December 22, 1986

      Paul Johnson, for appellant.

      Thaxton, Hout, Howard & Nicholson, for appellee.
   Robert H. Dudley, Justice.

The appellee, Kansas City Life Insurance Company, loaned $450,000.00 to appellants. The installment promissory note evidencing the debt was secured by a mortgage on appellants’ farm. When appellants defaulted on an annual installment payment, appellee accelerated the maturity date, made demand, and filed suit for foreclosure in chancery court. The appellants answered, and, in addition, filed a complaint in circuit court alleging that the appellee had indicated that a prospective buyer of the farm would be allowed to assume the debt, but then would not permit the assumption. Appellants filed motions to . transfer the foreclosure suit to circuit court, to consolidate the cases, and to demand a jury trial. Appellee moved to dismiss the suit in circuit court, or, alternatively, to transfer and consolidate in chancery court. The trial court consolidated the cases in chancery court, with the circuit court complaint being treated as a counterclaim, and denied the demand for a jury trial. The day before the chancery case was set for trial, the appellants filed a motion for default judgment. Service of the motion was had on appellees’ attorney the day of trial. The trial court denied the motion for default judgment, granted judgment for the debt, and, if not paid within 20 days, ordered the security sold at public auction. We affirm.

The appellants’ first point of appeal is that this is a suit on a debt and the chancellor erred in denying them a jury trial. They contend that there is a distinction between a decree for a money judgment and a decree of foreclosure, and since the decree in this case grants a money judgment they were entitled to a jury trial. They cite cases from other jurisdictions which, they contend, entitle them to a jury trial. See, e.g., Cheatham v. Bynum, 568 P.2d 649 (Okla. App. 1977) and Suburbia Pools, Inc. v. Fischer, 661 S.W.2d 823 (Mo. App. 1983).

In the cases cited by appellants there is a statute or rule of civil procedure which alters the common law and grants a right of jury trial when a money judgment is sought in a mortgage foreclosure proceeding. We do not have such a statute or rule but, instead, continue to follow the common law that a mortgage foreclosure proceeding is an equitable proceeding.

Appellants next contend that Article 2, Section 7 of the Constitution of Arkansas and the Arkansas Rules of Civil Procedure guarantee them the right to a trial by jury. The argument is without merit. The constitutional right to a jury trial is limited to those cases which were so triable at common law. Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979). A defendant in a mortgage foreclosure proceeding did not have a right to a jury trial at common law. The Rules of Civil Procedure simply set out the procedure by which a party may demand a jury when he has a right to one. ARCP Rule 38.

Foreclosure proceedings are equitable proceedings even though the chancellor may render an in personam judgment in addition to granting foreclosure. Price v. State Bank, 14 Ark. 50 (1853). This is in line with our continued application of the clean-up doctrine, which allows the equity court, once it has properly acquired jurisdiction, to decide law issues incidental to or essential to the determination of the equitable issues. Towell v. Shepherd, 286 Ark. 143, 689 S.W.2d 564 (1985). Appellants do not question that the law issue was incidental to the equitable issue in this case.

Appellants next argue that the clean-up doctrine violates Article 2, Section 7 of the Constitution of Arkansas. The argument is without merit. Our current constitution was ratified in 1874, and, by that time, our common law was replete with decisions upholding the clean-up doctrine. Dugan v. Cureton, 1 Ark. 31 (1837); Price v. State Bank, 14 Ark. 50 (1853); Saunders v. Wood, 15 Ark. 24 (1854). The constitution was obviously drafted with full knowledge of the clean-up doctrine, and the two are fully compatible.

The appellants next contend that the Seventh Amendment to the Constitution of the United States and Beacon Theaters, Inc. v. Westover, 359 U.S. 500 (1959), prevent the application of the clean-up doctrine. This argument also is without merit. The Seventh Amendment to the Constitution of the United States, like Article 2, Section 7 of the Constitution of Arkansas, only insures the right to a jury trial in those cases so triable at common law. The federal courts have long recognized that the Seventh Amendment does not apply in equity cases. Brennan v. J.C. Penney Co., Inc., 61 F.R.D. 66 (D.C. Ohio, 1973) and Curtis v. Loether, 415 U.S. 189 (1974). Even if it were held to apply to equity cases where the clean-up doctrine is invoked, the Seventh Amendment would not afford appellants the relief they seek since the Supreme Court of the United States has long recognized that the Seventh Amendment has not been, and should not be, extended to the states through the Fourteenth Amendment. Hawkins v. Bleakly, 243 U.S. 210 (1917).

Finally, appellants contend that the trial court committed error in denying their motion for a default judgment. The Chancellor was correct. The appellees had appeared in the action when the motion for a default judgment was filed. Yet, the appellee was not served with notice of the motion until the day of the application for default judgment. At least 3 days notice was required, ARCP Rule 55(b), so the application was not timely.

Affirmed.


source: Caselaw Access Project

author: Robert H. Dudley, Justice. Steele Hays, Justice,

license: Public Domain

text:
    PEOPLES BANK AND TRUST COMPANY OF VAN BUREN v. Claude WALLACE
    86-147
    721 S.W.2d 659
    Supreme Court of Arkansas
    Opinion delivered December 22, 1986

      Gant & Gant, by: Paul Gant, and Friday, Eldredge & Clark, by: George Pike, Jr. and William A. Waddell, Jr., for appellant.

      Joel W. Price, for appellee.
   Robert H. Dudley, Justice.

Appellee Claude Wallace agreed to purchase 20,000 shares of stock in Arkansas Reference Laboratories, Inc. for $50,000.00. In performance of his agreement appellee drew a $50,000.00 check on his account with appellant, Peoples Bank and Trust Company of Van Burén, made payable to “Arkansas Reference Lab.” The president of Arkansas Reference Laboratory endorsed the check “Deposit Only — North Little Rock Medical Laboratory” and deposited the money in the account of the North Little Rock Medical Laboratory, a separate corporation. After discovering the unauthorized endorsement, appellee made a demand upon appellant bank that the $50,000.00 be credited back to his account. His demand was refused and he filed suit based upon sanctions of the Uniform Commercial Code which impose liability upon banks for paying checks with unauthorized endorsements. The jury awarded appellee $60,500.00. We affirm.

Appellant assigns two points of error. In one point it argues that appellee had no standing to sue as he was not the real party in interest. See A.R.C.P. Rule 17(a). Appellant pleaded the issue of standing in its answers, but did not bring the issue to the trial court’s attention, and the trial court did not rule on the issue. It was incumbent upon the appellant to bring the issue to the trial court’s attention and obtain a ruling on it. The failure to do so constitutes a waiver of the issue, and we will not consider it on appeal. Gallman v. Carnes, 254 Ark. 987, 497 S.W.2d 47 (1973).

The other assignment of error contains three parts. In it, the appellant contends that the trial court committed reversible error by refusing to grant appellant’s motion for a new trial because: (1) the verdict was contrary to the evidence and contrary to the law, (2) the jury instructions were erroneous, and (3) the jury erred in its assessment of damages.

The contention that the verdict was contrary to the evidence or contrary to the law is one which may be the basis for ordering a new trial. A.R.C.P. Rule 59(a)(6). The rule says a new trial may be granted when the verdict is “clearly contrary to the preponderance of the evidence.” The trial court thus has some discretion in the matter, Lawson v. Lewis, 276 Ark. 7, 631 S.W.2d 611 (1982), but that discretion is limited, and he may not substitute his view of the evidence for the jury’s except when the verdict is clearly against the preponderance of the evidence. Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982). The appellant has made no showing that the limited discretion of the trial court was abused.

Next, appellant argues that the verdict is contrary to the law. With the exception of the argument on instructions, the argument does not focus on any trial court error, but deals with abstract issues of law. We do not consider abstract issues of law on appeal. We consider only matters which were raised below and ruled upon by the trial court. C. & L. Trucking, Inc. v. Allen, 285 Ark. 243, 686 S.W.2d 399 (1985).

Appellant next argues that many of the instructions were erroneously given. However, in its reply brief, appellant concedes that it made no objection to some of the instructions which are now submitted as erroneous. As we have said many times, we will not consider arguments on those instructions to which there was no objection, or where necessary, an instruction was not offered. Wallace v. Dustin, 284 Ark. 318, 681 S.W.2d 375 (1984).

The procedure for preserving a point of appeal concerning instructions is not complex. A.R.C.P. Rule 51 mandates that in order to preserve an objection regarding an erroneous instruction of law, the party appealing must make a timely objection by telling the trial judge why the instruction is wrong. Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984). When the point of appeal is that the court failed to give an instruction, the party appealing must submit a proposed instruction on the issue. Curtis Communications v. Collar, 11 Ark. App. 14, 665 S.W.2d 301 (1984).

Appellant contends that jury instruction number 12 was abstract and confused the jury. The instruction was a correct statement of the law as set out in the Uniform Commercial Code. However, the instruction did contain two inapplicable sections of the Code which refer to a collecting bank, and it was error for the trial court to refuse to delete portions of a statute which were not applicable to the case. Hunter v. McDaniel, 274 Ark. 178, 623 S.W.2d 196 (1981). However, error is no longer presumed to be prejudicial, Jim Halsey Co., Inc. v. Bonar, 284 Ark. 473-A, 688 S.W.2d 275 (1985), and we will not reverse for error unless prejudice is demonstrated. Globe Life Insurance Co. v. Humphries, 258 Ark. 118, 522 S.W.2d 669 (1975). Appellant does not suggest any possible prejudice in its brief but, at oral argument, suggested that the mention of the collecting bank could have caused the jury to believe that appellant might pass the loss on to the collecting bank. We do not find such prejudice. The instructions, as a whole, left no doubt that appellee was suing the appellant alone and that appellant would be liable for honoring an unauthorized endorsement.

Injury instruction number 13 the trial court instructed the jury on bad faith. At trial, the appellant’s objection was:

Defendant objects to the use of the term “bad faith” in this instruction, as not a term defined by the Uniform Commercial Code and is in fact only mentioned in the Code once in a section related to damages.

We find no error. Where the Uniform Commercial Code does not define a term, the trial court may resort to case law in order to define that term. In its brief the appellant makes additional arguments about other defects in the instruction, but those arguments were not raised at trial and are waived.

The appellant’s next argument concerns instruction number 17 on ratification. At trial the objection was as follows:

Defendant objects to this instruction as there is no citation of authority given by the plaintiff. Section 85-3-404 addresses ratification and it is defendant’s position that that law and no other law should be the authority on the issue of ratification under the facts of this case.

We find no error on the basis of the objection made. While it is desirable for the proponent of an instruction to submit citations of authority for that instruction, it is not error to fail to do so and since Ark. Stat. Ann. § 85-3-404 does not define or explain ratification, it was not error to go beyond that statute to form the instruction.

Appellant next contends that jury instruction number 19, on how agency is proven, was erroneous. Appellant’s objection was that the instruction failed to instruct on apparent or implied authority of an agent. The appellant had a duty to submit a proposed instruction on that issue. Since it did not do so, it may not assign as error the failure to give the instruction. A.R.C.P. Rule 51.

Similarly, appellant objected to the giving of instructions number 21 and 22 because they also failed to instruct on apparent or implied authority. Again, the appellant did not submit a proposed instruction on the issue. In addition, the appellant objected because the instructions conflicted with Ark. Stat. Ann. § 85-3-403. A part of the instructions may be construed to be in conflict with the statute, but that error was harmless because the court did give § 85-3-403 in another instruction. In its brief the appellee points out that these two instructions erroneously set out the burden of proof. That may be, but we will not consider the matter since it was not raised below.

Appellant contends that instructions 23,24,25, and 26 were irrelevant. We find no merit in the argument as the instructions were relevant.

Finally, the appellant contends that the jury erred in its assessment of the amount of damages because instruction number 28 on the measure of damages was erroneous and because the award was “against the preponderance of the evidence.” Appellant waived any objection to instruction number 28 since it did not object to the instruction and appellant has not shown that the verdict is clearly contrary to the preponderance of the evidence. A.R.C.P. 59(a)(6).

Appellee’s motion for costs for supplemental abstracting under Ark. Sup. Ct. Rule 9 is denied.

Affirmed.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I believe the trial court should have granted a new trial in this case based on the verdict being clearly contrary to the preponderance of the evidence. ARCP 59(6). While the bank’s payment of this check was technically improper, that was not the cause of appellee’s damage, if indeed he has been damaged.

The proof is wholly undisputed that Charles Worden, as president of Arkansas Reference Lab had complete authority to endorse checks on behalf of Arkansas Reference Lab, and regularly did so. He could have accomplished precisely the same thing that occurred here by endorsing the name of Arkansas Reference Lab and either cashing the check, or depositing it to Arkansas Reference Lab’s account and later withdrawing the funds. Either of these transactions would have been consistent with banking laws.

Nor does the fact that Charles Worden deposited the $50,000 to the account of North Little Rock Med Lab mean that Arkansas Reference Lab was deprived of the benefit of the funds. It is undisputed that at least $39,546.85 of the $50,000 was used to pay salaries and current liabilities of Arkansas Reference Lab. Claude Wallace could have insisted on joint check writing authority with Worden, but he did not do so. He cannot seriously argue he was damaged by the bank’s handling of his check in view of the fact the check was returned to him shortly after May 31, 1985 yet he waited some five months to complain about it, and even then, at the suggestion of someone else.

The end result of this case is that appellee not only has the 20,000 shares he purchased in Arkansas Reference Lab, which is still operating according to the undisputed evidence, but he also has laboratory equipment with a value of $7,000 to $20,000, plus having received $ 10,000 in salary from Arkansas Reference Lab. Now he has his $50,000 back with interest of $10,500.


author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    Wayne DUMOND v. STATE of Arkansas
    CR 86-50
    721 S.W.2d 663
    Supreme Court of Arkansas
    Opinion delivered December 22, 1986

      Larry W. Horton, for appellant.

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

In this criminal appeal Wayne Dumond, appellant, challenges his conviction for the rape and kidnapping of a seventeen year old girl. The victim alleged that after arriving home from school on September 11, 1984, a bearded man entered her home and abducted her at gunpoint. He drove to a remote area and raped her. She managed to talk him out of killing her and he then drove her back home. Some weeks later the victim was driving in Forrest City when she saw appellant, clean-shaven, driving a pickup truck. In the belief he was her attacker, she reported the incident to the police. Appellant was convicted on both charges and sentenced to life imprisonment plus twenty years, the sentences to run consecutively. On appeal he raises four points of error which are without merit.

Appellant first argues the trial court erred when it did not grant his motion for mistrial based on the state’s nondisclosure of a fingerprint report. During the testimony of a police officer there was reference to a report on fingerprints lifted from the victim’s car, used in the abduction. The defense objected, saying it had no knowledge of the report. The prosecutor also denied knowing about the report. The record is sketchy but it seems the state agreed or was ordered to furnish the report, if it could be located, and if not to produce someone from the Arkansas Crime Lab to testify about the report. That afternoon, Ralph Turbyfill, the chief latent fingerprint examiner for the State Crime Lab, testified. He said he had studied the prints lifted from the car but found they “did not contain a sufficient number of characteristics to make an identification or either to eliminate or identify anybody. In other words the latent fingerprints were not identifiable.” The witness was cross-examined by the defense, a few additional questions were asked on redirect and the witness was excused. There were no further objections by the defense. One more witness was called for the state and the state rested. At that time the defense requested a mistrial based on the state’s failure to turn over the fingerprint report, claiming they had no chance to have other experts examine the material.

Prior to trial, appellant had made a motion objecting to the prosecutor’s “open file” policy and requesting specific disclosure of scientific tests. Appellant complained he had received the results of certain tests but wanted the information on which such results were based. The pretrial order in response to this motion did not direct the prosecution to divulge any specific information but did provide that the defendant’s attorney could view, copy and obtain any and all information pertaining to scientific tests.

We note at the outset that while the prosecutor denied knowledge of the fingerprint report, that information is imputed to him. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985).

We said in Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981), the state is under no duty to make certain scientific tests and a defendant in a criminal case cannot rely upon discovery as a total substitute for his own investigation. The state’s action in this case did nothing to prevent appellant from making his own examination of the fingerprints. However, the state’s argument that appellant could have made his own investigation does not suffice. Rather, the defendant is entitled to the opportunity, apart from his own investigations, to challenge conclusions drawn from tests undertaken by the state. Here, the state could not determine from its tests whether appellant had been in the car. It would be as important for the defense preparation to study what the state was going to present as well as anything the appellant might have prepared. It relates not to the right to investigate, but to the effective preparation of a defense and rebuttal. A.R.Cr.P. Rule 17.1 (a) (iv) provides for the discovery of any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations, scientific tests, experiments or comparisons.

The Commentary to 17.1(a)(iv) states:

Adoption of this rule demonstrates the Commission’s agreement with Standards Reporters that nowhere is there greater need for pretrial disclosure or less risk of misuse of evidence than in this area. Unless adequate opportunity to examine this type of evidence is afforded, the chances for effective rebuttal are virtually foreclosed.
It is noted in LaFave:
[The disclosure of all scientific reports is justified.] Once the report is prepared, the scientific expert’s position is not readily influenced, and therefore disclosure presents little danger of prompting perjury or intimidation. Disclosure is also justified on the ground that it lessens the imbalance which may result from the State’s early and complete investigation in contrast to the defendant’s late and limited investigation. It is further noted that this sort of evidence is practically impossible for the adversary to test or rebut at trial without an adversary opportunity to examine it closely. LaFave, Cr. Proc., V.2, § 19.3.

Here, appellant made the appropriate request under Rule 17.1 and sought the basis of the results of any tests. While the information testified to by the expert was neutral and nonprejudicial, appellant was entitled to challenge the state’s conclusion by having his own tests performed.

However, appellant’s mistrial request was untimely. His objection was that the defense was entitled to have the report. There was a recess with no further comments by the defense. The expert’s testimony ostensibly cured the problem as there was no objection before, during or after the fingerprint expert testified and no further discussion of the matter. The appellant must make known to the court the action he wishes the court to take. Walker v. State, 280 Ark. 17, 655 S.W.2d 370 (1983). Here the appellant’s initial objection and request related only to being entitled to see the report and the record shows this was resolved. Appellant was given all the relief requested, Mitchell v. State, 281 Ark. 112, 661 S.W.2d 390 (1983).

Appellant did not make his objection at the first opportunity, he waited until after the testimony of the last witness and the state had rested. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Young v. State, 283 Ark. 435, 678 S.W.2d 329 (1984). The defendant cannot wait to see the full strength of the state’s case before bringing his request to the attention of the trial court.

As his next point, appellant contends the trial court abused its discretion in allowing the state’s expert to testify on certain matters. The expert, a serologist, stated in response to a question by the prosecution that the proportion of the male population with “A” blood type, who were also secreters and were vasectomized, would equal 60 in 10,000. Appellant submits this went beyond the expertise of the witness and the expert lacked “insight as to the actual basis for his conclusion.” We disagree.

A report of appellant’s vasectomy had been read to the jury and the serology expert was then qualified. The expert described his work as wholly forensic, that he examined physical evidence for the presence of bodily fluids that could have been transferred, such as blood, semen and saliva. When the defense objected to the statement in contention, the state qualified the expert in this area. The expert stated that such information was available in the pertinent literature, that he had used it before and studied it in his work. There were no further objections during direct testimony.

On cross-examination the defense had the opportunity to bring out any perceived weakness in the testimony. The expert admitted he did not know what percentage of the population was sterile, that there were many ways individuals could be permanently as well as temporarily sterile, and that he could not limit the perpetrator to 60 people. He acknowledged the statement was only in response to the parameters given him in the state’s question. He also stated the number of potential perpetrators was not consistent with his own tests.

The determination of the qualifications of an expert witness lies within the discretion of the trial court and his decision will not be reversed unless that discretion has been abused. Dixon v. State, 268 Ark. 471, 597 S.W.2d 77 (1980). No firm rule can be derived which would serve uniformly as a means of measuring the qualifications of an expert, but too rigid a standard should be avoided, and if some reasonable basis exists from which it can be said the witness has knowledge of the subject beyond that of persons of ordinary knowledge, his evidence is admissible. Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984).

There can be no serious question but that serologists are qualified to testify as experts in their field and appellant’s objection went to weight and credibility and not admissibility. The defense had the opportunity to expose the limited applicability of the expert’s statement and used that opportunity with fair success. There was no error in admitting this testimony.

For his third point, appellant argues the trial court should not have denied his motion for a continuance to produce his own serologist. When it was time for appellant’s expert to testify, the defense stated he was not available, having suffered a reaction to a bee sting. The expert’s associate was present but appellant did not consider him qualified to testify.

Although appellant insists the testimony of the absent expert was critical, he proffered nothing to indicate what he expected to prove by the expert. Furthermore, the state pointed out at trial that the expert’s associate was listed as a defense witness, yet the defendant made no attempt to qualify him. The decision to grant or deny a continuance is within the trial court’s discretion and will not be reversed absent an abuse of the discretion. Webster v. State, 284 Ark. 206, 680 S.W.2d 906 (1984). The burden is on the appellant to demonstrate the trial court’s error and that burden was not met.

As a final point, appellant argues it was error to permit the state to introduce a receipt for an automotive part, urging the evidence was irrelevant. Appellant had worked for Mr. and Mrs. Kellum. Some two weeks before the incident Mr. Kellum had sent appellant to West Memphis to purchase a starter. Appellant was gone four or five hours on an errand that should have taken only an hour or two. The state’s intended implication was that appellant used the time to observe the victim’s movements. We concede the proof had only marginal relevance, however, we have frequently held that relevance is a matter for the trial court’s discretion and is not reversible unless an abuse of discretion occurs. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). No abuse is demonstrated. Besides, both Mr. and Mrs. Kellum testified about the incident with no objection from the defense until the receipt itself was offered as an exhibit to the proof already received. Evidence that is merely cumulative or repetitious of other evidence admitted without objection cannot be claimed to be prejudicial. Brown v. State, 5 Ark. App. 181, 636 S.W.2d 286 (1982).

The judgment is affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The “open file” policy has once again proved that it pays to hide things you do not want discovered. The defense had no knowledge that fingerprints had been examined by the Arkansas Crime Laboratory until it was disclosed by state witnesses during the trial. There was no logical reason why the state could not have made the fingerprints, or lack of them, available to the defense. I am sure the Arkansas Crime Laboratory is not the only place in the country where latent fingerprints can be examined. We will never know whether an independent fingerprint examiner could have identified these prints and solved the case, or at least have determined whether or not the prints belonged to the defendant.

We have many times held that the prosecuting attorney’s obligations of disclosure under Rule 17.1, subject to Rule 19.4, extend to material and information within the possession and control of members of his staff or others who have participated in the investigation or evaluation of the case. Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981); Lacy v. State, 272 Ark. 333, 614 S.W.2d 235 (1981); and Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1979). So far as I am concerned the appellant was entitled to this potentially exculpatory information and it was prejudicial error to refuse a mistrial or, in the alternative, to grant a continuance. In Thrasher v. State, 270 Ark. 322, 604 S.W.2d 931 (1980), we held it to be reversible error when the state failed to produce evidence held in the investigator’s file. See also Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985), in which we held that information held by the police is imputed to the prosecution.

The majority seems to hold that prejudicial error occurred, but was waived for lack of timely action by the defense. I agree that the error was prejudicial. However, I do not agree that this error was waived because of the lack of a specific objection before, during, or after the fingerprint expert testified. The basis for the motion for a mistrial clearly was the lack of an opportunity to have the prints independently examined.

Next, I believe it was prejudicial error not to grant a continuance when appellant’s serologist witness was unavoidably unable to appear at the exact time he was needed. The witness had been on standby for several days. When called to come to the trial and testify it was discovered that the doctor had had a reaction to a bee sting a few hours earlier and was physically unable to appear. Since it was midafternoon and the trial was going into the next day regardless of whether this witness testified, it would have been only a slight inconvenience to the trial participants for the court to have granted a continuance. The denial of a continuance helped no one but the state.

The final and most prejudicial error was in allowing testimony that appellant was unexplainably absent from his job for a period of two or three hours. The absence was two weeks prior to the rape and was not shown to have any bearing upon the trial in progress. The state argued it was relevant because the appellant could have used the time to “stalk” the victim’s residence. In addition to the prosecutor’s remarks on the subject of this absence, at least two witnesses testified concerning thé two hour unauthorized absence from work. This testimony simply was not relevant.

No doubt many people see this as harmless error. To me it was highly prejudicial and this decision will result in even more serious consequences through expansion in the future. If an accused is required to account for and explain his daily and hourly activities, or inactivity, it will surely lead to more convictions, regardless of guilt. It is just as likely that the appellant spent a couple of hours at Mud Island as it is that he had been stalking the victim. He could have been thousands of places doing innumerable things. The evidence surely forced the jury to speculate about the absence and no doubt it may have had an influence in the jury’s decision.

I would reverse and remand for a new trial.


text:
    Larry DALTON v. CITY OF RUSSELLVILLE
    86-111
    720 S.W.2d 918
    Supreme Court of Arkansas
    Opinion delivered December 22, 1986
    [Rehearing denied January 26, 1987.]

      Susanne K. Roberts, for appellant.

      John Bynum, for appellee.

      Purtle, J., would grant rehearing.
      Glaze, J., not participating.

   Steele Hays, Justice.

Appellant Larry Dalton began employment as a patrolman with the Russellville Police Department in 1980. On September 7,1984 he was discharged by the chief of police for failure to obtain written permission to engage in off duty employment as required by Rule 2-9 of the department. He appealed to the Russellville Civil Service Commission and then to the circuit court. The discharge was upheld at both levels. Dalton has appealed to this court pursuant to Ark. Stat. Ann. § 19-1605.1 (Repl. 1980), which gives us jurisdiction. We affirm the circuit court.

Appellant first contends he has a protected property interest in continued employment under Ark. Stat. Ann. §§ 19-1601 et seq. (Repl. 1980), Civil Service for Police and Fire Departments. That act gives police and firemen a number of rights with respect to hiring and promotion, and prohibits their discharge or reduction in rank except upon notice in writing of the reasons, and the right to demand a trial before the commission on the truth of the charges. An appeal to the circuit court and to this court is also provided under the act.

We find no authority for the broad assertion that appellant has a constitutionally protected interest in his employment beyond that afforded by the act. Appellant’s entitlement to a hearing was plainly observed and the grounds for discharge were given him in writing and were based on the violation of a department regulation.

We find nothing in the civil service act creating an enforceable expectation of continued employment, nor does appellant point out anything in the act or the circumstances of his employment that supports his argument. The act merely gives employees certain procedural rights surrounding termination, all of which were observed in this case.

Whether appellant had a property interest is not the issue, as he makes no claim he was denied any procedural due process in his termination, only that the grounds were improper. Nothing in the record suggests appellant’s discharge was due to any reason other than the violation of Rule 2-9 of the department, which reads:

Members of the department shall devote their whole time and attention to their police duties. All off duty employment must be approved by the chief of police in writing.

The material facts are not in dispute. Shortly before his discharge appellant acquired a private investigator’s license and was hired by a local attorney to investigate an alleged civil rights violation by the Dardanelle Police Department. Police Chief Herbert Johnson testified he learned on September 5 that Dardanelle Police Chief Sims had called to ask why a Dardanelle police officer was being investigated by a Russellville police officer. Johnson said he verified that appellant, acting as a private detective on behalf of a Russellville lawyer, had questioned Chief Sims and Officer Tim Hull about an alleged civil rights violation. Johnson said no investigation was being conducted by the Russellville Department and he had no idea appellant was working as a private detective. He said he would not have permitted it due to a conflict of interest and the potential for using information to which only the police were privy. When appellant arrived at work on September 7 Johnson discussed the incident with him and appellant admitted the facts. Johnson informed appellant he acted in violation of the rules since he did not have permission to work as a private detective, work which Johnson said was in direct conflict with his duties as a Russellville police officer.

Chief Sims testified appellant contacted him to ask about a “particular case in Russellville.” He said appellant was in plain clothes and made it clear he was investigating the case as a private detective, though he said appellant was wearing a badge at the time. He considered it very unusual and unethical for one police officer to investigate another police officer. Such things, he said, were for the State Police or the FBI.

James Hardy, a deputy of the Yell County Sheriffs Office, testified that appellant contacted him by telephone on September 7 to say he was investigating a search in Pope County by the Dardanelle Police Department, appellant told him he had “checked the logs at the Sheriffs Office in Pope County” and learned that Hardy was at the Sheriffs Office on the date in question. Hardy said the logs were kept in the radio room and accessible to police personnel, but not to civilian personnel or private investigators.

Appellant testified he would not have conducted an investigation of the Pope County Sheriffs Department or the Russell-ville Police Department because that would be a conflict of interest, though he did not think investigating the Dardanelle Police Department presented a conflict of interest. Appellant had requested permission for off duty work in the past and recognized the rule in question, but testified in defense of his failure to request permission on this occasion, only that he did not foresee any possibility the Chief would object to his doing that kind of work and didn’t think it necessary to ask permission. The rules of the department provided that any employee could be discharged for a violation of any rule and there was substantial evidence presented to support the truth of those charges.

Appellant also argues that Rule 2-9 was applied exclusively to him and not to others in violation of his rights to equal protection, and was applied arbitrarily in violation of the due process clause.

There was testimony that most police officers performed various jobs when not on duty in order to supplement their salary. There was also proof that while certain types of off duty work were permissible, other types were not and that it was generally understood that work which might conflict with the duties of a police officer was not permitted under the rule. In practice there was some relaxation of the rule in that requests were sometimes approved orally or omitted altogether, but it is also true the exceptions involved routine work — handling traffic and crowds at football games, or security at local retail stores and the like. In some instances the department posted requests for volunteers for off duty work, which impliedly negated the need for written permission. In short, we find no instance where the rule was disregarded with respect to work comparable to that undertaken by the appellant in this case. Thus, the proof supports the conclusion that the rule and its exceptions were understood by the men on the force and if outside work involved police related activities, permission in some form was necessary. Compliance with the rule and its application were consistent and uniform. Nothing in the record suggests that other officers were permitted to perform off duty work of a sensitive nature as was engaged in by the appellant, and we cannot say under the proof the appellant was treated either exclusively or arbitrarily.

Appellant argues waiver and estoppel, but for the reasons already stated we disagree that Rule 2-9 was waived, or that the department was estopped from enforcing the rule. As we have said, the instances of departure from the rule all involved work of a routine sort. Appellant’s point might be well taken if he had been discharged for accepting work clearly not police related, but that was not the case, and we cannot say the findings of the trial court were clearly against the preponderance of the evidence. ARCP Rule 52.

Two remaining arguments do not require extended discussion. It is urged the circuit judge should not have excluded proof that appellant was a competent, conscientious police officer with consistently satisfactory performance ratings. The circuit court rejected this proof based on relevancy, limiting the trial to the issue of whether Rule 2-9 was violated. We have held repeatedly the relevancy of evidence is within the trial court’s discretion, subject to review if abused. Shelton v. State, 322 Ark. 339, 698 S.W.2d 512 (1985); Arkansas Power & Light v. Johnson, 260 Ark. 237, 538 S.W.2d 541 (1976). We cannot say it was abused in this instance.

Finally, appellant insists his discharge was clearly against the preponderance of the evidence. We cannot sustain the argument. The proof fully supports the conclusion there was a material violation of a rule by the appellant, a rule the department had every right to enforce.

The judgment is affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The appellant had been employed as a policeman for more than four years when he was terminated for investigating the activities of the police department in a nearby city. I believe he had a vested property right in his position because the state and the city had enacted laws giving him certain rights. I will not reiterate the authority and precedent cited by the majority because the answer to the question before us depends upon how each member of the court interprets the Constitutions. The appellant was in a permanent status classification rather than probationary. Why have the two classifications if one confers no more right than the other?

I am aware that Arkansas is still an employment-at-will state. However, we have held that in the proper case we might recognize exceptions to the rule. Appellant’s claim should be an exception because the state and city have granted rights in this case which remove the appellant from the employment-at-will doctrine.

Appellant was fired for violating a department rule which states “all off duty employment must be approved by the chief of police in writing.” It seems that the only victim of the rule was the appellant. He became the first casualty of the rule when he obtained or attempted to obtain information relating to the happenings of a nearby police department. Almost all of the Russellville Police Department had knowingly violated the same rule. Many of the other “moonlighting” jobs were in areas ordinarily included in duties of policemen. Controlling traffic and crowds, watching for theft and protecting property rights were some of the off-duty jobs performed by other members of the same police department. I cannot see that investigating the Dardanelle Police Department is in any manner interfering with the functions or responsibilities of the Russellville Police Department. I can see no distinction between investigating the activities of a police department and trying to catch a thief in a department store inasmuch as each activity involves duties which are common police functions.

The appellant was not in uniform and did not attempt to deceive anyone. He identified himself and expressly announced that he was acting as a private investigator. The evidence presented and the argument of appellee prove that appellant did not violate the purpose and intent of the rule. Appellee argues that it is improper for a police department to investigate another police department. If so, such investigation by the appellant did not involve a police function.

I do not question the right of the city to terminate the appellant. However, I do insist that such termination comply with the Due Process and Equal Protection Clauses of the State and United States Constitutions. The appellant’s right to equal protection was clearly disregardéd because he was the only officer terminated for violating the department, rule.

       In Petty v. City of Pine Bluff, 239 Ark. 49, 386 S.W.2d 935 (1965) we held the test on appeal under Ark. Stat. Ann. § 19-1605.1 (Repl. 1980) was whether the judgment was supported by substantial evidence. That holding was changed effective July 1, 1979 by ARCP Rule 52.


author: David Newbern, Justice.

text:
    Charles W. LOCKLEAR v. STATE of Arkansas
    CR 86-121
    721 S.W.2d 668
    Supreme Court of Arkansas
    Opinion delivered December 22, 1986

      Bob Remet, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Based on his plea of guilty, the appellant was convicted of capital murder and committed to the Arkansas Department of Correction on February 21,1977, with a sentence to imprisonment for life without parole. The judgment of conviction was entered February 21, 1979, and filed May 9, 1979.

The appellant, on March 14,1985, filed a petition pursuant to Arkansas Supreme Court and Court of Appeals Rule 37 asking that he be allowed to withdraw his plea of guilty. The trial court found that the petition was untimely because it was filed more than three years from the date of commitment and was thus barred by Ark. R. Crim. P. 37.2(c).

The petition raised the issue of ineffective assistance of counsel. The appellant contended he had been advised to plead guilty despite having been denied a speedy trial.

The appellant has raised no issue which, if found in his favor, would make his conviction absolutely void. The exception to the three year requirement of Rule 37.2(c) which we discussed in Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985), thus does not apply. The trial court was correct in denying the petition as untimely.

The only issue raised in the appellant’s brief on this appeal is whether the trial court sufficiently advised him when his guilty plea was accepted. That issue was not raised in the Rule 37 petition. That is an additional ground for affirmance. This court does not address alleged errors which the trial court was not given an opportunity to correct in the proceeding from which an appeal has been taken. See Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). If we were to reach the merits of the appeal, the record clearly shows the trial court advised the appellant fully and in complete compliance with Ark. R. Crim P. 24.4 through 24.6.

Affirmed.


text:
    FIREMEN’S PENSION FUND FOR THE CITY OF SILOAM SPRINGS v. Glen E. BROWN
    86-116
    720 S.W.2d 922
    Supreme Court of Arkansas
    Opinion delivered December 22, 1986

      John Dodge, for appellant.

      Mayo Law Office, by: William R. Mayo, for appellee.
   David Newbern, Justice.

The question in this case is whether pension payments from a Firemen’s Relief and Pension Fund should begin upon retirement or be made retroactive to the date of the disability upon which the retirement is based. We hold it was the intention of the general assembly, expressed in Ark. Stat. Ann. § 19-2205 (Repl. 1980), to make the pension payments beginning with retirement. Thus we reverse the circuit court’s ruling that the appellant must make the payments retroactive to the time the disability occurred.

The appellee, Glen E. Brown, sustained a back injury on his job as a city fireman on January 28, 1984. He received workers’ compensation benefits culminating in a joint workers’ compensation petition on January 23, 1985.

The appellee’s treating physician, Dr. Runnels, on May 7, 1984, wrote a letter stating the appellee could return to work but only as a dispatcher or to perform other light duties. On June 20, 1984, the city administrator wrote to Dr. Runnels, explaining that there were no light duty fireman positions and asking the likelihood that the appellee might return to full duty. There was additional correspondence between city officials and Dr. Runnels. The city’s position was that a fireman had to be able to do emergency physical work. The doctor’s position remained that the appellee could not perform such work.

While the uncertainty about the appellee’s prospect for returning to work continued, he, on July 19, 1984, requested a disability pension. The appellant pension fund board tabled the request at its meeting on August 13, 1984. At its September 10, 1984, meeting, the minutes show the board denied the pension “. . . due to the offer of reinstatement to active duty by authorization of his physician. . . .’’However, on November 12, 1984, the board granted the pension, to be effective December 1, 1984, conditioned upon the appellee turning in his equipment, obtaining acceptance by the fire chief, and signing a medical release. That vote occurred after Dr. Runnels wrote again on November 9,1984, that the appellee should have a light duty job and had sustained permanent disability of 15%.

The appellee turned in his equipment January 17,1985, and he filed the certificates of disability required by Ark. Stat. Ann. § 19-2206 (Repl. 1980) on April 15, 1985.

The appellee’s complaint in the circuit court alleged he was entitled to pension payments from January 28,1984, the date he was injured. In the alternative he sought payments dating from July 19,1984, the date of his first request. The circuit judge found that the applicable statutes do not specify the beginning date for disability retirement benefits. His memorandum opinion says that logic and fairness seem to require payment from the date of disability, and that the appellee’s receipt of workers’ compensation benefits does not bar receipt of pension payments. The judgment provides that appellee is entitled to receive pension payments from January 28, 1984, the date of disability.

The appellant pension fund board has raised two points on appeal. First, it contends the court’s decision is inconsistent with the intent of the statutory pension scheme. We agree with that point, and thus we need not address the second point which is that the workers’ compensation law makes it the exclusive remedy in these circumstances and thus that any pension recovery was barred during the time workers’ compensation benefits were being received by the appellee.

In our view the appellee and the trial court focused on the wrong aspect of § 19-2206. Although it deals with disability as a basis for retirement, it is nonetheless a retirement statute. Until the extent of disability is known, the pension fund board can make no determination with respect to retirement. The statute directs the pension payments to be made by the fund to the disabled fireman “if so retired” (emphasis added) rather than if so disabled.

The combined systems of workers’ compensation and retirement pension fund worked well in this case. The appellee was paid workers’ compensation benefits during his initial disability period and into January, 1985. The pension fund board made a liberal decision to grant the appellee retirement benefits beginning December 1, 1984, although he had not yet presented the certificates required by § 19-2206, and did not do so until April 15, 1985.

We have not been asked by the appellant pension fund board to hold that the retirement pension may begin no earlier than April 15, 1985, the date the certificates mentioned above were filed. Although § 19-2206 provides that no person shall receive a pension unless the certificates have been filed, obiter dicta in Firemen’s Relief and Pension Fund for the City of Pine Bluff v. Hughes, 229 Ark. 730, 318 S.W.2d 145 (1958), suggest the requirement may be waived. The appellant obviously intended to waive the requirement to the extent it made the granting of the pension conditional upon the filing of the certificates but permitted the payments to date from December 1, 1984. We take no position on the point.

The record shows the appellee received his first pension check on February 1, 1985, which presumably was at the end of the first pay period following his return of equipment. The board’s decision obviously was that the retirement began as of the time the equipment was returned, and that decision should be allowed to stand.

The trial court’s judgment is reversed, and the case is remanded for entry of a judgment consistent with this opinion.


author: Jack Holt, Jr., Chief Justice.

text:
    Larry HOWARD & C.R. HOLDER v. WOOD MANUFACTURING CO. & CARLSON & MAROTTI DISTRIBUTING CO.
    86-120
    722 S.W.2d 265
    Supreme Court of Arkansas
    Opinion delivered January 12, 1987

      Martin Law Firm, P.A., by: Thomas A. Martin, for appellants.

      Friday, Eldredge & Clark, by: Donald H. Bacon, for appellee Wood Manufacturing Co.

      Roy & Lambert, for appellee Carlson & Marotti Distributing Co.
   Jack Holt, Jr., Chief Justice.

The appellants, Larry Howard and C.H. Holder, were disqualified from a bass fishing tournament for allegedly turning in dead, previously frozen fish. Howard and Holder filed suit against the tournament coordinator, James Tanner, and against appellees, Wood Manufacturing Co., and Carlson & Marotti Distributing Co., two of the companies that furnished prizes for the competition. Howard and Holder sought damages for wrongful disqualification and for injuries allegedly suffered because of the defamatory remarks of Tanner. The trial court granted summary judgments dismissing Wood and Carlson & Marotti. It is from that decision that this appeal is brought. Howard’s and Holder’s lawsuit against Tanner is not shown to be final and the trial court made no finding as to whether hardship or injustice would occur if an immediate appeal were not allowed. We, therefore, dismiss the appeal.

Although none of the parties raised the issue of the appealability of the order granting summary judgment, we have held that it is a jurisdictional requirement which we raise ourselves even when the parties do not. Arkhola Sand & Gravel Co. v. Hutchinson, 289 Ark. 313, 711 S.W.2d 474 (1986).

Arkansas R. Civ. P. 54(b) provides:

When more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Although the summary judgments were granted as to Wood and Carlson & Marotti, Tanner has not been dismissed from this lawsuit and apparently the matter is still pending as to him. The judge did not make an express determination that there is no just reason for delay.

In Sherman v. G & H Transp., Inc., 287 Ark. 25, 695 S.W.2d 832 (1985), that plaintiff sued four defendants and the trial court granted summary judgment as to one of them. The trial court made no finding as to whether hardship or injustice would occur if an immediate appeal were not allowed. We found that plaintiffs case against the remaining three defendants was not shown to be final and dismissed the appeal based on Rule 54(b). In so dismissing the appeal, we held:

The rule is applicable in cases involving multiple claims or multiple parties, and it requires two things: First, the trial court must direct the entry of a final judgment as to one or more but fewer than all of the claims or parties. Second, the trial court must make an express determination that there is no just reason for delay, that is, there is danger of hardship or injustice which an immediate appeal would alleviate. Tulio v. Arkansas Blue Cross & Blue Shield, Inc., 283 Ark. 278, 675 S.W.2d 369 (1984). The second requirement was not met in this case.
As noted in Tulio, id., the fundamental policy of the rule is still to avoid piecemeal appeals, so that the discretionary power vested in the trial court is to be exercised infrequently, in harsh cases. Here the discretionary power was not exercised, and the order of summary judgment is not yet an appealable order.

Accord: Vermeer Mfg. Co. v. Vandiver, a/k/a Vandiver Equipment Co. & Ford Motor Co., 279 Ark. 218, 650 S.W.2d 244 (1983); Clark v. Fitzgerald, 270 Ark. 240, 605 S.W.2d 1 (1980); Arkhola Sand & Gravel Co. v. Hutchinson, supra; and 3-W Lumber Co. v. Housing Authority for the City of Batesville, et al., 287 Ark. 70, 696 S.W.2d 725 (1985).

The trial court’s express determination that there is no just reason for delay and its express direction to enter judgment, are essential prerequisites to finality, and without them, the appellate court has no jurisdiction to consider the appeal. Clark v. Fitzgerald, supra.

Appeal dismissed without prejudice. City of Marianna v. Arkansas Municipal League, 289 Ark. 474-A, 718 S.W.2d 946 (1986).


author: Darrell Hickman, Justice.

text:
    Anthony F. MANN, Eldon Ray COBB, Joseph M. MINER, Ronald Dale HARDEN, and Doyle JONES v. STATE of Arkansas
    CR 86-77
    722 S.W.2d 266
    Supreme Court of Arkansas
    Opinion delivered January 12, 1987

      John Wm. Murphy and Thomas E. Brown, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

The appellants, Anthony F. Mann, Eldon Ray Cobb, Joseph M. Miner, Ronald Dale Harden, and Doyle Jones, all inmates of Tucker Maximum Security Unit of the Arkansas Department of Correction, were charged by a felony information with second degree battery. The information alleged that the appellants struck George Staffney, a prison guard, in the face and chest, kicked him in the back, and stomped his arm during an incident which occurred one night at the prison. They were found guilty and sentenced as habitual offenders. Mann received a ten year sentence; Cobb received an eight year sentence; Miner and Harden received six year sentences; and Jones received a 12 year sentence.

The appellants raise seven points for reversal: (1) the second degree battery statutory provision, Ark. Stat. Ann. §41-1602 (1) (d) (iv) (Supp. 1985), is vague and therefore unconstitutional; (2) the sentence imposed upon each appellant is cruel and unusual punishment; (3) the trial court did not allow counsel an adequate opportunity to investigate previous convictions; (4) the in-court identification of the appellants was based upon a tainted out-of-court identification; (5) Harden’s and Miner’s sentences should be reduced because their prior felony conviction records only showed one previous conviction indicating representation by counsel; (6) the trial court erred in denying the appellants’ motion for a continuance; and (7) there was insufficient evidence to convict the appellants.

We will not consider the first five arguments raised by the appellants, because they were not raised at trial. Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986). The remaining two arguments are without merit, and we affirm the trial court’s ruling.

At approximately 10 p.m. on November 18, 1984, George Staffney was attacked by several inmates while patrolling the maximum security unit. This was the second attack on Staffney that evening. Certain inmates began lining up against a wall and whispering to each other while on a break. Staffney went to investigate and told another guard, David Price, to stay behind in case there was trouble. While trying to break up the group, Staffney was attacked, hit in the face with a fist and his night stick, kicked, and his arms stomped. He blacked out for a short period of time. Other officers responded to break up the attack. Later that evening, Staffney positively identified the five appellants as those who attacked him, and he testified as to what each appellant had specifically done to him that night. He also identified the appellants the day after the attack and later at a photo line-up.

Four days before trial, the state filed an amended information, alleging the appellants were habitual offenders, stating that it forgot to assert this statute in the original information. The appellants asked for a continuance, but it was denied. On appeal they concede they were not surprised but argue the denial of the continuance was prejudicial. The record indicates that the state gave the appellants’ counsel its file which contained a “rap sheet” showing the prior convictions of each appellant.

The denial of a motion for a continuance is within the sound discretion of the trial court, and the trial court’s ruling will be reversed only if there is an abuse of discretion. Stone v. State, supra; Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986). The burden is on the appellants to show there has been an abuse of discretion. Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983). The appellants must also make a showing of prejudice before we will consider the trial court’s denial of a continuance as an abuse of discretion which requires reversal. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). Here, the appellants’ counsel had knowledge of prior convictions and were not surprised when the amended information was filed. The amended information did not change either the nature or the degree of the crime. Harrison v. State, 287 Ark. 102, 696 S.W.2d 501 (1985); Finch v. State, supra. Appellants have demonstrated no prejudice and we find no abuse of discretion.

The appellants also argue there was insufficient evidence to convict them. The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Substantial evidence must be forceful enough to compel a conclusion beyond suspicion or conjecture, and on review it is only necessary to view the evidence which is most favorable to the appellee. Griswold v. State, 290 Ark. 79, 716 S.W.2d 767 (1986); Dix v. State, 290 Ark. 28, 715 S.W.2d 879 (1986); Williams v. State, 281 Ark. 387, 663 S.W.2d 928 (1984).

StafFney positively identified the appellants as his attackers and specifically described the facts surrounding the attack and the injuries he suffered. Other witnesses corroborated his testimony. On the other hand, the appellants denied their involvement. There was some confusion in the out-of-court identification process, but appellants did not object at trial to the admission of the identification evidence. Therefore, we have a case of disputed facts. We do not attempt to weigh the evidence or pass on the credibility of witnesses where testimony conflicts — that is left to the trier of fact. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986); Carrier v. State, 278 Ark. 542, 647 S.W.2d 449 (1983). The evidence here was sufficient to support the verdict.

Affirmed.


author: John I. Purtle, Justice.

text:
    Carolyn Jean MURDOCK v. STATE of Arkansas
    CR 86-122
    722 S.W.2d 268
    Supreme Court of Arkansas
    Opinion delivered January 12, 1987

      Grant & Berry, by: Sandra T. Berry, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was convicted of Theft of Property and Theft by Receiving. The trial court reduced the Theft by Receiving conviction to a misdemeanor and sentenced her to one year in the county jail. She was sentenced to 10 years on the Theft of Property conviction with the sentence to run consecutively to the one year in jail. The Court of Appeals affirmed by a tie vote. We granted a petition for review of that decision.

The sole argument on appeal is that the appellant was not afforded the assistance of counsel as required by the Sixth Amendment to the United States Constitution. We agree with the argument and reverse and remand for a new trial.

On the day of appellant’s trial she appeared in court with her retained counsel and informed the court she had terminated her attorney’s services. The court then dismissed the attorney. The court inquired as to whether she had new counsel and she replied in the affirmative and stated the new attorney could not be there that day but could be there a week later. The court caused a phone call to be made to this attorney and was informed by the attorney that he did not represent the appellant. The court informed the appellant she was going to trial on that date and gave her through the lunch hour (about 35 minutes) to employ new counsel.

After the noon recess the court again dismissed the attorney of record on both charges. The court also denied appellant’s request for time to employ another attorney. The court stated: “Well, you are going to trial Ms. Murdock. If he can be here, fine. If not, we’ll try you without him . . . .” The appellant later stated: “Judge, I would like to object to a trial at this time without an attorney.” The cases were tried over the continuous objection of the appellant.

We have many times held that an accused cannot be tried without the assistance of an attorney unless such right is voluntarily and intelligently waived. Philyaw v. State, 288 Ark. 237, 703 S.W.2d 459 (1986); Thorne v. State, 269 Ark. 556, 601 S.W.2d 886 (1980); and Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975). In Philyaw we adopted the ruling of Tollett v. United States, 444 F.2d 622 (8th Cir. 1971). Philyaw held that where an accused appears with retained counsel, the trial judge should not allow the retained counsel to withdraw until:

(1) new counsel has been retained; or
(2) a showing of indigency has been made and counsel has been appointed; or
(3) a voluntary and intelligent waiver of the right to counsel is established on the record.

The trial court did not comply with any of these alternatives and instead proceeded to try the defendant without the assistance of counsel. We are aware that the Philyaw opinion was decided after the trial court had ruled in the present case. However, the Constitutional right to defense counsel is as old as the Sixth Amendment (December 15, 1791). Addressing the trial court’s responsibilities in this area in Johnson v. Zerbst, 304 U.S. 458 (1938), the United States Supreme Court per Justice Black stated:

The constitutional right of an accused to be represented by Counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without Counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to Counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record. [304 U.S. 465]

In Thorne, supra, the trial court allowed the public defender to withdraw from the case on the day of the trial. A request for a continuance was denied. The court proceeded to trial with Mr. Thorne representing himself. He was convicted. He appealed and we reversed. We held that it was an abuse of the trial court’s discretion to force an accused to trial, over his objection, on the same day his counsel of record was allowed to withdraw. Certainly there is no hard and fast rule on when a refusal to grant a continuance will amount to an abuse of discretion. Some of the factors to be considered are enumerated in Thorne at page 561.

The Sixth Amendment is but one of many safeguards the people of the United States have deemed necessary to insure the fundamental rights of life and liberty. If this right to counsel is lost then justice may not be done. The average person does not possess the legal skills and training necessary to defend himself before a court which has the power to take life or liberty from him. Moreover, the state is almost always represented by learned and skilled lawyers. The right to counsel is of little value if it may be waived or forfeited through the ignorance of the accused. If the right to counsel is waived, a voluntary and intelligent waiver must appear upon the record. We have long considered a fundamental tenet of our system of justice to be the requirement that the trial court must see that the right to counsel is carefully guarded. Johnson v. Zerbst, 304 U.S. 458 (1938); Gideon v. Wainwright, 372 U.S. 335 (1963); and Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975).

Under the facts of the present case, the trial court should not have released retained counsel if the trial was to be held on that same day. Finding no intelligent waiver of the right to counsel, we reverse and remand for a new trial.

Reversed and remanded.

Glaze, J., not participating.


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

text:
    NORTH AMERICAN PHILLIPS COMMERCIAL ELECTRONICS CORPORATION v. GAYTRI CORPORATION, d/b/a PINE TREE MOTEL
    86-88
    722 S.W.2d 270
    Supreme Court of Arkansas
    Opinion delivered January 12, 1987
    [Rehearing denied February 9, 1987.]

      Jay E. Hoggard, for appellant.

      Guthrie, Burbank, Dodson & McDonald, by: David F. Guthrie, for appellee.

      Hickman and Hays, JJ., would grant. Glaze, J., not participating.

   John I. Purtle, Justice.

The appellant sued for money allegedly due on a leasing contract between the appellant’s predecessor in title and the appellee. The trial court dismissed the complaint finding that the appellant, a foreign corporation, was “doing business” in Arkansas at the time the contract was made without having first qualified to do business in the state as required by the Wingo Act, particularly Ark. Stat. Ann. § 64-1202 (Repl. 1980). That section prohibits a non-qualifying foreign corporation from enforcing a contract made in this state. The test to determine whether the threshold requirements for application of the penalty provisions of the Wingo Act have been met consists of two parts. First, it must be demonstrated that the contract was made by a non-qualifying foreign corporation which was “doing business” in the state; and second, it must be shown that the particular contract in question was made in Arkansas. Further, if it is raised as a defense, to the contention that the act applies, we must consider whether the Commerce Clause of the United States Constitution precludes the application of the sanctions of § 64-1202. Although the appellant has stated two points for reversal, it makes only one argument. The first point stated is simply that the Wingo Act does not apply to this transaction. Although the appellant discusses the terms of the contract providing that it would become effective only upon acceptance in Illinois, the conclusion stated is that it was therefore a contract in interstate commerce. That is also the burden of the appellant’s second stated point. No argument whatever has been made that the appellant was not “doing business” in Arkansas or the contract was not “made” here except to sustain the appellant’s contention that the transaction is protected by the Interstate Commerce Clause. Since we find the appellant did not demonstrate that this transaction fell within the protection of the Commerce Clause, we affirm.

Sometime in late 1980 the appellee made a telephone call to Sylvania’s office in Dallas, Texas, inquiring about the possibility of buying or leasing television sets for the Pine Tree Motel, which is owned by appellee. As a result of the telephone call, a representative from Sylvania came to El Dorado, Arkansas, to explore the matter further. The visit by Sylvania culminated in an agreement on December 11,1980, whereby the appellee leased 20 television sets and made the first payment of $338.57. Sylvania also purchased from the appellee the television sets being replaced. Soon after delivery of the new sets they proved defective, and repairs were made by local repair shops and by representatives of Sylvania who worked out of Texas. Title to the new television sets was to be retained by Sylvania until the full agreed price was paid.

Sylvania, an Illinois corporation, sold the contract to the appellant, a Delaware corporation, and the payments on the contract were mailed thereafter to Hundred East Credit Corporation, New York, New York. The contract’s express terms stated it would not become effective until it was signed by Sylvania in Schiller Park, Illinois, and that the contract would be governed and construed according to the laws of the State of New York.

In claiming that this transaction was entitled to protection as interstate commerce under the Commerce Clause, and thus not subject to state regulation, the appellant presented no witness to describe the nature of its business dealings in Arkansas. Its counsel merely cross examined the appellee’s witness with respect to the nature of the transaction.

Our previous decisions interpreting § 64-1201 have concentrated on whether the particular transaction at hand was to be regarded as “intrastate” or “interstate.” In Union Planters National Bank of Tennessee v. Moore, 250 Ark. 272, 464 S.W.2d 786 (1971), we reviewed the question whether the appellant, contractual successor to another Tennessee corporation called Auto-Kar, could enforce a contract of sale of automatic car washing equipment to the appellee, an Arkansas citizen. AutoKar had not registered to do business in Arkansas. Chief Justice Harris said:

Nor are we impressed by the argument that this was an interstate transaction. Hogan v. Intertype Corporation, [136 Ark. 52, 206 S.W. 58] points out that one test laid down by Arkansas cases differentiating an interstate transaction from an intrastate transaction is the ownership of the property after it arrives in this state. It has already been pointed out that title was retained by Auto-Kar. Actually, all of the facts heretofore mentioned support the view that this is an intrastate transaction. Let it be remembered that this is not the case of a resident of this state ordering goods from a foreign corporation, and the foreign corporation honoring that order by shipping the goods to the purchaser. To the contrary, the essential acts necessary to putting the car wash into operation were carried out in this state, viz, the contract was entered into in this state, and supervision for construction was furnished at the site. [250 Ark. at 277, 464 S.W.2d at 789]

Although our opinion in Union Planters did not cite the Commerce Clause as the basis of it, we recognized an interstate commerce exception to the application of the statute. We are therefore left with the pure federal law question whether and under what circumstances companies engaged in interstate commerce are protected by the Commerce Clause, United States Constitution, art. 1, § 8, cl. 3.

The opinion of Judge Overton in Uncle Ben’s Inc. v. Cromwell, 482 F.Supp 1149 (E.D. Ark. 1980), explains that in some instances companies regularly, and continuing to be, engaged in interstate commerce may so “localize” their businesses that they may properly be subject to state regulation, citing generally, Union Brokerage Co. v. Jensen, 322 U.S. 202 (1944), and Eli Lilly & Co. v. Sav-On-Drugs, 366 U.S. 276 (1961). Those cases make it clear that the Supreme Court, by reviewing the overall activities of the company, determines whether a company generally engaged in interstate commerce has “localized” its business in a particular state so as to submit itself to regulation.

The United States Supreme Court has held that a state may deny a foreign corporation the right of access to the state courts even though the corporation may be engaged in interstate commerce at the time. Eli Lilly & Co. v. Sav-On-Drugs, Inc., supra. In the Lilly case, New Jersey had enacted a statute substantially the same as the Arkansas statute. In upholding the right of New Jersey to require foreign corporations to register in the state, it was pointed out that a state does not have such power over purely interstate transactions. The opinion went on to state that the Commerce Clause does not prevent states from enacting statutes relating to foreign and interstate commerce. However, the state statute must not be a burden on interstate commerce and must be general in scope. Union Brokerage Co. v. Jensen, supra. Union declared that the state and federal functions in such matters may move freely within the orbits of their respective purposes without impinging upon one another. The Union opinion further stated that a state has a legitimate interest in protecting its citizens who have dealings with foreign corporations and the Commerce Clause does not preempt appropriate legislation by the state.

What constitutes interference in interstate commerce is a question of fact to be decided in each case. The concluding paragraph in Union stated:

The Commerce Clause does not deprive Minnesota of the power to protect the special interest that has been brought into play by Union’s localized pursuit of its share in the comprehensive process of foreign commerce. To deny the States the power to protect such special interests when Congress has not seen fit to exert its own legislative power would be to give an immunity to detached aspects of commerce related to the objectives of the Commerce Clause. By its own force that Clause does not imply relief to those engaged in interstate or foreign commerce from the duty of paying an appropriate share for the maintenance of the various state governments. Nor does it preclude a State from giving needful protection to its citizens in the course of their contacts with businesses conducted by outsiders when the legislation by which this is accomplished is general in its scope, is not aimed at interstate or foreign commerce, and involves merely burdens incident to effective administration.

In the present case it is clear that the appellant did not demonstrate that its operations were of such nature as to preclude the State from exercising its right to require the appellant to comply with the Wingo Act. Nothing presented by the appellant or, for that matter, by the appellee shows that the appellant was entitled to the protection of the Commerce Clause. To have the advantage of that protection and to avoid application of § 64-1202 it was incumbent upon the appellant to show that despite its having done business here it had not so “localized” its business in the sense referred to in the United States Supreme Court cases cited above.

Affirmed.

Hickman, and Hays, JJ., dissent.

Glaze, J., not participating.

Darrell Hickman, Justice,

dissenting. I dissent because in my judgment the Wingo Act should not be applied in this case.

The Wingo Act is a statute, penal in nature, that prohibits a foreign corporation from enforcing a contract made in this state. The act cannot apply to interstate transactions for obvious reasons. There is the additional question of whether this appellant was “doing business in the State of Arkansas.”

The appellee called an out-of-state company to initiate this agreement. There is no evidence that the appellant (the company’s predecessor actually) regularly did business in Arkansas, maintained a sales staff here or even did a substantial portion of its business in Arkansas. It was brought out that the appellant was a national company. Therefore, we have a business transaction occurring in Arkansas only because one of our citizens brought an out-of-state firm into this state.

The documents themselves, while signed in Arkansas, provided expressly that the law of the State of New York would apply, and “[t]his agreement is subject to acceptance by the lessor at its offices in Schiller Park, Illinois.”

The majority misunderstands the legal issue. The most significant question is whether the contract was made in Arkansas, and we should look at our cases dealing with this issue in connection with the Wingo Act. That is what the statute requires, and that usually means the place where the final act occurs.

Leflar discusses this law of the place of making in Leflar, American Conflicts Law, 3rd ed. § 145, pp. 297, 298 (1977):

Since it is important, however, it sometimes becomes necessary to determine where the contract was made. Ordinarily this will not be difficult, but sometimes the acts of chaffering which constitute offer and acceptance are scattered over more than one state. The authorities are reasonably clear that, in this event, the contract is made at the time and place ‘where the last act necessary to the completion of the contract was done — that is, where the contract first creates a legal obligation.’ Frequently this is controlled expressly by terms insisted upon by the parties who either by offer or counteroffer designate particular acts as decisive to the completion of the contract. Thus an order blank furnished to traveling salesmen for use by customers may declare expressly that no contract is to arise until the order is approved at the home office, or an application for an insurance policy may state that the policy is not to take effect until the first premium is paid during the life and good health of the applicant. The place where such last decisive acts are done is normally the place where the contract is made. Negotiable instruments and deeds usually become legally effective by delivery, therefore the place of delivery is the place of contracting. An offer may contemplate acceptance by mail or telegraph, in which event it is usually held that the acceptance is effective and the contract is completed by the contemplated mailing of the letter or sending the telegraph of acceptance. If the law of the place where the accepting letter is mailed or other message sent declares for any reason that no contract is thereby completed, then the contract will be completed at the next step in the succession of events, which will be at the time and place of receipt of the acceptance by the offeror. The time and place at which an unconditional acceptance becomes effective, whether by voluntary act of the parties or by operation of law, is the time and place of making the contract.

In Hough v. Continental Leasing Corp., 275 Ark. 340, 630 S.W.2d 19 (1982), a Wingo Act case, we said:

. . . The trial court was correct in finding that the contract was made in Mississippi, where final acceptance occurred. As stated in Goode v. Universal Plastics, Inc., 247 Ark. 442, 445 S.W.2d 893 (1969):
. . . The rule is stated in Leflar’s American Conflicts Law (1969), § 144 at page 353:
The authorities are reasonably clear that, in this event, the contract is made at the time and place ‘where the last act necessary to the completion of the contract was done — that is, where the contract first creates a legal obligation.’
The contract was therefore a Mississippi contract in interstate commerce and Continental may enforce it in the courts of Arkansas despite its status as a nonqualifying corporation. Brown Broadcast, Inc. v. Pepper Sound Studio, Inc., 242 Ark. 701, 416 S.W.2d 284 (1967).

When we refer to Goode v. Universal Plastics, Inc., 247 Ark. 442, 445 S.W.2d 893 (1969), relied on in Hough, we find a foreign corporation, not registered to do business in Arkansas, soliciting orders in Arkansas, for covers it manufactures for telephone books. The contract provided it was subject to acceptance by the Tennessee company and Tennessee law applied. We said:

The solicitor of a contract may by its terms dictate the mode of acceptance by which legal obligations will arise thereunder. Mechanics Lumber Co. v. Yates American Machine Co., 181 Ark. 415, 26 S.W.2d 80 (1930). The terms of the instrument before us make it clear that no contract came into being until acceptance by appellee at its home office in Tennessee. Upon approval in Tennessee ‘the last act necessary to completion of the contract was done.’ The contract was therefore a Tennessee contract and appellee may enforce it in the Arkansas courts despite its status as a nonqualifying corporation. Brown Broadcast, Inc. v. Pepper Sound Studio, Inc., supra.

The Wingo Act cannot be used to deny a foreign corporation access to our courts even if it was “doing business” in Arkansas, if the contract was not made in this state. That was the holding in UPI v. Hernreich, 241 Ark. 36, 406 S.W.2d 317 (1966). There, we discussed the Wingo Act and how it should be applied:

The statute (§ 64-1202) has two distinct penalty provisions. The first provision is a fine to be collected against any non-domesticated foreign corporation that does business in this State. This fine provision applies regardless of where any contract may have been made, but the statute does not state that the assessment of the fine also makes the contract void. The second penalty provision in the statute is the one here in issue, and is contained in this statutory language: ‘. . . and as an additional penalty, any foreign corporation which shall fail or refuse to file its articles of incorporation or certificate as aforesaid, cannot make any contract in the state which can be enforced by it either in law or equity . . .’ It will be observed that by the quoted language the courts of this State are closed to any non-domesticated foreign corporation only when seeking to enforce any contract made in this State. So the place of the making of the contract becomes most material in the case at bar, assuming any intrastate commerce is involved and that any such would taint the entire transaction.

The court concluded:

We have repeatedly held that § 64-1202 is a penal statute and must be strictly construed in favor of those against whom the penalty is sought. Alexander Film Co. v. State, 201 Ark. 1052, 147 S.W.2d 1011; Murray Tool Co. v. State, 203 Ark. 874, 159 S.W.2d 71. In thus strictly construing the statute in favor of the appellant, we must conclude that the statute closes the doors of the State courts to a non-domesticated foreign corporation only on those actions involving contracts made in this State.

The majority does not really decide this case on the question of where the contract was made; rather it goes off on the question of interstate commerce, which is only one aspect of the question. The Wingo Act is entirely penal in nature — it denies irrevocably a corporation the right to litigate its claim. Therefore, it is important to first strictly construe the statute against the one using it.

This is what we said in Leenerts Farms v. Cranco, 265 Ark. 359, 578 S.W.2d 229 (1979), about applying the Wingo Act:

In Alexander Film Company v. State, Use of Phillips County, 201 Ark. 1052, 147 S.W.2d 1011 (1941), we pointed out that the Wingo Act, Ark. Stat. Ann. §§ 64-1201 and 64-1202 (Repl. 1966), is a penal statute which must be strictly construed in favor of those against whom the penalty is to be imposed. Furthermore, in construing a contract to determine whether it is valid or invalid, we find in 17 Am. Jur. 2d Contract § 254 the following:
‘It is a general principle that where a contract is fairly open to two constructions, by one of which it would be lawful and the other unlawful, the former will be adopted. Thus, if a contract is capable of a construction which will make it valid, legal, effective, and enforceable, it will be given that construction if the contract is ambiguous or uncertain. A construction which renders the contract valid is preferred to one which renders it invalid, and it will not be construed so as to be invalid unless that construction is required by terms of the agreement in the light of the surrounding circumstances.’
When the record in this case is considered in the light of the penal nature of the Wingo Act and the principle that a contract should be construed where possible to make it valid, we must hold that the trial court erred in ruling that the contract sued upon was an Arkansas contract within the provision of Ark. Stat. Ann. §§ 64-1201 and 64-1202 (Repl. 1966). The fact that the contract for purchase of the real estate was to be closed in Arkansas would not make a contract entered into out of the State of Arkansas invalid under Ark. Stat. Ann. § 64-2102 (Repl. 1966).

This contract was not made in Arkansas and according to most of our cases the Wingo Act should not apply. I regret our decision in this case only further confuses the question. I would reverse the judgment of the trial court and remand the matter for a trial.

Hays, J., joins in the dissent.