author: Elsijane T. Roy, Justice.

text:
    ARKANSAS SAVINGS AND LOAN ASSOCIATION BOARD et al v. GRAND PRAIRIE SAVINGS AND LOAN ASSOCIATION, in Organization, Stuttgart, Arkansas
    76-275
    547 S.W. 2d 109
    Opinion delivered March 7, 1977
    (Division II)

      Harvey L. Bell, by: Ted Goodloe, for appellants.

      Malcolm R. Smith and Catlett & Henderson, for appellee.

      Wright, Lindsey & Jennings, for intervenor-appellants.
   Elsijane T. Roy, Justice.

Appellee Grand Prairie Savings and Loan Association filed an application for a charter to operate a savings and loan association at Stuttgart. Appellant First Federal Savings and Loan Association of Stuttgart filed a protest to the application.

At a hearing on the application November 18, 1975, only four of the five members, including the chairman, of appellant Arkansas Savings and Loan Association Board were present. At the conclusion of the proceedings two members of the Board voted to grant the application and one member voted to deny it. The chairman then voted to deny it and stated that “by a vote of two to two the application must fail.”

The decision of the Board was appealed to the Pulaski Circuit Court which decided the application had received the requisite number of votes under the provisions of Rule II (A) (4), adopted by the Board on August 27, 1973, and directed the Board on remand to enter an order granting the application. It is from the decision of the Pulaski Circuit Court that the Board has taken this appeal.

Rule II (A)(4) reads:

A quorum shall be required for any meeti ig of the Board and shall consist of not less than a majority of the authorized number of members of the Board. At least three Board members eligible to vote must be present in order to consider any matter before the Board. A majority vote of the Board members present and eligible to vote shall be required for approval of any action. All members present except the Chairman shall be allowed to vote on all matters submitted to a vote of the Board. The Chairman can (but is not obligated to) vote whenever his vote will affect the result; that is, he can vote to break a tie or when his vote is necessary to determine a majority vote of the Board.

Protestant First Federal was granted permission to intervene in the appeal, and the points for reversal urged by it and the Board will be discussed together.

The first issue presented is whether the trial court erred in holding the chairman of the Board illegally cast his vote to cause a tie vote.

Appellants cite cases holding that an administrative agency’s interpretation of its own rule is controlling unless plainly erroneous or inconsistent. We recognize a state agency’s interpretation of its regulations is highly persuasive but not controlling. Brawley School District No. 38 v. Kight, 206 Ark. 87, 173 S.W. 2d 125 (1943). Courts look to the administrative construction of a regulation “if the meaning of the words used is in doubt.” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 65 S. Ct. 1215, 89 L. Ed. 1700 (1945).

However, we do not find the meaning of the words in doubt and agree with the conclusion of the trial court that the Rule does prohibit the chairman from voting except when his vote is necessary to break a tie or to determine a majority vote of the Board.

In view of this determination of the meaning of the Rule it is unnecessary for us to discuss other arguments made by appellants concerning its construction.

However, we find merit in appellants’ contention that it was error for the circuit court to remand this matter to the Savings and Loan Board with direction to grant a charter without reviewing the findings of fact and legal conclusions of the Board. In effect, the review of the circuit court amounted to an interlocutory ruling involving procedure only and was not a complete judicial review.

The findings of fact entered by the Board supported denial of the application. The conclusions of law of the Board state inter alia that appellee did not establish the following:

(1) That there is a public need for the proposed association ....
(2) That the operation of the proposed association will not unduly harm any other existing association ....

Therefore, it was inappropriate for the circuit court to direct the granting of a charter since the only findings in the record are in support of a denial of the charter, not in support of granting one.

For the same reasons it would be inappropriate on the record before us for this Court to decide whether the charter should be granted.

In First State Building & Loan Assn. v. Ark. S&L Bd., 257 Ark. 599, 518 S.W. 2d 507 (1975), we stated:

* * * We do not know, from the Order, what specific facts the Board relied upon in granting the application and we will not attempt to supply the deficiencies in an administrative Order by weighing evidence which is the responsibility of the administrative agencies. (Italics supplied.)
# $ jfc
This Court held in Arkansas Savings and Loan Board et al v. Central Arkansas Savings and Loan, 256 Ark. 846 (1974) that the requirements of Ark. Stat. Ann. § 5-710, Supp. 1973, are primarily for the benefit of the reviewing Court and cannot be waived by the parties.
* * *
The judgment is reversed and the cause remanded through the Circuit Court to the Board for such further proceedings as may be necessary.

Accordingly this cause is also remanded to the circuit court with directions to remand to the Board for such further proceedings as may be necessary.

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

       Use of the word “appellants” will include appellant-intervenor and the Board.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Tom CONE Jr., d/b/a STONE LUMBER COMPANY v. Eugene A. JURCZYK and Phyllis JURCZYK, Husband and Wife et al
    76-331
    547 S.W. 2d 108
    Opinion delivered March 7, 1977
    (Division II)

      Herbert L. Ray, for appellant.

      Paul E. Hopper, for appellees.
   Darrell Hickman, Justice.

The Chancery Court of Sharp County dismissed the complaint of Tom Cone, Jr., doing business as Stone Lumber Company, because of a failure to comply with a requirement of the Arkansas Materialmen’s law.

The lumber company supplied materials used in the construction of a house owned by Eugene A. Jurczyk and his wife, Phyllis, which is located in Sharp County, Arkansas. The company claimed over $5,000.00 was due and gave notice to the Jurczyks that a lien would be filed against their property within ten days from the date of the notice. However, the statement of account or the lien for material was recorded in another county, Fulton County. Within fifteen months after the statement was filed in Fulton County, a lawsuit was filed in Sharp County, Arkansas to foreclose the lien. A demurrer was filed asking for a dismissal because the statement of account or lien had been filed in the wrong county. The chancellor sustained the demurrer and dismissed the lawsuit.

Stone Lumber Company argues on appeal that the Jurczyks had notice and the recording of the statement in the wrong county was an inadvertent error which should not result in dismissal of the lawsuit.

We have held that a materialmen’s lien is an extraordinary remedy that is not available to most merchants, and there must be substantial compliance with the technicalities of the lien law. Christy v. Nabholz, 261 Ark. 127 (1977), Rasmussen v. Horner Co., Inc., 255 Ark. 1030, 505 S.W. 2d 225 (1974). The lien law clearly states the account and claim will be filed in the county where the property is located. Ark. Stat. Ann. § 51-613 (Repl. 1971). In this case, the notice stated a claim would be made against the real estate of the Jurczyks, but the claim itself was filed in another county. Therefore, the owner of the real property, or anyone who holds a mortgage on the property, or is interested for any reason, would not have any notice that a claim was being made against the property. It follows that filing the statement of account in another county is not substantial compliance with the lien law. This doesn’t mean the materialman has no remedy; it means the land cannot be sold to satisfy the claim. The remedy is a suit against the person or company, or both, who purchased the material.

Affirmed.

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


author: Marian F. Penix, Special Justice.

text:
    VALMAC INDUSTRIES, Inc. v. CHAUFFEURS, TEAMSTERS & HELPERS LOCAL UNION NO. 878 Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
    76-171
    547 S.W. 2d 80
    Opinion delivered March 7, 1977

      Bridges, Young, Matthews & Davis, for appellant.

      Laser, Sharp, Haley, Young <2? Boswell, for appellee.
   Marian F. Penix, Special Justice.

Appellant Valmac Industries, Inc. and appellee Chauffeurs, Teamsters and Helpers Local Union No. 878, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, entered into a negotiated contract. This contract contained the following automatic renewal provision:

“This Agreement shall become effective January 19, 1972, and shall remain in full force and effect until January 18, 1975, and shall continue in force from year to year thereafter unless written notice of desire to cancel or terminate this agreement is served by either party upon the other at least sixty (60) days before the expiration date.”

In the following section the contract provided:

“Where no such cancellation or termination notice is served and the parties desire to continue said Agreements but also desire to negotiate changes or revisions in the Agreements, either party may serve upon the other a notice at least sixty (60) days prior to the expiration date or the expiration date anniversary in any subsequent contract year, advising that such party desired to revise or change terms or conditions of such Agreements.”

Neither party served written notice of desire to cancel or terminate prior to the expiration date of January 19, 1975. On November 13, 1974 an agent of the appellee served written notice upon appellant of appellee’s desire to revise and/or change terms and/or conditions of the contract for the period of time beginning January 18, 1975. This written notice of appellee’s desire to revise or change is not tantamount to a written notice of desire to cancel or terminate. If this were the case, each time a party to this type of negotiated contract indicated a desire to revise or change, he would place himself in peril of terminating the contract altogether. There was a very good reason for two sections to be placed together in the contract. Each party wanted a method of suggesting a change or revision without the risk of terminating the contract. The appellant cites many cases involving labor contracts. The two sections in this contract were written into the contract to avoid the situations arising in the cited cases.

The problem existing in this case is contractual. This Court has held in Stoops v. Bank of Brinkley, 146 Ark. 127, 135, 225 S.W. 593, 595 (1920), and again in Lee Wilson & Co. et al v. Fleming, 203 Ark. 417, 156 S.W. 2d 893 (1941):

“The first rule of interpretation is to give to the language employed by the parties to a contract the meaning they intended, and it is the duty of the court to do so from the language used where it is plain and unambiguous.”

The language of the contract between appellant and appellee is plain, clear and simple, and expresses the intent of the parties at the time the contract was executed. To construe the appellee’s letter desiring revision or change as notice of termination would be to take from the parties their rights to contractually agree upon a lawful procedure for the termination or revision of their labor agreement.

Appellant has plead equitable estoppel. The elements of equitable estoppel are not present. In Tarver v. Taliaferro, 244 Ark. 67, 423 S.W. 2d 885 (1968) this court stated:

“Estoppel involves the conduct of both parties and exists when the fault of one party induces the other to detrimentally alter his position.”

The appellee never stated nor wrote that they considered the contract terminated, therefore there was nothing for the appellant to rely on to its own detriment.

Accordingly, we affirm.

Special Justice Damon Young joins in this opinion.

Harris, C.J., and Holt, J., not participating.

Byrd, J., dissents.


author: George Rose Smith, Justice.

text:
    Robert BRADY v. STATE of Arkansas
    CR 76-205
    548 S.W. 2d 821
    Opinion delivered March 14, 1977
    (Division 1)
    [Rehearing denied April 25, 1977.]

      Lee Ward, for appellant.

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

The appellant, 30, was charged with a misdemeanor: possession of six tablets of sodium butisol, a Schedule III controlled substance. Ark. Stat. Ann. § 82-2609 (Repl. 1976). The jury found him guilty and imposed the maximum sentence, imprisonment in the county jail for one year and a $250 fine. For reversal he contends that the trial court should have allowed him to prove that the retail value of the pills was about four cents each.

The pivotal issue of fact was whether Brady had possession of the pills. Two police officers testified that, acting upon a tip, they concealed themselves, watched a certain grassy area in Corning, nnd saw Brady drive up, drop a small bottle that was found to contain the pills, and drive away. Brady testified positively that he does not use drugs, he did not drop the bottle of pills, and the officers’ story was fabricated.

Defense counsel, in his opening statement to the jury, stated that expert testimony would show that the pills were worth less than thirty cents. The State, in presenting its case in chief, elicited the sheriff’s opinion that the street value of the pills was two dollars each. Defense counsel did not object to that testimony. Later on the defense proffered, in chambers, the testimony of a pharmacist that the pills were tranquilizers worth about four cents each and were frequently prescribed by physicians. The court sustained the State’s objection, on the ground that possession of any quantity of the drug, regardless of price, was a violation of law unless obtained by prescription.

Counsel for the appellant argues that the proffered proof, even if ordinarily inadmissible, should have been received in rebuttal of the State’s evidence of street value. That contention may very well be meritorious. Wigmore on Evidence, § 15 (3d ed., 1940); McCormick on Evidence, § 57 (2d ed., 1972). We prefer, however, to rest our decision upon a simpler rule.

When, as in Arkansas, the jury fixes the punishment for criminal offenses, evidence in aggravation or mitigation of an offense is often admissible to assist the jury in arriving at a fair verdict. Wilson v. State, 247 Ind. 680, 221 N.E. 2d 347 (1966); Dobbins v. State, 21 Old. Cr. 403, 208 P. 1056 (1922); Stroud v. State, 159 Tenn. 263, 17 S.W. 2d 899 (1929). Here the prosecution, pursuant to that rule, had introduced evidence of street value, tending to suggest that Brady was a “pusher.” That testimony is now challenged as being based on hearsay, but the trial judge found that the sheriff was qualified to state an expert opinion, which may be derived from facts learned by hearsay. Ark. State Highway Commn. v. Russell, 240 Ark. 21, 398 S.W. 2d 201 (1966). Brady should have been permitted to prove in mitigation that the pills were merely tranquilizers of nominal value. It certainly cannot be said with confidence that the error was not prejudicial. Brady had no prior criminal record, but the jury imposed the maximum sentence — a year in jail and á $250 fine — for what might have been found to be a trivial offense if the proffered proof had been admitted.

Reversed and remanded for a new trial.

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


text:
    Norman Wayne JOURNEY v. STATE of Arkansas
    CR 76-220
    547 S.W. 2d 433
    Opinion delivered March 14, 1977
    (Division 2)

      Gene Worsham, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis & John W. Hall Jr., Dep. Pros. Atty., for appellee.
   George Rose Smith, Justice.

Upon this second appeal, still without a trial on the merits, the facts and, essentially, the issues of law are substantially the same as they were on the first appeal. Journey v. State, 257 Ark. 1007, 521 S.W. 2d 210 (1975), cert. den., 423 U.S. 866 (1975). We again affirm the trial court’s denial of the appellant’s plea of double jeopardy, for much the same reasons that were stated in our first opinion.

In 1973 Journey was acquitted in a federal court at St. Louis upon a charge of transporting stolen jewelry in interstate commerce (from St. Louis to Little Rock). He was then charged in Pulaski County, Arkansas, with having knowingly possessed the same stolen property in Little Rock. He pleaded double jeopardy as a defense. Under the statutes then in force, Ark. Stat. Ann. §§ 43-1224.1 et seq. (Supp. 1975), we held that the plea was correctly denied, because the two charges did not involve the same offense within the legislative intent.

The pertinent statutes were then replaced by § 41-108 of the Criminal Code of 1976. Ark. Stat. Ann. § 41-108 (Grim. Code 1976). Journey renewed his plea of former jeopardy, on the ground that the Criminal Code provision greatly expanded the earlier statutory protection against double jeopardy. We agree that there are some differences in the two statutes, but we find no substantive change that entitles Journey to a dismissal of the charge now pending in the state court.

Section 41-108 of the Criminal Code consists of two subsections. Subsection (1), as the Commentary explains, closely approximates the substantive coverage of §§ 43-1224.1 and 43-1224.2, which we considered in the first opinion. Both the older statute and the newer one recognize the defense of former jeopardy when the two offenses arise from the same course of conduct and fall within a legislative purpose to prevent substantially the same harm or evil. Upon the first afjpeal we found no merit in Journey’s reliance upon the older statute as a basis for a claim of double jeopardy. The differences in the wording and in the apparent intent of the two acts are so slight that our earlier opinion is controlling with regard to Subsection (1) of § 41-108 of the Criminal Code.

Subsection (2), however, is new in that, as indicated in the Commentary, its enactment stemmed from the notions of fairness and finality that underlay the decision in Ashe v. Swenson, 397 U.S. 436 (1969). The test, however, under Subsection (2) is whether the first judgment — here the acquittal in the federal court — required “a determination inconsistent with a fact which must be established for the conviction” in the second prosecution. Journey argues that an essential fact — his possession of the jewelry in Little Rock with the knowledge that it was stolen — was necessarily found not to exist in the St. Louis case. That precise argument, however, was considered and rejected on the first appeal, w'hen we said: “It would appear, moreover, that one might ‘cause to be transported’ in interstate commerce, stolen goods he had never possessed or even seen. ” That pronouncement is still a correct statement and answers the argument that is made under Subsection (2).

Affirmed.

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


author: John A. Fogleman, Justice.

text:
    City of BENTON v. Mrs. Arthur CONNERLY and Mrs. Frances K. WOOD
    76-336
    547 S.W. 2d 432
    Opinion delivered March 14, 1977
    (Division II)

      Richard L. Mattison, for appellant.

      House, Holmes & Jewell, for appellees.
   John A. Fogleman, Justice.

On this appeal, appellant questions the propriety of a judgment notwithstanding the verdict in an eminent domain proceeding. The judgment for the amount of compensation to the landowner was based upon the testimony of the only value expert witness who testified for the appellee landowners. The testimony of appellant’s only value expert had been stricken by the trial judge during the course of the trial upon the landowners’ motion. The verdict was for an amount less than that determined by either expert. The judgment was rendered on May 27, 1976, on appellee’s timely motion filed December 8, 1975.

Appellant is in no position to question the action of the trial court on appeal. Rule 2c of the Uniform Rules for Circuit and Chancery Courts, Vol. 3A, Ark. Stat. Ann. (Supp. 1975) requires that, if a respondent opposes a pleading as defined by Rule 2, he shall file a response, including a brief supporting statement of the legal and factual reasons in support thereof within ten days after the service of the pleading upon him. Even though appellees’ motion was filed in strict compliance with Rule 2a and 2b, no response was ever filed by appellant. Appellant makes some rather persuasive arguments here, which, so far as the record discloses, have never been presented to the trial court. Consequently, these issues are raised for the first time on appeal. Since this is so, we cannot consider them. Hendrix v. Hendrix, 256 Ark. 289, 506 S.W. 2d 848.

The judgment is affirmed.

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


text:
    Mary BOUSQUET v. STATE of Arkansas
    CR 76-224
    548 S.W. 2d 125
    Opinion delivered March 14, 1977
    (Division II)

      Christopher C. Mercer, Jr. & James P. Massie, for appellant.

      Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Mary Bousquet has appealed from her conviction of disorderly conduct and of interference with a law enforcement officer. She asserts one ground for reversal on each conviction. She contends that Árk. Stat. Ann. § 41-2908 (Grim. Code, 1976) defining disorderly conduct is unconstitutional as applied to her and that there is no factual support for finding her guilty of interference with a law enforcement officer. We disagree on both points and affirm.

Appellant was found guilty of violation of Ark. Stat. Ann. § 41-2908 (l)(c). The pertinent part of the statute defining the crime of disorderly conduct reads as follows:

(1) A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(c) in a public place, uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response;

Appellant first argues that the words she was said to have used were not “fighting words” in themselves and certainly were not under the circumstances. In considering the matter we must of course view the evidence in the light most favorable to the state.

Officer Keathley of the Little Rock Police Department was employed, while off duty, as a security watchman at a Dillard department store on March 8, 1976, when he observed appellant, who appeared to him to be watching for someone. Later she started going up on an escalator and, addressing him, said:

Are you going to follow me upstairs? ... I’m talking to you you mother f-pig!

Keathley testified that he then dee ded to arrest her, but she continued her tirade, saying:

Follow me outside you mother f_and son-of-a-bitch.

Keathley followed her outside the store, exhibited his badge, identified himself as a police officer, informed appellant she was under arrest, grabbed her right arm, and was slapped by her. While he was taking her back into the store, according to the officer, she continued her epithets. Keathley said that he asked a saleslady to call the police station and, when she placed the call and handed him the telephone, he advised someone there that he needed a car. He said that he informed appellant she could use the telephone, but before he did so, she had grabbed him by the shirt, pushed him “against the collar” and again addressed him profanely. Keathley said that, after he told her that he would handcuff her unless she behaved, she “settled down” but had made other obscene statements and a crowd had begun to gather. A clerk in the store heard appellant curse the officer and saw that when the officer brought appellant through the store, his shirt was torn and he had a red print on his chest.

The words spoken were not materially different from those considered by us in Lucas v. State, 254 Ark. 584, 494 S.W. 2d 705, vacated 416 U.S. 919, 94 S. Ct. 1917, 40 L. Ed. 2d 227 (1974), reaffirmed when viewed in the light of Lewis v. City of New Orleans, 415 U.S. 130, 94 S. Ct. 970, 39 L. Ed. 2d 214 (1974), as Lucas v. State, 257 Ark. 726, 520 S.W. 2d 224, appeal dismissed 423 U.S. 807, 96 S. Ct. 17, 46 L. Ed. 2d 28 (1975). We held that this language met the “fighting words” test of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), and that the statute there in question, Ark. Stat. Ann. § 41-1412 (Repl. 1964), was constitutional in the light of Lewis v. City of New Orleans, supra. Again, in Hammond v. State, 255 Ark. 56, 498 S.W. 2d 652, we held similar language met the Chaplinsky standard, saying that these words were likely to provoke an average person to retaliate and cause a breach of the peace. Cf. Hammond v. Adkisson, 536 F. 237 (1976).

We take appellant’s arguments to be addressed toward application of the theory expressed by the U.S. Court of Appeals for the Eighth Circuit in Hammond v. Adkisson, supra, that there must be a specific finding of fact that, under the circumstances existing, the words spoken by the accused were likely to incite violent retaliation from the person to whom the words were spoken. Although we do not completely agree with the position of the Eighth Circuit, (cf. Hammond v State, supra) we do not find any basis for reversal in this case, even applying that theory.

The pertinent circumstances she states are her pregnancy of three months duration, her moving away from the officer, the person addressed was a police officer, and he was not aroused to immediate, violent anger. The alleged deficiency in the factfinding process is the failure of the trial court to instruct the jury that it was to take the circumstances of the utterance into consideration. As we view the law, it is not necessary that the person addressed must have reacted violently. Be that as it may, appellant is in no position to complain. Hits question was not raised in the trial court in any manner. The court defined the offense of disorderly conduct in the pertinent language of the statute. No objection was made to that instruction. The usual instructions on the burden of proof and reasonable doubt were given, without objection. The trial judge instructed the jury as follows:

if you find the T-femdani guilty of Disorderly Conduct, you v/iO say: “We, the Jury, find the defendant guilty of Disorderly Conduct, and fix the defendant’s punishment at a specific period of time not exceeding 30 days imprisonment in the county jail and/or a fine of n<ri exceeding one hundred dollars.”
If you find the defendant not guilty of Disorderly Conduct or, if you have a reasonable doubt as to her guilt, you v/iii say: "We, the jury, find the defendant not guilty. ”
In either case your vote must be unanimous and signed by one of your members as foreman.

No objection was offered to this instruction. After all instructions were given, the trial judge specifically asked appellant’s counsel if there were any objections to the instructions as read and received a negative answer. If appellant sought a specific finding of fact on the particular question whether, under the existing circumstances the words uttered by appellant were likely to incite violent reaction by the person to whom they were addressed, she should have requested that the jury be instructed that such a finding was necessary to a finding of guilt, or that the court’s instruction defining the crime be modified or that a specific interrogatory on the question be submiti.reed to the iurv. Brooks v. State, 256 Ark. 1059, 511 S.W. 2d 654; Hilliard v. State, 259 Ark. 81, 531 S.W. 2d 463; Taylor v. State, 255 Ark. 65, 498 S.W. 2d 876; Griffin v. State, 248 Ark. 1223, 455 S.W. 2d 882; Gibson v. State, 252 Ark. 988, 482 S.W. 2d 98. Not having made any of these requests, the question is presented for the first time on appeal and cannot be considered by us. French v. State, 260 Ark. 473, 541 S.W. 2d 680 (1976).

We find no merit in appellant’s contention that the facts do not support her conviction of interference with a police officer. In advancing her arguments on this point, she views the evidence in the light most favorable to her and ignores the testimony of the officer. Officer Keathley testified that he was dressed in plain clothes, but before the arrest, he pulled his badge out of his pocket, held it up, identified himself as a police officer and told appellant that she was under arrest, returned the badge to his pocket and walked up to appellant and reached for her, whereupon she immediately commenced an assault upon him. He said that when he held his badge up, appellant turned around and looked at him. He also stated that, after he had called the police station and had given her permission to use the telephone, appellant again assaulted him. This was substantial evidence to support the verdict.

The judgment is affirmed.

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


author: Frank Holt, Justice.

text:
    FRANKLIN ELECTRIC CO., Inc. v. Richard HEATH, Director, Department of Finance and Administration
    76-333
    547 S.W. 2d 755
    Opinion delivered March 14, 1977
    (In Banc)
    [Rehearing denied April 11, 1977.]

      Smith, Williams, Friday, Eldredge & Clark, by: Jerry T. Light, Lewis H. Mathis, and James D. Holland, for appellant.

      James R. Cooper, Harlin R. Hodnett, James R. Eads, Jr. and Jack East HI, by: Robert G. Brockmann, for appellee.
   Frank Holt, Justice.

This appeal concerns the franchise tax liability of a foreign corporation doing business in Arkansas. The pertinent facts are stipulated. Appellant is an Indiana corporation authorized since 1969 to do business in Arkansas. In 1973 appellant validly amended its articles of incorporation, under the law of Indiana, reclassifying its authorized stock from no-par to fifty cents par value stock. This amendment was duly reported by appellant to appellee in its sworn franchise tax report which is required by Ark. Stat. Ann. § 84-1835 and §84-1836 (Repl. 1960) for the purpose of computing the annual franchise tax. In its report appellant computed its tax according to the par value of its shares of stock as reflected by its amended articles of incorporation. Because appellant did not file an amended copy of its articles with the Arkansas Secretary of State, appellee refused to compute the tax liability on the basis of the amended articles (fifty cents par value stock) and instead assessed appellant’s stock at no-par value per share. By our statute § 84-1837, no-par stock is valued at $25 per share for franchise fax purposes. Consequently, appellant’s tax liability was increased from $405.82 (reported by appellant) to $20,291. Appellant paid the latter amount under protest and brought this action to recover the alleged overpayment. The chancellor held that the franchise tax imposed upon corporations in Arkansas is computed upon the stilted par value of the stock according to the official records of the Secretary of State of Arkansas. Appellant argues that the general assembly has enacted no statute that requires, explicitly or impliedly, a qualified foreign corporation to file in Arkansas copies of amendments to its articles of incorporation and, therefore, appellant is entitlted to recognition of its amended articles which are admittedly in compliance with the law of its domicile. We agree.

The Arkansas Business Corporation Act is codified as Ark. Stat. Ann. §§ 64-101, et seq. The distinctions between foreign and domestic corporations are evident from the definitions provided in § 64-102 which provides:

Definitions. - As used in this act [chapters 1-10 of this title], unless the context requires otherwise, the term:
A. ‘Corporation’ or ‘domestic corporation’ means a corporation for profit subject to the provisions of this act, except a foreign corporation. (Italics supplied.)

The distinction is further made evident by the fact that the legislature has provided a separate chapter governing foreign corporations, §§ 64-1201 - 64-1224. Further, the procedures and requirements outlined in §§ 64-117, 64-506, 64-507 and 64-510, relied on by appellee, concerning amendments to articles of incorporation, clearly apply only to domestic corporations. We find no provision in any of these chapters nor is any cited to us that requires the filing of the amended articles here with the Secretary of State for tax computation purposes.

Appellee relies upon Art. 12, § 11, Arkansas Constitution (1874). That provision subjects foreign corporations to the same regulations, limitations and liabilities as domestic corporations only as to “contracts made or business done in this State.” We do not construe this provision as being applicable to the computation of franchise taxes of either domestic or foreign corporations. The relevant statutes on the subject of the franchise tax sought to be imposed here are § 84-1835, which requires an annual sworn report be made by domestic and foreign corporations to the appellee, and § 84-1838, which provides:

The Commissioner, from the facts reported and from any other facts coming to his knowledge bearing upon the subject, shall compute the amount of the tax by each of said corporations at the applicable rate or rates hereinbefore provided. . . .

In summary no requirement exists in our state that amended articles of foreign corporations be filed with the Secretary of State before their validity is recognized for the computation of the franchise tax here. It is the prerogative of our legislature to enact such a requirement. We note other states have done so: i.e., Miss. Code, § 79-3-231 and W. Vir. Code, §31-1-57.

Reversed and remanded for proceedings not inconsistent with this ppinion.

Hickman, J., disqualified and not participating.


text:
    William Rupert BONDS v. Cecil Ruth Bonds LLOYD
    76-345
    547 S.W. 2d 431
    Opinion delivered March 14, 1977
    (Division II)

      Bullock & Peel, for appellant.

      Jon Shermer, for appellee.
   Darrell Hickman, Justice.

This child custody case originated in Texas. In 1970 the parties were divorced in Texas and Cecil Ruth Bonds was granted custody of the parties’ minor child. In July, 1975, William Bonds went to Texas and brought the child to Arkansas without permission or a court order. William filed a petition for custody in Pope County Chancery Court and Cecil Ruth filed a petition for the return on the child by way of a petition for a writ of habeas corpus. The chancellor refused to hear evidence on custody and placed the child with the Arkansas Social Services Department. We reversed the decision and remanded it for trial. See Bonds v. Lloyd, 259 Ark. 557, 535 S.W. 2d 218 (1976).

This case was tried on remand and Cecil Ruth was awarded custody of the child. William appeals alleging two errors: the trial court erred in admitting into evidence a deposition of a Texas social worker, and the court should have granted William custody.

The evidence of the fitness of the two parties for custody of the minor child was about evenly divided. Both parents have shortcomings. William has not supported the child financially and Cecil Ruth has failed at times to provide a clean, wholesome environment for the child. The chancellor, observing the parties and hearing the evidence, decided that the best interests of the child would be to leave him with his mother. She has had custody of the child since birth and visits with the father have been inegular. Custody cases are often bitterly disputed and difficult to decide. We cannot say the court was in error in resolving the disputed evidence and leaving the child with the mother. Both parties have had their personal problems, before and since the divorce. In such cases we will not substitute our judgment for that of the trial court, unless it is arbitrary or against the preponderance of the evidence. Crawford v. Hopper, 186 Ark. 1098, 57 S.W. 2d 1048 (1933). We cannot say the judgment of the chancellor was arbitrary or against the preponderance of the evidence.

During the trial, a deposition of a Texas social worker was admitted into evidence over the objection of William. Cecil Ruth brought the deposition from Texas and gave it to her lawyer the date of the trial. It was not presented to the clerk sealed as required by Arkansas law. See Ark. Stat. Ann. § 28-352 (f), (Repl. 1962). We have held that a deposition which is unsealed and undelivered to the court clerk is prima facie inadmissible. See Stephenson v. Lewis, 152 Ark. 361, 238 S.W. 61 (1922). In this case, however, Cecil Ruth testified that the document was delivered sealed to her attorney, an officer of the court. She testified that the document had not been tampered with and there is no evidence in the record that would tend to show the document had been tampered with. We simply have the bare objection that the procedure required by the Arkansas law was not followed to the letter. We find that it is a matter of the trial court’s discretion to admit a deposition under such circumstances, and we do not find that the court abused its discretion in this case. See Lathrop v. Kellogg, 158 Cal. App. 2d 220, 322 P. 2d 572 (1958).

Affirmed.

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


author:
Darrell Hickman, Justice.
      Conley Byrd, Justice. Darrell Hickman, Justice,

text:
    James E. MOORE v. STATE of Arkansas
    CR 76-211
    551 S.W. 2d 185
    Opinion delivered March 14, 1977
    (Division II)
    [Supplemental Opinion on Rehearing May 31, 1977.]

      Bill E. Ross, Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: Terry R. Kirkpatrick, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

James E. Moore was convicted of rape in Mississippi County Circuit Court and sentenced to life imprisonment.

On appeal he alleges two errors: certain physical evidence, the product of an unlawful search and seizure by the police officers, was admitted into evidence; his statement was improperly admitted into evidence because the police obtained it after confronting him with the evidence and despite his indication he wanted counsel.

The testimony during the trial revealed that Moore late at night went to the victim’s boarding house. She knew Moore and tried to dissuade him from entering her house. Moore pulled a gun, forced his way in, robbed her, raped her and shot her at least twice. A boarder in her house discovered her early the next morning and called the police. The police arrived on the scene and called an ambulance. The victim was taken to the hospital’s emergency room when she told the police who had raped, robbed and shot her. The police immediately went to the home of Moore’s parents, arriving there at about 7:00 a.m. Two officers covered the back entrance and two officers entered the front of the house. Although the facts are somewhat disputed, at least one officer had a shotgun in his hand when they entered the house. The officers testified that Moore’s parents consented to their entry and a search of the premises; Moore’s parents disputed the officers’ testimony. The officers went into a bedroom and found Moore asleep. They immediately arrested him and he was taken to jail. The officers remaining on the scene proceeded to search the house. In a room adjacent to Moore’s bedroom, they found a .32 pistol hanging on the wall and a purse containing papers which belonged to the victim. In Moore’s bedroom they found a gun, some clothes and other articles under his bed.

Even though the officers testified that they had the oral consent of Moore’s parents to search the house, a list of the items seized was not given to Moore’s parents as required by Arkansas law. See Rules of Grim. Proc., Rule 11.4 (1975).

The next day an officer obtained a statement from Moore. He showed Moore the evidence that was seized at the time of the arrest. When Moore was advised of his rights, he indicated that he would like to have a lawyer. He started to call a lawyer but stated that he did not have the money to hire a lawyer. The interrogating officer did not explain Moore’s right to counsel and proceeded to question Moore. Moore made a statement implicating himself in the crime. The statement and all of the physical evidence taken from Moore’s house were admitted into evidence by the trial court.

The police were certainly justified in immediately entering the house to arrest Moore. The victim had stated she knew Moore and apparently there was no problem in identifying the suspect. The state argues that Moore’s parents consented to the search and that the search was necessary to prevent the destruction of evidence. These two arguments hardly merit discussion. Two police cars containg four officers surrounded the house of Moore’s parents early in the morning and two officers entered the front door with at least one of them having a drawn weapon. Under such circumstances, the state must prove that the consent was, in fact, freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543 (1968). White v. State, 261 Ark. 24, 545 S.W. 2d 641 (1977). The proof falls far shot in this instance. There is no evidence in the record to support the argument that the search was necessary to prevent destruction of the evidence. There is no reason one of the officers could not have obtained a search warrant while the other officers remained at the scene.

Even though the officers did not have a search warrant or legal consent to search the premises, the law permits a search of the area within the immediate control of the person arrested. See Rules of Grim. Proc., Rule 12.2. The purpose of this rule is to permit officers to seize weapons or evidence within the reach of the suspect which might be destroyed. Several items of evidence were found in Moore’s bedroom. However, a search of the rest of the house turned up a .32 pistol and a lady’s small purse, which contained documents. We hold that only those items in Moore’s bedroom were lawfully seized and all other evidence was improperly seized.

The U.S. Supreme Court discussed a similar situation where a search was made without a search warrant or consent. Chimel v. California, 395 U.S. 752 (1969). In the Chimel case the court stated:

There is ample justification, therefore, for a search of the arrestee’s person and the area “within his immediate control” — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The “adherence to judicial processes” mandated by the Fourth Amendment requires no less.

Supplemental Opinion on Rehearing delivered May 31, 1977

The statement taken from Moore was obtained after he had been shown the evidence which was seized at his parents’ home. Since part of the evidence was illegally seized, the statement is not admissible. See Walton & Fuller v. State, 245 Ark. 84, 431 S.W. 2d. 462 (1968).

In addition, when Moore was questioned he indicated he wanted a lawyer. We have made it quite clear that if an individual indicates in any manner prior to his statement, or during his interrogation, that he wishes to exercise his rights, the interrogation must cease. Webb v. State, 258 Ark. 95, 522 S.W. 2d 406 (1975). Davis v. State, 243 Ark. 157, 419 S.W. 2d 125 (1967).

The judgment is reversed and this cause remanded for a new trial consistent with this opinion.

Reversed and Remanded.

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

Conley Byrd, Justice.

On rehearing appellant points out that no search of the premises was made until after he was arrested and removed from the premises. He then contends that the evidence seized by the officers in his bedroom should also be suppressed. We must agree with appellant on both contentions.

The record shows through both Captain Denver Johnson and Detective Claybourn Hicks that the appellant was not present when the search of his home began. Captain Johnson testified that they did not start the search until after appellant was taken to jail and Detective Hicks testified that appellant was on his way to the police department at the time of the search.

In Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), the State sought to justify a search of the house as being incident to an arrest. In reversing the conviction and holding the search unlawful, the Court said:

“. . . Clearly, the general requirement that a search warrant be obtained is not lightly to be dispensed with, and ‘the burden is on those seeking [an] exemption [from the requirement] to show the need for it. . . ”
“. . . When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person, and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The ‘adherence of judicial processes’ mandated by the Fourth Amendment requires no less.”

Again in Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), the Court reiterated:

“Thus the most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.’ ‘ [T]he burden is on those seeking the exemption to show the need for it. ’ !n times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or ‘extravagant’ to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won — by legal and constitutional means in England, and by revolution on this continent — a right or personal security against arbitrary intrusions by official power. If times have changed, reducing every man’s scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important.”

On the uncontroverted evidence, it cannot be said that the exigencies of the situation were such as to bring the search of the bedroom, after appellant was on his way to jail, within an exemption that justified the search as being incident to a lawful arrest. It follows that the evidence recovered in the bedroom after appellant was on his way to jail in the squad car must also be suppressed.

The trial court’s theory that the possibility of destruction of the evidence by appellant’s family was a sufficient exigency to support the officers’ warrantless search was discounted in Chimel v. California, supra — see dissent of White, J. There is no contention or suggestion that appellant’s mother or father were confederates in the crime and to assume that they would willingly become accessories after the fact to such a crime is not a fact upon which one is entitled to rely as justification for the invasion of such a precious right.

Rehearing granted on behalf of appellant.

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

Darrell Hickman, Justice,

dissenting.

We decided Fu st in this case that the items found in the bedroom where Mocre was arrested were not unreasonably obtained by the police. We decided that the victim’s purse and another gun, which were in a separate room, could not be admitted into evidence because these items were not under the control of Moore. We based this decision on the language contained in the case of Chimel v. California, 395 U.S. 752 (1969). In the Chimel case, the arresting officer had a warrant for Chimel’s arrest but no search warrant. When the police entered the house, over Chimel’s objections, they conducted a random search of the entire house, including the garage, attic, workshop, and even ordered ChimePs wife to open drawers in the furniture. The Supreme Court of the United States reviewed the law of search and seizure incidental, to an arrest in the Chimel case. While pointing out that the law had been inconsistently applied by the courts, the court stated that a search incident to arrest in a dwelling should be limited to the person of the accused and the “area from within which he might have obtained either a weapon or something that could have been used as evidence against him.” Another reason for this rule is that the evidence may be destroyed or disposed of. The items which were found under the bed of Moore were clearly within his control and one of the items was a gun which Moore could have used against the officers. Therefore, the seizure clearly falls within the rule announced in Chimel. However, the majority now says that because Moore was not on the premises at the moment the search was made it cannot be sustained constitutionally.

It is not disputed that the police, after talking to the victim, who had been raped, shot three times and robbed, were justified in the early morning hours, apparently between six and seven a.m., in going immediately to the residence of Moore’s parents, where he was known to reside, and arresting him without a warrant. The victim had just told the police, at the hospital, that she knew Moore personally and identified him as the assailant. We concluded that the police were justified, had probable cause, to enter the dwelling without an arrest warrant to arrest Moore. At the same time we are now saying that evidence of this crime for which he was arrested without a warrant cannot be used as evidence. This reasoning is typical of the decisions we, that is the courts, have made in the area of the law of search and seizure. There are literally thousands of cases in federal and state courts regarding the law of search and seizure and it has become a legal tangle that not only the lawyers and the judges have to constantly wrestle with but also must be puzzling to laymen and officials who must abide by these decisions or perform their duty consistent with these decisions. At one time the courts were too lenient on search and seizure, and now, in my opinion, they are too technical and strict in apply ing the law. The law of search and seizure and the sometimes unreasonable application of the law of search and seizure have created a legal maze that actually prevents the orderly administration of justice rather than aids it.

There must be a middle ground and it is the duty and obligation of the courts to find it. The constitutional rights of citizens must be protected but at the same time reasonable rules, or a reasonable application of rules, must be found so that the officials charged with enforcing the law have tools to fairly investigate a case, collect evidence, and see that criminals account for their misconduct. It is just as wrong for a person who commits a crime to go free because of a technical mistake by a police officer as it is for a police officer to violate the constitutional rights of an individual. Both parties should be held individually responsible for their individual misconduct. In my opinion we have been too easy on officials who violate the rights of individuals and too quick to find a technical violation of the rules of law.

I could accept the law that a person cannot be arrested in his home without an arrest warrant, and that his home at the same time could not be searched without a search warrant; or I could accept the law that a person can be arrested without an arrest warrant on probable cause, and at the same time his premises reasonably searched for any evidence connected with the alleged crime.

These are propositions that are both reasonable and can be scrutinized by the courts to guarantee the reasonable use of police power. But to say that a person can be taken from his home in the early morning hours without an arrest warrant and at the same time that the police cannot lawfully use evidence taken from under his bed, obviously connected with the crime, cannot be defended logically. Which is the greater threat, or potential threat, to individual rights?

The reason that evidence is normally not used in a trial against a defendant, which has been obtained in violation of the law of search and seizure, is that it is tainted by an illegal act by the police, suspect, because it may have been tampered with, or it may not or cannot be related to the crime involved. There is no evidence in this record that this evidence was suspect in any way, unreliable to any extent or related to any other offense except the crime charged. Moore could receive a fair trial and is in no position, based on the record before us, to argue that he is prejudiced in any way by this evidence being admitted into evidence. The only objection is technical — that he was on his way to jail. In my opinion the majority is unreasonable in the application of the law to the facts.

This court has adopted rules of criminal procedure which are a codification of the current decisions on the law of search and seizure. Their meaning and application will be the subject of much litigaton in the years to come, and I might add, the subject of much dispute and disagreement among lawyers and judges. However, we should in every instance in the application of these rules ask ourselves, was the action of the police unreasonable? Is there evidence of a deliberate attempt by the police officers to evade the law to obtain evidence? Was a mistake by the police a technical mistake or a substantial mistake? Was their act in good faith? Most of all, is the evidence relevant, reliable and is the accused prejudiced in any way by the admissibility of the evidence? In our rules of criminal procedure, we have set forth certain criteria for examining evidence which may have been seized contrary to the law. See Rules of Grim. Proc., Rule 16.2 (1976). We say in these rules that before evidence is suppressed because of a violation of constitutional rights, a determination must be made as to: the importance of the particular interest violated; the extent of deviation from lawful conduct; the extent to which the violation was willful; the extent to which privacy was invaded; the extent to which exclusion will tend to prevent violations of these rules; whether, but for the violation, the things seized would have been discovered; and, finally, the prejudice to the defendant and the effect upon his ability to defend himself. The majority in granting the rehearing in this case have ignored this rule and have not apparently looked to any of these criteria to see whether or not the violation they find should result in exclusion of the evidence.

There is ample authority that the presence of the accused at the moment of the search is not always necessary. In the case of U.S. v. Edwards, 415 U.S. 800 (1974), the court upheld a search of a defendant’s clothes ten hours after he was arrested. The court stated:

This was no more than taking from respondent the effects in his immediate possession that constituted evidence of crime. This was and is a normal incident of a custodial arrest, and reasonable delay in effectuating it does not change the fact that Edwards was no more imposed upon than he could have been at the time and place of the arrest or immediately upon arrival at the place of detention. The police did no more on June 1 than they were entitled to do incident to the usual custodial arrest and incarceration.

The court quoted from a United States District Court case:

While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least a reasonable time and to a reasonable extent — take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence. United Stales v. DeLeo, 422 F. 2d 487 (1970). [Emphasis added.]

In another case the United States Supreme Court held that a car which was searched without a search warrant a week after the arrest was a legal search. Cooper v. California, 386 U.S. 58 (1969).

These decisions indicate, just as the constitution states, that it is unreasonable searches and seizures that are unlawful.

The majority now says there are no exigent circumstances in this case which would warrant the police in searching this house without a warrant. I would point out that the arrest occurred immediately after Moore had been personally identified by the victim as her assailant; that the police officers immediately proceeded to Moore’s residence, which was the home of his parents, between the hours of six and seven a.m.; arrested Moore and sent him to jail; and immediately in the presence of his parents who owned the home found this evidence. The majority assumes that the parents of this young man, knowing that he was charged with a serious crime, would not have done everything they could to help their son. Such an assumption presumes that a parent will aid in the conviction of a child. To say that one of the police officers should have guarded the house or evidence while another one went to get a warrant is to propose a legal sham. Either the evidence could have, and should have been gathered at that time or it could not be gathered at that time. That brings us to the question which must be answered in every case, and that is, was the search itself reasonable under the circumstances? I can find nothing in the majority opinion granting the rehearing which would justify excluding the evidence found under the bed of Moore.

I would deny the rehearing.


text:
    Bertha WEBB v. The Honorable Todd HARRISON, Circuit Judge of the Second Judicial Circuit of the State of Arkansas
    CR 76-236
    547 S.W. 2d 748
    Opinion delivered March 14, 1977
    (In Banc)

      Scott L. Kirkpatrick III and E. C. Took Gathings, for petitioner.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for respondents.
   Darrell Hickman, Justice.

Bertha Webb filed a petition in this court asking for a writ of prohibition to stop Circuit Judge Todd Harrison from proceeding with the trial of her case in Poinsett County. She is charged with forgery and uttering of a check. We granted a temporary stay of the trial pending a decision by the full court.

Webb argues this court should grant a writ of prohibition because she was denied a speedy trial, an order dismissing her case was illegally set aside, and the circumstances of the case warrant the writ.

The deputy prosecuting attorney of Poinsett County charged Webb in July, 1975; however, after a personal investigation, he decided the charges should be dismissed. He made an oral motion before Judge Harrison in October, 1976 to nolle prosequi the case. It is disputed whether or not the judge took this motion under advisement and later ruled on it. The deputy states in an affidavit that Judge Harrison did not state to him he was taking the motion under advisement. Judge Harrison, in a signed order that was not filed until December the 30th, recited the motion was taken under advisement and overruled on the 29th of November. This order, along with several others, was filed on the 30th of December. The orders were dated the 28th of December but entered nunc pro tunc to dates in October. The orders were: an order granting a motion for a speedy trial; an order denying a motion to nolle prosequi the case, and an order setting the matter for trial December 29th.

After the October hearing, but before any written orders were filed by Judge Harrison, the prosecuting attorney made a motion to dismiss the case with prejudice before Judge Gerald Pearson, a judge in the same circuit. Judge Pearson signed an order dismissing the charges on the 5th of November. However, he set this order aside on the 7th of December as entered in error. There is no evidence that any of the parties received notice of Judge Pearson’s order setting aside the order of dismissal.

We do not find in this record sufficient evidence to justify prohibiting trial because there was a denial of a speedy trial. Although the case was set several times for trial, and passed on the motions of the state, there is no evidence the petitioner’s motion for a speedy trial was presented to the court until October, 1976. Also, three full terms of court did not lapse from the time Webb was arrested until the trial date in December, 1976. See Curan v. State, 260 Ark. 461, 541 S.W. 2d 923 (1976). These bare facts are insufficient to warrant a writ of prohibition. This does not preclude raising the same issues before or during trial.

Webb argues that the original order of Judge Pearson dismissing this case binds the state and therefore the court should be prohibited from proceeding with the trial. However, Judge Pearson set aside his order within the same term of court. The order setting aside the dismissal states that the original order of dismissal was entered in error. A trial court may set aside its own order in the same term of court without notice to the parties if the original order was entered in error.

The orders filed by Judge Harrison recite facts which are in conflict with the affidavit of the deputy prosecuting attorney, and it is not clear from the record that a writ of prohibition should be granted. We have held that a writ of prohibition is a discretionary matter and is only proper when the trial court has no jurisdiction over the person of the petitioner, is clearly warranted, and there are no disputed facts. Pacific Mutual Life Ins. Co. v. Toler, 187 Ark. 1073, 63 S.W. 2d 839 (1933). Sparkman Hardwood Timber Co. v. Bush, 189 Ark. 391, 72 S.W. 2d 527 (1934). Since the trial court still has jurisdiction and there are disputed facts, we cannot grant a writ of prohibition as a substitute for an appeal.

A prosecuting attorney and a circuit judge both have great discretion in performing their duties. The prosecutor has the discretion to file charges and the discretion to ask the court to dismiss charges. The trial court has the discretion to grant or deny a motion to dismiss charges. Based on the record before us, we cannot say there is evidence of abuse of authority by either official. The orders filed in this case do not preclude further motions before trial. We cannot presume that the public officials will not do their duty, therefore, the petition will be denied.

Conley Byrd, Justice, dissenting. I disagree with the majority first because I think Bertha Webb has been denied a speedy trial within the meaning of Arkansas Constitution Art. 2 § 10 and the Sixth Amendment to the United States Costitution, and second because we should emphasize and use our “superintending control over all inferior Courts” so as to correct a manifest injustice.

The facts are not in dispute. The record shows that Bertha Webb operates the Webb Printing Company in Memphis, Tennessee. Some two months before the forged check was passed, Bertha Webb’s purse containing her billfold and driver’s license was stolen from a Memphis restaurant. On July 2, 1975, a woman passed a forged check of Mrs. Gene Thompson at the Marked Tree Bank in the amount of S4,85Q.Q0. That woman volunteered the driver’s license of Bertha Webb to the bank teller for identification. On July 29, 1975, Michael Everett, Deputy Prosecuting Attorney, acting on behalf of David Burnett, Prosecuting Attorney for the Second Judicial District, filed a felony information in the Poinsett Circuit Court charging forgery and uttering against Bertha Webb. Bertha Webb’s defense from the beginning was an alibi. The case of State of Arkansas v. Bertha Webb, #CR75-63, was set for trial at the October 1975 term of Poinsett County Circuit Court, again on March 8, 1976 and once again October 14, 1976. Even though Bertha Webb was ready for trial at each setting, the case was passed each time on motion of the State. On July 10, 1976 Bertha Webb filed a motion demanding a speedy trial. In the meantime, the State through its duly constituted authorities had interviewed all of Bertha Webb’s alibi evidence and had concluded that Bertha Webb was innocent of the charges filed against her. After Bertha Webb filed a motion to dismiss for lack of a speedy trial on October 28, 1976, the deputy prosecuting attorney with the consent of the prosecuting attorney recommended to Judge Gerald Pearson, who held the first week of the October 1976 term of criminal court in Poinsett County, that the motion to dismiss be granted. Pursuant to that motion and recommendation, Judge Gerald Pearson entered an order on November 10, 1976 dismissing with prejudice the charges against Bertha Webb. Thereafter and without notice to Bertha Webb, Judge Gerald Pearson entered an order dated December 8, 1976 which set aside the November 10, 1976 order. The respondent Judge Todd Harrison, who had been holding the clerk files in the case of State of Arkansas v. Bertha Webb, § CR75-63, caused counsel for Bertha Webb on December 13, 1976, to be notified that the charges against her had been set for trial on December 29, 1976, the fourth day after Christmas and the third day before New Years.

Bertha Webb’s assertion that it will be necessary to have 17 witnesses from the State of Tennessee to present her defense is not challenged by the respondent.

For informational purposes, the affidavits of Michael Everett and David Burnett are attached to this opinion as appendix “A” and appendix “B” respectively.

In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Court discussed what constituted a denial of a speedy trial and there stated:

“A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.
The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.
Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.”
* * *
“A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.”

The securing of out-of-state witnesses pursuant to Ark. Stat. Ann. § 43-2005 and § 43-2006 (Repl. 1964), requires appearances in the courts of both the State issuing the request and the State in which the witness is present. Furthermore, there is a 1,000-mile limitation. To secure the attendance of the necessary witnesses from December 13th to December 29th would be a Herculean feat in itself since the statutes and the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases both require that proper notice be given to a witness before a hearing can be held to secure his attendance.

Even if it could be assumed that all of Bertha Webb’s witnesses were willing to voluntarily appear in her behalf, still the actions of the courts of this State have immeasurably prejudiced the rights of Bertha Webb. After the entry of the November 10, 1976 dismissal with prejudice, Bertha Webb’s witnesses had no reason to keep her informed of their whereabouts. Realistically speaking, it would be near impossible to bring together 17 people on short notice during the rushed period between Christmas and New Years for many people have made vacation arrangements for travel and made plans with family far in advance of the holidays. However, without having properly subpoenaed her witnesses, the trial court could have forced Bertha Webb to continue the trial on the theory that she had been dilatory. Under such circumstances, the cases before this Court all hold that the trial court does not abuse its discretion. However, if no prejudice has been shown for delay, one should consider the fact that neither Bertha Webb, her counsel nor the deputy prosecuting attorney knew that Gerald Pearson had set aside the November 10th order of dismissal with prejudice until this matter came up for temporary hearing in this Court on December 22, 1976.

In my opinion, the facts demonstrating prejudicial delay in the prosecution of this case are further magnified by the fact that the duly elected Prosecuting Attorney of the Second Judicial District, after a thorough investigation of the witnesses, has concluded that Bertha Webb is innocent of the charges. To me it is a disgrace to any government to permit a trial judge to sit mutely behind the log of judicial discretion in refusing to dismiss a criminal prosecution of a felonious crime after the State has conceded that the defendant is innocent. Nor can I think of any greater prejudicial delay than the delay in the dismissal of the defendant in that situation.

Concededly, Ark. Stat. Ann. § 43-1230 (Repl. 1964), provides that “No attorney for the State shall enter a nolle prosequi on any indictment, or in any other way discontinue or abandon the same, without the leave of the court in which such indictment is pending being first entered on the minutes.” However, the power of the court in such cases being judicial, it is not absolute and it cannot refuse a nolle prosequi without any valid reason. See State ex rel Pilkinton, Prosecuting Attorney v. Bush, Judge, 211 Ark. 28, 198 S.W. 2d 1004 (1947), where we had before us Ark. Stat. Ann. § 24-119, which authorizes the prosecuting attorney to appoint deputies “provided, that such appointment shall not take effect until approved, in writing, by the judge of the circuit court of such circuit. . . .” There James Pilkinton, the duly elected prosecuting attorney, had designated Henry Woods to be his deputy and the respondent Dexter Bush, the Circuit Judge, filed a response asserting that he had the right without any reason to disapprove the appointment of Henry Woods. While we recognized that the approval or disapproval of the appointment of a deputy prosecuting attorney was a matter within the discretion of the trial judge, we there said:

“The power of the circuit judge being judicial, it is not absolute; and he does not have the right to refuse, without any valid reason, to approve an appointment of this kind.”

While the writ of mandamus was denied in that instance, we did so without prejudice and pointed out that the trial judge’s discretion was subject to our review on certiorari under the superintending control given to this Court under Art. 7 §4 of the Constitution of Arkansas. I would here treat Bertha Webb’s petition as a request for a writ of certiorari and discharge her.

For the reasons stated I respectfully dissent.

APPENDIX A

Michael Everett, being first duly sworn, makes oath that:

1. At all times herein mentioned, I was duly appointed Deputy Prosecuting Attorney for Poinsett County, Arkansas, and have personal knowledge of the matters stated herein.

2. On July 29, 1975, I filed a felony information on behalf of David Burnett, Prosecuting Attorney for the Second Judicial District, in Poinsett Circuit Court against Bertha Webb charging forgery and uttering, probable cause being based on the fact that Bertha Webb’s name was on the back of the check that was forged.

3. The case of State of Arkansas vs. Bertha Webb was set for trial during the October 1975 term of Poinsett County Circuit Court, again on March 8,1976, and again on October 14, 1976, but the trial was continued on each setting on the Motion of the State of Arkansas. At no time was there a continuance on Motion of Bertha Webb, who has been ready for trial on each setting.

4. From the moment that Bertha Webb was arrested in Memphis, Tennessee, I have had numerous discussions about the case with her attorneys, who have vigorously maintained that Bertha Webb is innocent.

5. I have kept David Burnett, Prosecuting Attorney for the Second Judicial District, thoroughly informed of the status and developments in the case of State vs. Bertha Webb from the onset.

6. A representative of the State was requested by Bertha Webb’s attorney to meet in Memphis, Tennessee and examine all of her proof.

7. During the March 1976 term, I went to Memphis, Tennessee accompanied by Owen Miller, special investigator of the Prosecuting Attorney, and met with Bertha Webb and her attorneys and interviewed the following alibi witnesses who were present at the meeting: Fred Stewart, Linda Moitozo, Robert Kirkpatrick, Patricia Capos, Isaac Martin, Andy Thompson, Marvin Sites, and Brooks Webb. These alibi witnesses were sound and impressive in their specific reasons for recalling the date in question. Next I examined the time cards of Webb Printing Company, kept at 6-minute intervals, which I concluded to be admissible under the business records act and these time cards substantiated the testimony of the alibi witnesses that Bertha Webb was in Memphis the entire day on which the check was passed in Marked Tree, Arkansas. I further examined the written statements of two additional witnesses, which showed that Bertha Webb’s purse had been stolen from a Memphis restaurant on May 10, 1975 (two months before the forged check was passed). I examined Bertha Webb’s application for a new Tennessee driver’s license, which was made before the check was passed. Next I reviewed the affidavit of Herbert A. Taylor, M.D., Bertha Webb’s physician, which substantiated that the physical description of Bertha Webb was different from that given by the bank teller of the woman who passed the check.

Finally I interviewed Earl P. Davenport, handwriting expert, whose opinion was that the forged check was made by tracing a previous check of the victim, Mrs. Thompson, that had been payable to Creative Bath Kitchens, a Memphis concern dóing business with the victim. Bertha Webb had nothing to do with Creative Bath Kitchens. The attorneys for Bertha Webb had turned up the check from which the forgery was made, by making a transparency of the forged check and comparing it with numerous checks of Mrs. Thompson until they found the one that matched. Bertha Webb’s attorneys brought to my attention the name of a woman who could have had access to the check and who fit the description of the person who passed the check and whom they believed to be the likely suspect for the forgery.

8. After I returned from the Memphis meeting, I informed David Burnett of the substance of proof shown to me and I told him that in my opinion, Bertha Webb was innocent, the State could not convict her, and the case should be dismissed.

9. David Burnett agreed with my conclusions that the case should be dismissed against Bertha Webb.

10. At all times after the Memphis meeting and after conferring with David Burnett, I advised the attorneys for Bertha Webb that a motion to dismiss would be made.

11. On October 14, 1976, I made an oral motion before Judge Todd Harrison for nolle prosequi to which Judge Harrison replied that he didn’t want to do it then, as he wanted to talk to Fred Odum of the Arkansas State Police about it, but at no time did Judge Harrison state to me that he was taking the motion under advisement or that the case was to be set for trial.

12. The trial was continued again on October 14, 1976, on the Motion of the State.

13. Previously on July 10, 1976, Bertha Webb had filed a motion for a speedy trial and on October 28, 1976, filed a motion to dismiss for lack of speedy trial, and I believed the motion to be well taken as the actual business of the criminal division In Poinsett County had ended in October 1976. Therefore, in November, 1976, I sent Judge Gerald Pearson the Order dismissing cause with prrejudice along with precedents for the dismissal, which was granted and entered on November 10, 1976, with the consent of David Burnett.

14. I sent the dismissal order to Judge Gerald Pearson because Judge Pearson held the first week of criminal court during the October 1976 term, which I understand was at the request of Judge Harrison who had a backlog docket in Crittenden County, and also because Judge Pearson is much faster in answering my mail than is Judge Harrison.

15. It is, and has been, the custom in the Second Judicial Circuit for orders in criminal cases to be entered by any Judge, including those who at the time might be sitting on the civil bench, in order to expedite all business of the Circuit Court.

16. I chose the motion to dismiss with prejudice, rather than Nolle Prosequi because defense counsel had made the motion, and to my mind I thought the motion to be well taken, and I believed it was proper that the information be dismissed with prejudice, as a nolle prosequi would leave the case open to be refiled, and I didn’t believe Bertha Webb to be guilty.

/s/ Michael Everett

Deputy Prosecuting Attorney for Poinsett County, Arkansas

STATE OF ARKANSAS COUNTY OF POINSETT

Sworn to and subscribed before me this the 4th day of January, 1977.

/s/ Darlene Lagrove

Notary Public

My Commission Expires:

3-24-80

'APPENDIX B

David Burnett, being first duly sworn, makes oath that:

I

At all times mentioned, I was the duly elected Prosecuting Attorney for the Second Judicial District of Arkansas, and have personal knowledge of the matters stated herein.

II

On July 29, 1975, Michael Everett, Deputy Prosecuting Attorney, filed a felony information on my behalf aainst Bertha Webb in Poinsett Circuit Court charging forgery and uttering.

III

The case of State of Arkansas vs. Bertha Webb was set for trial during the October 1975 term of Poinsett Circuit Court, again on March 8, 1976, and again on Octoberl4, 1976, but the trial was continued on each setting on the Motion of the State of Arkansas; at no time was there a continuance on the Motion of Bertha Webb.

IV

t have been personally involved in the case of State vs. Bertha Webb, having prepared it for trial on two settings, and having had numerous consultations with Michael Everett and Bertha Webb’s lawyers about the case.

V

The attorneys for Bertha Webb requested that a representative of the State come to Memphis, Tennessee, and meet with them to review the documentary evidence of Bertha Webb, and to interview her witnesses and to interview Bertha Webb and a handwriting expert.

VI

Michael Everett, Deputy Prosecuting Attorney, attended the meeting requested by defense counsel on behalf of myself and the State and upon his return from said meeting gave me his findings which are set forth in the Affidavit of Michael Everett.

VII

Michael Everett advised me that, in his opinion, after examining the proof on behalf of the Defendant, Bertha Webb is innocent, and I agreed with his conclusion that the State of Arkansas could not prove Bertha Webb guilty of forgery and uttering, and that the case should be dismissed.

VIII

The attorneys for Bertha Webb informed me that their investigation had caused them to conclude that another person, not Bertha Webb, had committed the crime, and, in my opinion, a further investigation by the State of Arkansas should be made in regard to the guilt or innocence of said party identified by the attorneys for Bertha Webb.

IX

Because of my belief that the State of Arkansas could not convict Bertha Webb, and because I believe it my duty as Prosecuting Attorney, representing the State of Arkansas, not only to prosecute persons I believe are guilty, or may be guilty of a crime, but also not to prosecute persons who are not guilty and cannot be convicted, and in view of the opinion of Michael Everett that Bertha Webb was innocent, I agreed to a dismissal of the action, which was granted by Judge Gerald Pearson on November 10, 1976 upon application of Michael Everett.

It is, and has been, the custom in the Second Judicial Circuit for orders in criminal cases to be entered by any Judge, including those who at the time might be sitting on the civil bench, in order to expedite all business of the Circuit Court.

XI

Insofar as I, as Prosecuting Attorney for the Second Judicial District of Arkansas, represent the State of Arkansas, the State has no further desire to prosecute Bertha Webb.

/s/ David Burnett

Prosecuting Attorney for the Second Judicial District of Arkansas

STATE OF TENNESSEE COUNTY OF SHELBY

SWORN TO and subscribed before me this the 8th day of January, 1977.

/s/ John D. Richardson

Notary Public (Seal)

My Commission Expires:

June 11, 1980