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

text:
    Joe Henry JOHNSON v. STATE of Arkansas
    CR 88-88
    770 S.W.2d 128
    Supreme Court of Arkansas
    Opinion delivered May 15, 1989
    [Rehearing denied June 12, 1989.]

      Lohnes T. Tiner and Chet Dunlap, for appellant.

      Steve Clark, Att’y Gen., Lynley Arnett, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This is a second appeal of a rape conviction. Appellant was arrested in April 1985, and charged with the rape of his nine-year-old stepson. A jury trial was held and appellant was found guilty and sentenced to forty years imprisonment. The conviction was appealed and in Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987), the case was reversed.

In Johnson I, the victim had reported to several individuals, including his mother and a physician, that he had been sexually molested by appellant, but at trial he testified he had made up the accusations because he was mad at appellant for not taking him fishing. An examining physician, Dr. Kemp, testified the boy had told him the appellant had engaged in anal and oral intercourse with him. He further testified that he believed the boy was telling the truth. Others testified that the boy had made similar accusations as those told to the doctor and that the boy had recanted the accusations but then renewed them. We reversed because the trial court had permitted Dr. Kemp to state an opinion as to the truthfulness of the boy’s statements, which we said was not beyond the understanding of the jury. However, we upheld Dr. Kemp’s testimony of the victim’s accusations under A.R.E. Rule 803(25).

At the second trial, the state again introduced testimony by Dr. Kemp, but without his opinion as to the victim’s truthfulness. The state also presented the testimony of two officers who had questioned the appellant. Both officers testified that appellant had admitted to them that he had engaged in both oral and anal intercourse with the boy. The appellant testified, denying the charge, and the victim testified, denying the truth of his original accusations, and again explaining that they were prompted by his anger at the appellant.

The jury found appellant guilty and sentenced him to fifteen years in the Department of Correction. From that judgment, appellant brings this appeal, arguing four points for reversal.

Appellant first argues the trial court committed reversible error by not granting a directed verdict, contending there was no evidence in the record, apart from the confession, that any crime had been committed. Appellant argues that there must be corroboration of a confession to sustain a conviction, and in this case the only evidence in addition to his confession was Dr. Kemp’s testimony of what the boy had told him, the truth of which the boy now denied. Furthermore, appellant points out that the doctor testified that from his examination of the boy there was no physical evidence that anal intercourse had occurred. We cannot sustain the argument.

Unless made in open court, a defendant’s confession standing alone will not support a conviction except where “accompanied by other proof that the offense was committed.” Ark. Code Ann. § 16-89-111(d). The test of correctness under this statute is not whether there was sufficient evidence to sustain a conviction, but whether there was evidence that such an offense was committed, or, in other words, “proof of the corpus delicti.” Sawyer v. State, 284 Ark. 26, 678 S.W.2d 367 (1984).

The other proof that the offense was committed came from the testimony of Dr. Kemp, who testified that the boy told him he had been having sex with appellant. When the doctor asked him what he meant, the boy told him the man had put “his thing in my bottom,” pointing to his penis and his anal opening to clarify what he meant. The boy told him it had happened “lots of times.” The doctor further stated that he had made a complete physical exam and that the results were normal, and while he saw no signs of injury nor anything to indicate anal intercourse, he also stated that neither could he rule out anal intercourse on the basis of his examination.

Prior to the adoption of A.R.E. Rule 803(25), the doctor’s testimony as to the boy’s statements would have been hearsay, but this was changed by the rule, and such statements, if they meet the criteria set out by the rule, will not be excluded as hearsay. In Johnson I we considered an attack on the constitutionality of the rule based on due process and equal protection arguments. We rejected those contentions, not on their merits, but for lack of supporting authority cited by the appellant. Dixon v. State, 260

Ark. 857, 545 S.W.2d 606 (1977). In this appeal, neither Rule 803(25) nor the admissibility of the boy’s statements is challenged. The boy’s statements, as exceptions to the hearsay rule, can of course serve as substantive evidence. E. Clearly, McCormick on Evidence,% 251 at 744 (3ded. 1984). Appellant does not dispute this point but simply argues the evidence as a whole is insufficient as a matter of law.

The appellant wants us to disregard the boy’s statement to the doctor and others because he recanted them under oath. He argues the only “substantial” evidence the jury heard was the boy’s sworn statement the abuse did not occur. But the boy admitted he told the doctor and others that the abuse did occur and those statements were received as evidence and were substantial in nature. Hearsay evidence, when admitted, is substantial evidence that will support a verdict. Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980); Boone v. State, 264 Ark. 169, 568 S.W.2d 229 (1978).

Appellant maintains that in this case there should be corroboration by some physical evidence. We disagree. Appellant has pointed to no authority for this position and we can find none. The rule as long applied has never contained a requirement of that nature and has in fact been applied when it is clear there is no physical evidence to corroborate the victim’s testimony. As recently as Cope v. State, 292 Ark. 391, 730 S.W.2d 342 (1987), we upheld a rape conviction on the testimony of a six year old victim. There was no physical evidence and no testimony by any other witnesses. Similarly in Waterman v. State, 202 Ark. 394, 154 S.W.2d 813 (1941), a conviction for carnal abuse was sustained on the testimony alone of a girl less than fourteen years old. No other evidence was presented and this court held the evidence sufficient. See also, Bond v. State, 63 Ark. 504, 39 S.W. 554 (1897).

The question in this case, however, is not whether the boy’s statements alone are sufficient to convict, but whether they offer sufficient corroboration of the appellant’s confession. Given the foregoing authority of uncorroborated statements being sufficient evidence in themselves to convict, we have no doubt that the boy’s statements are sufficient to corroborate appellant’s confession under §16-89-111 (d) which requires a lesser standard of evidence. Sawyer v. State, supra.

When the defense presented its case, the boy testified that what he told Dr. Kemp was untrue and that he had fabricated the story because he was mad at appellant. Appellant argues that this testimony should change the result and cites us to Eaton v. State, 255 Ark. 45, 498 S.W.2d 648 (1973). That case, however, is easily distinguishable, as the only evidence presented by the state in Eaton was the confession of the defendant.

Aside from the Eaton case, the victim’s recantation offers no obstacle to our decision. The Eighth Circuit considered a similar factual situation and arrived at the same result. In United States v. Renville, 779 F.2d 430 (8th Cir. 1985), the appellant was accused of sexual abuse of his eleven year old stepdaughter. A doctor and a deputy sheriff were allowed to testify as to statements made by the girl, identifying the stepfather as her abuser. The victim also testified, recanting her earlier accusations and denying having told anyone except the deputy sheriff that appellant was the abuser. As to the child’s recantation the court said, “Although the declarant testified at trial that these earlier statements were lies, this simply provided the jury with a routine question of credibility.” Id. at 440. The court also pointed out that it was significant that the declarant admitted she made the out-of-court statement to the deputy, making this a very different situation from that where the declarant testifies that an earlier inconsistent statement was never made, raising concerns of manufactured evidence. Id. at 440.

So, in the case before us, any inconsistencies presented by the victim’s testimony were for the jury to resolve. Cope v. State, 293 Ark. 524, 739 S.W.2d 533 (1987); Ellis v. State, 279 Ark. 430, 652 S.W.2d 35 (1983); United States v. Renville, supra. In addition to other indicia of reliability as established by the trial court under A.R.E. Rule 803(25), concerns of manufactured evidence were minimized by the victim’s admission that previous statements, contrary to those made at trial, were in fact made. United States v. Renville, supra. We conclude that the trial court did not err in refusing to grant appellant’s motion for a directed verdict.

Appellant also contends that the state failed to prove the date of the offense as having occurred within the statute of limitations as required by § 5-1-111(d), which in this case was within six years of the filing of the information on May 6, 1985. The record refutes the contention. Appellant was arrested on April 27, 1985, and his confession was taken on that date by Officer Beck. Beck testified that he asked appellant if he had oral sex with the boy “on that day” and appellant responded that he had. There was no evidence presented by appellant to indicate the offense was committed prior to six years of filing the information, nor does appellant even argue that was the case. The officer’s unequivocal and undisputed testimony on this point eliminates any further argument.

As his second point for reversal, appellant argues that the trial court erred in not allowing him to voir dire the jurors on two points: 1) if there were no physical or documentary evidence, would the jury disregard the prosecutor’s references to same; and 2) what was the jury’s feeling regarding hearsay evidence versus direct evidence. Both matters included questions of law which were not proper ones for the jury. Beyond that, the extent and scope of voir dire examination is largely a matter of judicial discretion and boundaries of that discretion are rather wide. The restriction of voir dire examination will not be reversed on appeal unless that discretion is clearly abused. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). We could not say that there was any clear abuse of that discretion.

Appellant next contends the trial court erred by commenting on the assertion of the doctor-patient privilege in the presence of the jury. In an attempt to keep Dr. Kemp from testifying, the victim and his mother informed Dr. Kemp and the trial court that they were not waiving the doctor-patient privilege. At a pretrial conference the court found the boy’s communications to the doctor were not intended to be confidential and were therefore not privileged under A.R.E. Rule 503. See Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982). When the trial commenced, and the doctor began his testimony, there was an objection and then a bench discussion concerning a continuing objection to the privilege. When the discussion concluded the court stated: “Let the record indicate also that an objection has been made under the doctor-patient privilege and the Court has denied that motion and you are ordered and directed to testify, Doctor.” Appellant promptly objected on the basis of A.R.E. Rule 512, which limits comments on claims of privilege. Appellant moved for a mistrial which was denied. On appeal appellant argues the comment was error and the mistrial should have been granted.

A.R.E. Rule 503 recognizes a privilege between patient and doctor which may be claimed by the patient, his guardian or conservator or the personal representative of a deceased patient. A.R.E. Rule 512 applies to all privileges and restricts comment on the claim of privilege:

RULE 512. Comment upon or inference from claim of privilege-instruction.
(a) Comment of Inference Not Permitted. The claim of a privilege whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.
(b) Claiming Privilege Without Knowledge of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.
(c) Jury Instruction. Upon request, any party against whom the jury might draw an adverse inference from claim or privilege is entitled to an instruction that no inference may be drawn therefrom.

Appellant urges that a comment on the privilege is comparable to a comment on a defendant’s failure to testify and that the appellant had a right not to have an unfavorable inference drawn from any comment from the court. The state’s response is that áppellant has no standing to complain because the privilege of Rule 503 does not extend to him. While this is true, it does not appear that the “Comment” Rule, 512, is similarly limited. The person invoking the privilege may not be a party, but an inference could nevertheless be drawn that is unfavorable to a party. See 2 Louissel and Mueller, Federal Evidence, (1985) § 249. Furthermore, the language in Rule 512 suggests it would include one who was not involved with the privilege directly, but who could be prejudiced by the mention of it. Rule 512(c) states that “Upon request, any party against whom the jury might draw an adverse inference. . .” is entitled to relief from that inference. However, even if appellant can invoke the rule, it is of little help.

The prejudice the rule seeks to avoid would appear to have dissipated when the claim to the privilege has not been sustained, as was the case here, and the jury can actually hear and evaluate the testimony to which the privilege claim was directed. See generally, id. § 249. Any prejudice from a remark pertaining only to an unsuccessful attempt to claim the privilege is minimal at best.

Furthermore, the rule does not provide for an absolute prohibition against mention of a claim of privilege. While 512(a) states the standard that a claim of privilege is “not a proper subject of comment,” it recognizes in the next section that it will at times be mentioned: “. . . proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.” [Our emphasis.] The rule also recognizes the extent of damage by such mention in Rule 512(c), by authorizing a party to request a cautionary instruction when an adverse inference might be drawn.

Even if we were persuaded that error had occurred in this instance, the rule itself provides the appropriate sanction, a cautionary instruction to the jury. No such instruction was requested, and we think the trial court’s denial of a mistrial was not an abuse of discretion. Birchett v. State, 294 Ark. 176, 741 S.W.2d 267 (1987).

As his final point, appellant contends the trial court made an unwarranted rebuke of defense counsel in the presence of the jury. Prior to resting, the state offered a certified copy of the victim’s birth certificate into evidence and the court stated it could be received. There seems to have been a pause, after which the defense announced its objection to the introduction of the exhibit. The court then stated: “It took you a long time to make up your mind, overruled.” Counsel approached the bench and objected to the court’s addressing counsel “in that way” in the presence of the jury, and requested a mistrial. The court responded:

When something is proffered I pause and hesitate a respectful period of time to give you an opportunity to look at it and make any objection. And if there is none, then I assume that there is no objection and I rule its admissibility. A certified copy of a birth certificate is, under the laws and statutes, admissible in evidence. So I will overrule your objection and your motion for a mistrial will be denied.

In McDaniel v. State, 283 Ark. 352, 676 S.W.2d 732 (1984), we attempted to distinguish between the kinds of remarks that could result in reversal, that is, those that are suggestive of a deliberate intent to ridicule or demean counsel, and those which seemingly emanate merely from impatience or annoyance. This remark, we believe, belongs to the latter category. If counsel felt aggrieved by the remark, he could have asked for an admonition to the jury. There was no such request. The only motion was one for a mistrial, which under the guidelines set out in McDaniel, was clearly not warranted.

The judgment is affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. This is a sad story indeed. It all started when a little boy was going fishing with his mother’s boyfriend (the child’s present stepfather) but learned at the last minute that someone else was to take his place. The child became upset and unruly, and took his spite out on his little sister. His mother, on discovering what he had done, imposed punishment by way of a spanking. After the boy had been put in a corner, he was still unhappy about the fishing trip and at that time told his mother that her boyfriend, the appellant, had sexually molested him. The mother immediately took her child to a doctor, who decided to send him on to a hospital where he received a more complete examination and evaluation.

After the initial examination at the doctor’s office, both the mother and her boyfriend returned home at about the same time. The mother, for fear of arousing the ire of the appellant, told him that the boy had to be taken to the hospital because he had not been to the bathroom in three days. The appellant, who had returned home for some item that he had forgotten, dismissed his fishing partner and insisted on carrying the boy and his mother to the hospital.

Neither the mother nor the child told the appellant the real reason for their trip to the hospital. After the child indicated he did not want to go through with the examination, the appellant, who at that point did not know that he had been accused, insisted on the child being examined. On two occasions before reaching the examination room, the appellant had to employ stern language to get the boy to go through with the examination.

The boy, apparently with reluctance, told the hospital personnel that the appellant had molested him. Two officers then went to the waiting room and arrested the appellant. This was his firs knowledge, according to his testimony at trial, of what was happening. The father was taken away to jail, and the boy and his mother went home. Shortly thereafter the child recanted his story.

Before recanting the story, the child told a deputy sheriff, a social worker, and the examining doctor that he had been molested. The doctor found no evidence of physical or sexual abuse. At the trial the child denied that he had ever been molested by the appellant. The evidence at trial consisted solely of hearsay testimony. Generally speaking, their testimony was simply that the child had told them that the appellant had molested him. The boy freely admitted at trial that he had told the doctor and others that he had been molested, but insisted that he was mad about the fishing trip and that he made up the story.

Neither the initial examination nor the examination at the hospital revealed any evidence whatsoever of physical or sexual abuse of the child. The only evidence of abuse presented at trial was the recanted story the child had given on the date he was knocked out of the fishing trip.

The only other evidence of abuse presented at the trial was the testimony of the deputy sheriff that the appellant had admitted the act soon after he had been taken into custody. The appellant testified that he never admitted that he had sexually abused the child.

At the trial, the alleged victim testified that he was twelve years of age and was making A’s and B’s in the seventh grade; he stated that he was vice-president of the student council, a member of the science club, starting tackle on the football team, and a church member. He very clearly explained his understanding of the oath to tell the truth and swore that the appellant had never molested him.

The result in this case is yet another product of the hysteria of crime paranoia that has gripped this nation for some time. I cannot understand why this child’s original story should be believed when he made the accusations while he was upset with the appellant, and then recanted the story soon thereafter. Furthermore, this young man is a devoted member of his church and obviously comprehends the responsibilities of taking an oath. He testified under oath that he had lied on the earlier occasion and that the appellant had never molested him sexually. The only reason I can think of for the jury not believing him while he was under oath and believing him when he was not is the attitude among many citizens that a defendant in a criminal trial is guilty or he would never have been charged.

An additional error by the trial court concerns the voir dire of the jury by defense counsel. It is my opinion that the voir dire was unjustifiably restricted. Counsel proposed to ask the jury the following question: “If there was not any physical or documentary evidence, would the jury disregard the prosecutor’s reference to same?” Counsel also attempted to inquire of the jury panel members concerning their attitudes on hearsay evidence as opposed to direct evidence. The court refused to allow this inquiry also. The whole purpose of voir dire is to discover if there is any basis for a challenge for cause and to intelligently exercise peremptory challenges. Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983). Although the scope of voir direexamination is generally vested within the sound discretion of the trial court, and we will not reverse in the absence of abuse of this discretion, the trial court nevertheless should not unduly restrict the extent of voir dire. Fauna v. State, 265 Ark. 934, 582 S.W.2d 18 (1979); and Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). I believe these questions were within the legitimate scope of voir dire and should have been permitted.

It was prejudicial error to allow the doctor to testify in view of the fact that the boy and his mother had both given the doctor a written statement that they were not waiving the doctor-patient privilege. Their refusal to waive the privilege was reserved for objection throughout the trial. The doctor was called as a witness and testified about what the boy and his mother had told him. The objection by defense counsel was overruled, and the court stated in the presence of the jury: “Let the record indicate also that an objection has been made under the doctor-patient privilege and the court has denied that motion and you are ordered and directed to testify, doctor.” It is my belief that this was an improper comment by the judge on the privilege which had been asserted. Arkansas Rules of Evidence, Rule 512, states:

COMMENT UPON OR INFERENCE FROM CLAIM OF PRIVILEGE — INSTRUCTION.
(a) Comment or Inference Not Permitted.
The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.
(b) Claiming Privilege Without Knowledge Of Jury.
Injury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.

Even if Arkansas Rules of Evidence Rule 803(25)(A) were valid, it is not a license to prosecute any adult upon nothing more than the hearsay statement of a minor that an adult has abused him or her. Nevertheless, under the precedent of today’s decision, a person can be convicted upon the hearsay statement of a child in spite of the fact that the child testified under oath that the statement was never made.

I am of the opinion that what is called A.R.E. Rule 803(25)(A) is unconstitutional for the reasons stated in Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987); Hughes v. State, 292 Ark. 619, 732 S.W.2d 829 (1987); and Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987). Although one would not know it from a reading of the majority opinion, this court has never expressly ruled that A.R.E. Rule 803(25) is constitutional. Had we in some previous opinion made so significant a holding — one bearing such weight with respect to the vital question of the separation of powers — surely the majority opinion would have quoted the historic language. Because, however, no such explicit approval of the General Assembly’s enactment of A.R.E. Rule 803(25) may be found in Cogburn, Hughes, Johnson, or any other decision of this court, you will search the majority opinion in vain for the magic phrase.

Of course, the reason why this court has not held A.R.E. Rule 803(25) constitutional is because it realizes that this enactment, which was not included in the adoption of the Arkansas Rules of Evidence in Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986), violates the Sixth Amendment to the United States Constitution. Justice Dudley, concurring in Johnson I, stated that, after our ruling in Ricarte, “[t]he Legislature later enacted Rule 803(25), but this Court has not adopted such a rule, and probably will not do so.” 292 Ark. at 652, 732 S.W.2d at 828. Yet the majority speaks of the “adoption of A.R.E. Rule 803(25)” and refers to the court as having “upheld the rule” in Johnson I, thus appearing to concede to the General Assembly by default what Justice Dudley in his “caveat” termed the “separation of powers issue.”

We have never squarely addressed this important question. But in any event, the state cannot impose rules on this court. Why should we allow the trial courts to operate pursuant to a nonexistent rule, whether constitutional or not?

The errors in the trial court were sufficient to require a reversal.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Gary Frank BONDS v. STATE of Arkansas
    CR 89-73
    770 S.W.2d 136
    Supreme Court of Arkansas
    Opinion delivered May 15, 1989
    [Rehearing denied June 5, 1989.]

      Gibson & Deen, by: Thomas D. Deen, for appellant.

      Steve Clark, Att’y Gen., by: Kay J. Jackson Demailly, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Gary Frank Bonds, pleaded guilty to theft and burglary and was placed on five years probation. A petition was filed seeking revocation of his probation, alleging failure to report to the probation officer, failure to pay fines, costs, or fees, and failure to notify authorities of address and employment change. Bonds filed a “motion for discovery” seeking information such as the names of the witnesses and documentary evidence against him. The state did not respond, and at the beginning of the revocation hearing Bonds renewed his motion for discovery. The prosecutor argued there was no need for further notice to Bonds of the allegations with which he was faced. The judge denied Bonds’s motion as well as his motion for a preliminary hearing. We find no prejudicial error, as Bonds testified at the revocation hearing and admitted his failure to comply with the conditions of his probation.

We agree that due process of law entitled Bonds to disclosure of the evidence against him. See Black v. Romano, 471 U.S. 606 (1985). However, given Bonds’s testimony admitting the violations with which he was charged, we find he suffered no prejudice.

Lisa Ray, the probation officer, testified that Bonds committed all the violations alleged. Bonds testified he had a conversation with Ms. Ray in which she had advised him of his obligations. He testified he later changed addresses without telling her, did not report, and relied on his wife to make the payments on his fine and costs, knowing that these were his responsibilities and not those of his wife or mother.

We do not reverse where an alleged error is not prejudicial. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). Bonds has not demonstrated he could in any way have benefitted from the information of which he sought disclosure. We are convinced beyond a reasonable doubt that, given Bond’s testimony admitting the probation violations, there was no prejudice to his case. Chapman v. California, 386 U.S. 18 (1967).

Affirmed.


text:
    William Bruce TAYLOR v. STATE of Arkansas
    CR 89-20
    770 S.W.2d 135
    Supreme Court of Arkansas
    Opinion delivered May 15, 1989

      Appellant, pro se.

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

William B. Taylor has asked us to reverse the decision of the trial court revoking the probation and sentencing him to imprisonment for concurrent terms of ten years for attempted murder, ten years for terroristic threatening and six years for aggravated assault. He pleaded guilty to those offenses after we had reversed an earlier conviction, Taylor v. State, 284 Ark. 103, 679 S.W.2d 979 (1984), and he was fined $2,000 and placed on supervised probation for five years. In his pro se brief he argues his sentence to imprisonment upon revocation should be no longer than his probation period. He also argues double jeopardy. As Taylor has presented no abstract of the record, we must affirm.

Pro se litigants are held to the abstracting requirements of Arkansas Supreme Court and Court of Appeals Rule 9. Pennington v. Lockhart, 297 Ark. 475, 763 S.W.2d 78 (1989); Bryant v. Lockhart, 288 Ark. 302, 705 S.W.2d 9 (1986). The rule permits affirmance if the abstract is flagrantly deficient. As no abstract was presented, we affirm.

Affirmed.


author: Tom Glaze, Justice.

text:
    Letha DAVIS, Individually and as Executrix of the Estate of C.G. Davis, Deceased, et al. v. W.A. GRIFFIN, et al.
    89-38
    770 S.W.2d 137
    Supreme Court of Arkansas
    Opinion delivered May 15, 1989

      Woodward and Epley, for appellants Letha Davis and Charles Brandon.

      Kinard, Crane & Butler, P.A., for appellants Georgia Daniel Anderson and Robert W. Anderson, her husband; and Joe M. Daniel and Erma Daniel, his wife.

      Smith, Stroud, McClerkin, Dunn & Nutter, for appellees.
   Tom Glaze, Justice.

This appeal originated from an inter-pleader action by UPC Falco to determine the ownership of royalty interest in the oil the company was purchasing. The oil was produced from wells located on land originally owned by J.M. Daniel. Daniel died intestate and was survived by his widow Estherlee Wellborn and eight children, from three different marriages. Under our intestate laws, Daniel’s descendants received his estate subject to the widow’s dower and homestead rights. In October of 1935, Wellborn and Daniel’s descendants signed an instrument entitled “Agreement,” which provided that Wellborn agreed to receive a one-ninth interest in all royalties, rentals, purchase price and other returns derived from any oil and gas lease in lieu of her dower and homestead rights in any oil or gas lease, royalty or mineral deed. In 1959, Wellborn conveyed mineral interests in royalty deeds to C.G. Davis, who later conveyed one-half of his interest to John McDonald. Wellborn, Davis and McDonald are now deceased.

In the interpleader action, the chancellor was asked to interpret what interest was conveyed to Wellborn by the “Agreement.” The chancellor found that the instrument did not convey a fee simple interest in the mineral rights to Wellborn and therefore any interest she had terminated upon her death. The personal representatives of Davis and McDonald along with Daniel’s and Wellborn’s two children appeal from this finding. The appellees are the rest of Daniel’s descendants. We affirm.

In reviewing instruments, this court’s first duty is to give effect to every word, sentence and provision of a deed where possible to do so and give effect to the intention of the parties. Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987). Since an instrument conveying oil and gas interests is viewed as a conveyance of an interest in land, it is subject to the same formalities. See Helms v. Vaughn, 250 Ark. 828, 467 S.W.2d 399 (1971). Although formal words are not required, a deed must contain sufficient words to convey the interest. See Harper v. McGoogan, 107 Ark. 10, 154 S.W. 187 (1913); Malin v. Rolfe, 53 Ark. 107, 13 S.W. 595 (1890). In Griffith v. Ayer-Lord Tie Co., 109 Ark. 223, 159 S.W. 218 (1913), this court stated that in order to convey legal title, it was absolutely necessary that there be words expressing the fact of a sale or transfer of the title, such as the words “grant, bargain and sell.” See also Ark. Code Ann. § 18-12-102(b) (1987).

In our case, the part of the “Agreement” which should contain the granting language provides in pertinent part the following: ,

Now therefore for and in consideration of the sum of $1.00 cash in hand paid by parties of the first part (descendants of Daniel) to the second part (Wellborn), the said party of the second part does hereby agree that if and when a lease or royalty or mineral deed for oil, gas and other minerals shall have been executed by the parties hereto,. . . that in lieu of such sums as party of the second part would have received under such lease for oil and gas. . . that she shall receive thereunder a one-ninth interest.

As one can clearly see from the above language, no words of conveyance are present. Therefore, we find the instrument void of language necessary to convey a fee simple interest.

In addition to requiring sufficient words to convey a fee simple interest, our law requires courts to give effect to the parties’ intent, if possible, when construing an instrument. See Schnitt v. McKellar, 244 Ark. 377, 427 S.W.2d 202 (1968). We are to acquaint ourselves with the persons and circumstances and place ourselves in the same situations as the parties who drafted the instrument. Id. We believe that the parties’ intent in our case supports the finding that there was no conveyance of a fee simple interest.

From the language of the instrument itself, we are told that the parties wanted to settle what share Wellborn would receive from any proceeds from oil and gas leases, royalties, and mineral deeds, so that the parties could be in a position to lease the lands without delay. Importantly, the instrument also contained the following language: “It being understood that this instrument in no way affects the dower and homestead rights of [Wellborn] in said lands except as to leases, royalty or mineral deeds to be executed and the proceeds to be derived therefrom.” We believe this language strongly reflects that the parties’ intent was only to come to an agreement on how much Wellborn would receive from the proceeds of the mineral rights. Accordingly, we conclude that only Wellborn’s dower and homestead interest in proceeds from leases, royalties and deeds were affected by the instrument. She retained her dower and homestead rights to the undeveloped mineral estate and in the land itself. The fact that these dower and homestead rights were purposely not affected clearly shows that the parties could not have intended a conveyance of a fee simple estate.

In reviewing the parties’ circumstances and the instrument they drafted, we must affirm the chancellor’s construction of the instrument as only defining what Wellborn would receive in lieu of her dower and homestead and not as a conveyance of an absolute estate to one-ninth interest in the mineral rights.

For the reasons stated above, we affirm.

       Since the time of J.M. Daniel’s death, his widow has remarried. For clarity purposes, she will be referred to by her new married name, Wellborn, throughout the opinion.

       The appellants strongly rely on the fact that Wellborn made conveyances of mineral rights in 1959 to show that she thought that the instrument conveyed a fee simple interest. In light of the lack of words of conveyance and the language of the instrument itself, we do not find this fact persuasive.


author: Robert H. Dudley, Justice.

text:
    Ron LOFTIN, Sr. v. CREWS & ASSOCIATES, INC. and U.S. Associates, Inc., An Arkansas Corporation v. Crews & Associates, Inc.
    89-111
    771 S.W.2d 16
    Supreme Court of Arkansas
    Opinion delivered May 22, 1989
    . Gary E. Johnson, for appellant.

      Anderson & Kilpatrick, by: Overton S. Anderson, for appellee.
   Robert H. Dudley, Justice.

The trial court granted a summary judgment in these consolidated cases. We affirm under Rule 9(d) of the Rules of the Supreme Court and the Court of Appeals.

Appellant did not abstract the complaints, the answers, the motions for summary judgment, the affidavits, or the order consolidating the two lawsuits and granting summary judgment.

The abstract is flagrantly deficient and, therefore, we affirm.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Jimmy MILLER v. STATE of Arkansas
    CR 89-12
    770 S.W.2d 144
    Supreme Court of Arkansas
    Opinion delivered May 22, 1989

      James L. Sloan, for appellant.

      Steve Clark, Att’y Gen., by: J. Denhammcclendon, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was charged with keeping a gambling house. He filed a motion to suppress evidence obtained pursuant to a search warrant. The trial court denied the motion to suppress, and appellant entered a conditional guilty plea, reserving the right under A.R.Cr.P. Rule 24.3(b) to appellate review of the'trial court’s ruling. We now uphold that ruling, and affirm the appellant’s conviction.

The sole issue on appeal is whether the search warrant used to obtain the evidence against the appellant described the place to be searched with sufficient particularity. The Little Rock Police Department received information from a confidential informant that the appellant, James Franklin Miller, was a bookie who operated out of his pawn shop at 6323 Asher Avenue in Little Rock. The police then conducted a two-week surveillance of the appellant’s pawn shop, and discovered that he was also using the shop as his residence. With the help of the confidential informant, the police placed several bets over the phone with someone named Jimmy, presumably the appellant. They then contacted the phone company and determined that the number they were calling to place the bets was installed at a business named the Quick Cash Pawn Shop, located at 6323 Asher, which was listed in the name of Frank Miller, the appellant. They further determined that the phone calls were not being forwarded to another number.

Based upon all of this information, the police obtained a search warrant to search the appellant’s business. The warrant gave a thorough description of the premises, and indicated that access could be gained either through the front glass doors of the building, or through a door located at the rear of the premises. The police had not actually observed the appellant using the rear door, but because of its location at the rear of the building, they reasonably assumed that it would provide access to the pawn shop. When the police arrived at the appellant’s place of business to execute the search warrant, they parked in back to avoid drawing attention to themselves. However, just as they were parking, the appellant came out of the rear door and met them. The officers identified themselves and showed him the search warrant, explaining that they were there to search his business premises. The appellant made no effort to direct the police to the front of the building, or to inform them that the rear door did not lead to the pawn shop. He had left the rear door open, and the officers stepped inside. They were quite surprised to find themselves inside a 6’ x 6’ cubicle that provided no means of access to the appellant’s pawn shop. The cubicle contained several telephones and assorted gambling paraphernalia, which the police seized.

The appellant filed a motion to suppress the evidence seized from the cubicle, arguing that the warrant did not describe the cubicle with particularity, as is required by both the United States and Arkansas Constitutions and the Arkansas Rules of Criminal Procedure. After a lengthy hearing, the trial court refused to suppress the evidence, finding that the description in the search warrant was adequate. We agree.

The United States Supreme Court upheld a search warrant under similar circumstances in Maryland v. Garrison, 480 U.S. 79 (1987). In Garrison, Baltimore police officers obtained and executed a search warrant covering the person of one McWebb and the premises known as “2036 Park Avenue third floor apartment.” The police reasonably believed that there was only one apartment on the described premises, but as it turned out, the third floor of the building was divided into two apartments. The police searched the wrong apartment and seized evidence they found therein. The Supreme Court upheld the trial court’s denial of the appellant’s motion to suppress the evidence, finding that both the warrant and its execution were valid.

The Supreme Court first considered the validity of the search warrant itself. The Court found that the description in the warrant was broader than necessary only because of the mistaken belief of the police that there was only one apartment on the third floor of the building in question. The Court noted that the warrant would undoubtedly have been valid if it had reflected a completely accurate understanding of the building’s floor plan. The Court held that it must judge the constitutionality of the officers’ conduct in light of the information available to them at the time they acted and that evidence which emerges after a warrant is issued does not retroactively invalidate the warrant. The Court found the officers’ conduct completely reasonable under the circumstances and upheld the validity of the warrant.

The Court in Garrison next considered the execution of the warrant, and found that it, too, was valid. The Court held that the validity of the search depended upon whether the officers’ failure to realize the over breadth of the warrant was objectively understandable and reasonable. The Court found the officers’ mistake perfectly reasonable, noting that the objective facts available to them at the time of the execution suggested that there was no distinction between McWebb’s apartment and that of the entire third-floor premises. The Court noted in a footnote that although the officers met Me Webb outside the building and he accompanied them upstairs to the third floor, he said nothing to indicate there were two separate apartments on the floor, or that they were searching the wrong one.

In Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988), we applied Garrison to a similar set of facts, upholding a warrant and its execution on a residence which from all appearances was a single family dwelling, but in actuality it turned out to contain several “leased” bedrooms. In Moore the appellants also failed to bring the multi-unit nature of the dwelling to the officers’ attention, despite the opportunity to do so.

We find the reasoning of Garrison and Moore applicable to the instant case. The mistake of the police officers here was also perfectly reasonable and understandable. The officers had studied the outside of the appellant’s business premises for two weeks, and had every reason to believe that the back door to this building would provide access to the appellant’s pawn shop. The evidence at trial revealed that it was impossible to look in the front glass of the pawn shop and determine that the back door did not connect to it; thus, there was no way the officers could have discovered the existence of this separate cubicle without a copy of the building’s floor plan. We find that the officers did all that was reasonably necessary to determine the location of the bookie operation before obtaining the search warrant. Indeed, they had even gone so far as to subpoena phone records in an attempt to make sure that the bookie operation was being conducted on the premises. Based on the objective facts available to the officers at the time they obtained the warrant, the description of the place to be searched was adequate, and thus, the warrant was valid.

We also find that the execution of the warrant was valid. The officers had no reason to suspect that the rear door did not lead to the appellant’s pawn shop until they got inside the cubicle. Further, the appellant made no attempt to inform them of their mistake, although he had ample opportunity to do so.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The central issue in this case is whether the search warrant used to obtain the evidence described the place to be searched with sufficient particularity. The warrant authorized a search of the Quick Cash Pawn Shop, located at 6323 Asher Avenue in Little Rock. The business was operated by the appellant, who also lived in the same building. The place actually searched is a 6’ x 6’ concrete cubicle located in another part of the strip shopping center. Its only door opens into the alley to the west of the building. There was also a back entrance to the pawn shop, but it opened along the southern wall of the building.

This property and the adjacent property on Asher Avenue consists of an L-shaped building. The long top end of the L abuts on Asher Avenue; the lower part extends eastward from the south end of the L to a point which also is the east wall of the building occupied by the appellant. The pawn shop had a glass front window facing Asher Avenue which apparently enabled the police to observe the appellant’s business for a period of two weeks. What they observed is not known.

It was impossible for the officers, or anyone else situated across Asher Avenue, to observe the alleged bookmaking which was being conducted in the 6’ x 6’ concrete cubicle. All they could have seen was that the appellant was carrying on some sort of business in the pawn shop. Since there is no possible point of entry between the pawn shop in the short section of the building and the cubicle where the appellant was arrested, it is quite unlikely that the police observed any illegal activity whatsoever.

The results of the search warrant are not to be considered in determining the reasonableness for the issuance of the search warrant. As usual, there was a confidential informant. His information, coupled with verification by telephone by the police, was all that was furnished, apart from the telephone listing for the issuance of the search warrant.

Even if there had been a proper foundation for the warrant, it was issued for the wrong áddress. Therefore, the police had no right to search the 6’ x 6’ cubicle which faced the alley because it was neither a part of the pawn shop nor located at 6323 Asher Avenue.

I am not particularly troubled by the holding of the court that there was probable cause for the issuance of a search warrant. It bothers me, however, that the majority fails to discern the difference in the address authorized to be searched and the place actually searched. Absent the appellant’s invitation, the police had no right to search the cubicle where he allegedly operated a gambling house. Moreover, it is most difficult for me to visualize a gambling house operating in a 6’ x 6’ concrete cubicle which has no facilities for the accommodation of even one patron.

My greatest objection to this opinion is identical to that stated in the dissent in Thompson v. State, 298 Ark. 502, 769 S.W.2d 6 (1989). So far as I am concerned, you cannot make a gambling house out of a telephone booth. My real dissent is addressed to the law and the wrong interpretation this court has long given to it.


author: Steele Hays, Justice.

text:
    Willie HOUSTON v. STATE of Arkansas
    CR 88-194
    771 S.W.2d 16
    Supreme Court of Arkansas
    Opinion delivered May 22, 1989

      Ralph Cloar and Arthur L. Allen, for appellant.

      Steve Clark, Att’y Gen., by: Tim Humphries, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This appeal from a conviction for first degree murder challenges two evidentiary rulings and the sufficiency of the evidence to support the conviction.

On the evening of March 2, 1988, Eddie Bell answered a knock at his front door. Shots were exchanged between Bell and the person at the door and Bell died from multiple gunshot wounds received in the exchange. A few minutes later the appellant, Willie Houston, was found injured on the parking lot adjacent to the emergency room at the University of Arkansas Medical Center. The appellant told medical personnel he had been shot and they notified the police.

Having learned of the homicide of Eddie Bell, the police asked the attending physician to save any bullet fragments he might retrieve in surgery. When surgery was performed, two bullets and some fragments were removed from the appellant, turned over to the police, and taken to the Arkansas State Crime Lab. A comparison test was performed and one of the bullets matched a .38 caliber revolver found next to Bell.

The police obtained a warrant for appellant’s arrest and he was tried and convicted of first degree murder. As an habitual offender he was sentenced to a term of 99 years. It is from that conviction that appellant brings this appeal.

Appellant first argues that the trial court erred in denying a motion to suppress the bullets retrieved by surgery. The appellant contends on appeal that the surgery was performed in order to recover the bullets and the appellant was entitled to at least a hearing prior to any surgery. Appellant cites us to Bowden v. State, 256 Ark. 820, 510 S.W.2d 879 (1974), where the appellant had been brought to a hospital with a gunshot wound following a robbery and a murder. The police suspected the appellant and sought a search warrant to perform surgery to remove a bullet which appeared in an x-ray to match the gun fired at the robbers. We held that the removal of the bullet in that case would violate the fourth amendment.

Our case is immediately distinguishable. In Bowden, the operation was requested by the police, not the appellant, and was being sought over the appellant’s objection. The more appropriate case for comparison is Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975), where we held that an operation which may be invasive, which is not done at the direction of, or by prearrangement with any law enforcement officer, will not constitute any unreasonable search and seizure. This comports with the general rule that the exclusionary rule and the fourth amendment were not intended as a restraint upon the acts of private individuals but upon the activities of the government and its officials. 1 LaFave, Criminal Procedure § 3.1 (h) (1984). Such searches will not implicate the fourth amendment unless the search by the private party has been done at the request or order of the government or in some way has been a joint endeavor with the government. Id.

Here, the evidence showed only that the removal of the bullets was done at the instigation of the appellant and the doctor with no direction or prearrangement for the surgery by the police. The appellant appeared voluntarily at the hospital, in obvious need of medical attention. Appellant was evaluated by the doctor and a decision to take appellant to surgery was made after that evaluation. The doctor talked to the police informally the night of the surgery and he testified they told him if he were to remove any bullets or fragments, to make the appropriate arrangements so the police could pick them up. He also testified that the operation was done for appellant’s benefit and that appellant had given his consent after his injuries and the risks of surgery had been explained.

Two policemen had been called to the hospital that night, Officers Grogan and Ball. Grogan testified that he didn’t know if appellant was even a suspect and he had gone to the hospital because it was standard policy to make a report of shooting victims. He had talked to the medical personnel only about the extent of appellant’s injuries. Officer Ball had also talked to the medical personnel and stated he told them that if they needed to perform surgery and get the bullet out that the police needed the bullet. He stated he didn’t ask them to perform surgery and at that time didn’t know they were going to operate. Thus there is no indication the surgery was performed to accommodate the police. The trial court was correct in denying appellant’s motion for suppression.

Appellant’s second point is that the trial court erred in ruling that a felony conviction more than ten years old could be used to impeach appellant’s testimony. Under A.R.E. Rule 609(b), a conviction is not admissible “if a period of more than ten years has elapsed since the date of conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.” The record is not entirely clear, but it appears that of three convictions ruled admissible by the court, one may have been beyond the ten year limit.

When the matter was discussed in conference, appellant’s request to the trial court was not clear as to the specific dates involved. The trial court then examined the conviction record and made a determination that all three convictions were admissible. Appellant’s counsel then stated he had no objection to the admissibility of all three. Appellant cannot agree to some action taken by the trial court and then seek review of that point on appeal. Smith v. State, 278 Ark. 462, 648 S.W.2d 792 (1983).

As his final point, appellant argues that the evidence was insufficient to support a conviction of first degree murder as it failed to support a showing of premeditation and deliberation or that appellant and not the victim was the aggressor.

We note initially that the objection below did not properly preserve the argument now made on appeal. A.R.Cr.P. 36.21(b) provides:

(b) Failure to Question the Sufficiency of the Evidence. When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. [Amended by Per Curiam January 25, 1988, effective March 1, 1988.] [Emphasis supplied.]

This rule became effective March 1, 1988, and the trial in this case was in August 1988 so the rule was in effect at the time of the trial. Here, appellant made a motion for a directed verdict at the close of the state’s case but not at the close of the case. A renewal of the motion would have been to no avail in this case, however, as the evidence was more than sufficient to show premeditation and that the victim was not the aggressor.

Yolanda Washington, who was with the victim at the time of the shooting, testified that Bell had gone to the door in response to a knock. He had first put a pistol in his pocket which Ms. Washington said was always his custom when answering the door. He took the added precaution on this occasion of putting a second gun in the waistband of his pants. When Bell started to open the outside door an individual on the porch reached and opened the door and nudged Bell back with his forearm. The individual told Bell to “Get back there,” and drew a pistol from the front of his pants. When Ms. Washington saw the individual draw the gun she slammed the inside door and then heard several shots.

The nature of the wounds to Bell and to appellant corroborated Ms. Washington’s version of the incident. The doctor who conducted the autopsy testified that Bell had been shot three times in the head. Two were gunshot wounds to the forehead, one of them at a range of one to three inches. The third wound was from a shotgun blast which was from a distance of less than five feet to ten feet, depending on whether the shotgun was sawed off. Appellant, on the other hand, had two bullet wounds, one to the leg and the other to his arm.

There was adequate evidence from which the jury could have found that appellant had acted as the aggressor and with premeditation and deliberation.

AFFIRMED.


text:
    M.S. MAHURIN v. OAKLAWN JOCKEY CLUB
    89-79
    771 S.W.2d 19
    Supreme Court of Arkansas
    Opinion delivered May 22, 1989

      J. Sky Tapp, for appellant.

      Friday, Eldredge & Clark, by: James M. Simpson and Hank E. Jackson, for appellee.
   David Newbern, Justice.

This appeal is from a summary judgment which held that the appellant, M.S. Mahurin, was barred by a statutory deadline from collecting money he had won on a pari-mutuel bet placed with the appellee, Oaklawn Jockey Club, the holder of a regulated horse racing franchise. Mahurin argues he was not given notice by, Oaklawn of Ark. Code Ann. § 23-110-406 (1987) which provides that a ticket not redeemed on or before the 180th day after the last day of a racing meet is void, and thus the statute does not apply. He also contends the statute deprives him of his property without due process of law and that it violates' the Arkansas Constitution’s prohibitions against laws which impair the obligation of contract and against special legislation. We agree with Oaklawn’s arguments that Mahurin was charged with notice of the statute. We also hold that a statute which may affect contractual obligations does not violate the ban against laws impairing contracts if the statute precedes the contract. Nor do we find this statute to be a violation of the prohibition against special or local legislation because we find á rational basis for the limitation period and for the fact that it is shorter than the limitation periods in other statutes. Therefore, the judgment is affirmed.

Section 23-110-406 is a combination escheat and limitation statute. It provides that the franchise holder is to retain one-third of the proceeds of the unredeemed ticket, one-third is to be distributed to the state treasurer, and one-third is to be distributed to the county treasurer of the county where the racing franchise is located.

Mr. Mahurin purchased 128 separate “classix” tickets on March 31, 1987. To win in the classix betting pool, the ticket holder must select all the winning horses in races three through eight. Mahurin claims he held a winning ticket which, with consolation winnings added, had a redemption value of $23,379.20. He sent a memorandum, dated November 5,1987, to Oaklawn stating he held the winning ticket and asking “when the ticket will revert to the State of Arkansas,” and stating he hoped to cash the ticket in 198 8. He asked for an opinion “on the cashing of such a ticket in a later year.”

In an affidavit attached to Oaklawn’s motion for summary judgment, Eric Jackson, Oaklawn’s general manager, stated the proceeds remaining from the 1987 racing meet had been distributed according to law on October 28, 1987, and the accounts of the 1987 meet had been closed.

1. Lack of notice

Mr. Mahurin’s first point is that the 180 day limitation was not stated on the ticket which constituted his contract with Oaklawn and thus the statute “has no bearing on the actual contract reached between these parties.” He cites no authority whatever for this point. Nor do we find convincing his argument that the terms of the statute, which purports to apply to parimutuel betting, do not apply because Oaklawn did not inform Mahurin of it other than “intermittently” in a separate racing program which he would have been required to purchase in addition to his ticket. When carried to its logical conclusion this argument would require that all laws affecting contracts be stated in the contracts or that notice of all such laws otherwise be supplied to a contracting party.

Oaklawn does not concede that the relationship between these parties is governed by the law of contracts. It contends all the rights and obligations of the relationship are statutory. We need not decide that question. Even if the law of contracts governs, the law in effect at the time a contract is made forms a part of the contract as if it had been expressed in the contract. McArthur v. Smallwood, 225 Ark. 328, 281 S.W.2d 428 (1955); Petty v. Missouri & Arkansas Ry. Co., 205 Ark. 990, 167 S.W.2d 895, cert. denied, 320 U.S. 738 (1943).

2. Impairment of contract

Mr. Mahurin contends § 23-110-406 violates Ark. Const, art. 2, § 17, because it is a law which impairs the obligation of contract. The provision of § 17 is modeled on U.S. Const, art. 1, § 10, the first paragraph of which prevents the states from passing any law impairing the obligation of contracts. The Supreme Court has held that this section applies only to legislation passed subsequent to the contract alleged to have been impaired. Munday v. Wisconsin Trust Co., 252 U.S. 499 (1920).

Section 23-110-406 was passed in 1965. We agree with the position taken by the Supreme Court with respect to the language of the United States Constitution which is identical to the language of the Arkansas Constitution upon which Mahurin relies. It prevents only the passage of statutes which would have the effect of impairing obligations previously entered.

3. Due process

Mr. Mahurin argues his winnings were taken without notice or a hearing, citing U.S. Const., amendments 5 and 14, and Ark. Const, art. 2, § 22. He also cites cases containing the familiar language assuring that a citizen be given notice and a hearing prior to any governmental taking or impairment of his or her property. E.g., Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972).

There has been no taking of property here. Rather, Mahurin has been precluded from obtaining property by the operation of § 22-101 -406. While it is clear he would have been entitled to notice and a hearing had he received his winnings and had there been an adjudication that he was not entitled to them, there is no such requirement when a law operates to prevent him from acquiring them. As Mr. Justice Holmes wrote in Bi-Metellic Co. v. Colorado, 239 U.S. 441 (1915):

General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule. [239 U.S. at 445]

The difference between legislative action, with respect to which a citizen has no personal right to notice and a hearing, and adjudicatory governmental action, where those personal rights must be protected, is spelled out by the California Supreme Court in Horn v. County of Ventura, 156 Cal. Rptr. 718, 596 P.2d 1124 (1979).

The effect of the statute in this case was to void a claim after a period of time had passed. We agree with Oaklawn that the preclusion aspect of the statute is, or is the same as, a statute of limitation, and its effect is not adjudicatory but legislative.

4. Special legislation

The argument made by Mr. Mahurin here is that the 180-day escheatment statute constitutes local or special legislation. Arkansas Const, art. 5, § 25, and amend. 14 prohibit passage by the general assembly of any local or special act. Mahurin contends that the act is special or local legislation because it permits Oaklawn to retain one-third of the escheated money. He also contends, “ [e] very other Arkansas statute adheres to either a one, two, three or five year limitation.” His position is that no argument can be made that the limitation should be so short, and that Oaklawn is favored because a horse racing franchise operator may retain one-third of the escheated monies whereas the statute providing the 180-day escheatment period for a dog racing franchise requires that all the money be distributed to public entities.

In Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983), this court held that legislation would not be regarded as “special” unless it established a separate class on an arbitrary basis. Oaklawn’s argument on this point is that there is good reason to differentiate between escheatment of funds which would be paid to a winning racing ticket and escheatment of, for example, the property of a person with no known heirs. The reason is that the holder of a winning ticket knows or can know on the day of the race whether the ticket is a winner or not. There is no need for court proceedings to determine, for example, whether property is abandoned or there are heirs to whom the property should be distributed. We agree there is a rational basis for the distinction between this short limitation period and the longer ones with which Mr. Mahurin compares it.

As to the point that Oaklawn benefits from the escheatment and the Southland dog track does not benefit from the similar statute regarding escheatment of the unclaimed winnings there, we need only point out that Mahurin lacks standing to raise the point. Whether the escheatment goes to the government altogether or is divided as provided in § 23-110-406 is irrelevant to Mahurin’s claim. As we wrote in Wineman v. Brewer, 280 Ark. 527, 660 S.W.2d 655 (1983),“ [a] party may not obtain a decision on the validity of a statute on the ground that it impairs the rights of others.” To question the statute on the basis of the disparity between it and the statute applying to the dog track, Mahurin must show that disparity had an impact on him, Montgomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982), and he cannot do so.

Affirmed.


text:
    BREWER AND TAYLOR COMPANY, Noel and Fay Droemer v. Sara Ann WALL and Wayne Wall, Her Husband; Joy Sue Thomas, and Levaun Thomas, Her Husband; Roy A. Franks Revocable Trust, by Oleta Thompson and Beatrice Phillips, Trustees
    88-287
    769 S.W.2d 753
    Supreme Court of Arkansas
    Opinion delivered May 22, 1989

      Lippard and Mueller, by: C. Richard Lippard, for appellant Brewer and Taylor Co.

      Pryor, Barry, Smith & Karber, by: John D. Alford, for appellants Noel and Fay Droemer.

      Hixson, Cleveland & Rush, by: R.H. “Buddy” Hixson, for appellee.
   Tom Glaze, Justice.

This case involves the construction of seven deeds executed by the appellees’ predecessors to the Choctaw & Memphis Railroad. The appellees are the present owners of the land adjoining the railroad right of way, and they originated this quiet-title action. The trial court found that the titles to the land in question reverted to the appellees, because the deeds conveyed only an easement to the railroad, and that easement was abandoned when the railroad ceased operation on April 19, 1984. The appellants, the present possessors of the railroad’s right-of-way interests, bring this appeal alleging that the chancellor erred in finding that the deeds conveyed an easement interest instead of a fee simple. In addition, appellants Noel and Fay Droemer contend that the chancellor erred in finding that the easement was abandoned. We affirm.

In 1898 and 1899, seven deeds were executed by the previous owners of the land, conveying to the Choctaw & Memphis Railroad a strip of land one hundred feet in width for a right of way. The Chicago Rock Island and Pacific Railroad Company was the successor in interest to the Choctaw & Memphis Railroad. After filing for bankruptcy, the railroad ceased operation on April 19, 1984. The railroad’s property, including the right of way interest in question, was conveyed by quit-claim deed to Chicago Pacific Company. The Chicago Pacific Company then conveyed by quit-claim deed the property to Brewer and Taylor Company, who then conveyed part of the property to Noel and Faye Droemer.

When this court is called upon to construe deeds and other writings, we are concerned primarily with ascertaining the intention of the parties, and such writings will be examined from their four corners for the purpose of ascertaining that intent from the language employed. Coleman v. Missouri Pac. R.R., 294 Ark. 633, 745 S.W.2d 622 (1988). Further, if the parties’ intent clearly appears, it will be given effect. Id. In prior cases, we identified the following factors as indications of the intent to convey an easement: 1) the deed specifies that the land conveyed is for a right of way; 2) only nominal consideration is stated; 3) the shape of the tract makes other uses unlikely; and 4) the railroad is given the specific right to take stone, gravel, timber and earth from the strip itself. Wylie v. Tull, 298 Ark. 511, 769 S.W.2d 409 (1989); Coleman, 294 Ark. 633, 745 S.W.2d 622; Daughtery v. Helena & Northwestern Ry., 221 Ark. 101, 252 S.W.2d 546 (1952).

On the other hand, we have recognized that the following factors indicate the intent to convey a fee simple interest: 1) the right of increasing the width of the strip of land for necessary slopes, embankments, and turnouts and with the right of changing water courses, and of taking a supply of water and of borrowing or wasting earth, stone or gravel outside the strip; 2) the conveyance of additional land besides the strip; and 3) the relinquishment of dower rights. Wylie, 298 Ark. 511, 769 S.W.2d 409; Coleman, 294 Ark. 633, 745 S.W.2d 622.

In reviewing the deeds in the present case, we discover that all the deeds but one use the same form entitled “Right of Way and Release of Damages.” The one exception is in handwriting but contains the same provisions as the others. All of the deeds contain the following granting language, “hereby grant, bargain, sell and convey unto the Choctaw & Memphis Railroad Company, and unto its successors and assigns forever, a strip of land one hundred feet in width for a right of way.” The seven deeds specifically give the railroad the right to change the water courses and to take stone, gravel and timber, and to borrow earth on said right of way for the construction and maintenance of said railroad. In addition, five of the deeds provide when necessary to the proper construction of the railroad the right to make embankments, or cuts, or other works on either or both sides of said right of way but not to exceed fifty feet in width on each side. This language is scratched out with a pen in the other two deeds. Further, with one exception, the deeds provide for the relinquishment of dower rights. In the sole exception, the language pertaining to dower rights has been scratched out by someone using a pen. The amount of consideration varies in the deeds — two of the deeds have consideration in the amount of $300.00, two for $100.00, one for $150.00, $50.00 and $1.00.

The deeds in issue contain indications of the conveyance of a fee simple and an easement. First, we recognize the following fee simple factors are present in the majority of the deeds: 1) relinquishment of dower rights; 2) the right to make embankments, or cuts or other works on land outside the right of way when necessary for the construction of the railroad; and 3) the conveyance language used in the deeds. While these factors are present, none of them are decisive on the issue. For instance, in Wylie, this court stated that the right to use land outside the right of way does not always indicate a conveyance of a fee simple. In the present case, the right is limited to fifty feet either side of the track. The limited right to go on the grantor’s land adjacent to the land conveyed can be no more than the granting of an easement on the adjacent property. Wylie, 298 Ark. 511, 769 S.W.2d 409. In addition, although the use of grant, bargain and sell is the conveyance language used to warrant title and thus used to convey fee simple interests, that factor by itself does not require a finding of a fee simple. In Daughtery v. Helena & Northwestern Ry., 221 Ark. 101, 252 S.W.2d 546 (1952), the deed to the railroad also contained the grant, bargain and sell language, but we concluded that the deed conveyed an easement relying on other factors, such as the shape of the tract conveyed and the right to take stone, gravel and earth from the right of way.

As previously noted, the deeds also contain several factors indicating an easement. Particularly, we believe that the following provisions contained in the deeds are persuasive. First, the deed specifies that the land conveyed is for a right of way. In fact, not only are the deeds entitled “Right of Way” but the granting language itself states that the conveyance is for a right of way to have the main track of the railroad located and constructed on and across the tract of land. In addition, the shape of the tract conveyed makes any other use unlikely. The deed conveyed a strip of land one hundred feet in width with the right to use fifty feet on either side when necessary for the construction of the railroad. Finally, the railroad was specifically given the right to change the water courses and to take stone, gravel and timber, and to borrow earth on the right of way for the construction and maintenance of the railroad. As we have recognized in earlier cases, such a provision would be unnecessary if a conveyance of a fee simple was intended. See Coleman, 294 Ark. 633, 745 S.W.2d 622; Daughtery, 221 Ark. 101, 252 S.W.2d 546.

Admittedly, this case is a close call. But, after reviewing the four corners of the deeds, we believe that the above easement factors preponderate the conclusion that the parties intended the deeds to convey an easement. Furthermore, we are unable to say the trial court’s finding is in error.

We also agree with the chancellor’s finding that the easement was abandoned. Our case law provides that an easement will be held to be abandoned when the intention to abandon and the acts by which such intention is carried into effect clearly indicate such abandonment. Drainage District No. 16, Mississippi County v. Holly and Roach, 213 Ark. 889, 214 S.W.2d 224 (1948). While generally nonuse is not sufficient, an abandonment of a grant of an easement of a public nature, like a railroad right of way, is more readily presumed from a long period of nonuse. See Gurdon & Ft. Smith R.R. Co. v. Vaught, 97 Ark. 234, 133 S.W. 1019 (1911). In addition, this court has stated that a conveyance of a public easement for a private use abandons the easement. See Cannco Contractors, Inc. v. Livingston, 282 Ark. 438, 669 S.W.2d 457 (1984). While the deeds in the present case do not expressly state that the right of way is for railroad purposes only, it is clear from the language of the deeds that the conveyance is for the purpose of constructing the railroad. Therefore, we conclude that when the railroad ceased operation in 1984 and the easement was conveyed for private purposes, the easement was abandoned.

For the reasons stated above, we affirm.

       Chicago Pacific Company was a party in the lawsuit, but it does not appeal from the chancellor’s order.


author: Per Curiam.

text:
    Tommy PEARSON v. STATE of Arkansas
    RC 89-18
    771 S.W.2d 249
    Supreme Court of Arkansas
    Opinion delivered May 22, 1989

      William R. Simpson, Jr., Public Defender, Donald K. Campbell III, Deputy Public Defender, for appellant.
    No objection.
   Per Curiam.

Petitioner Tommy Pearson, by his attorney, has filed a second motion for a rule on the clerk. His attorney, Donald K. Campbell III, has by affidavit admitted it was his fault that the record was not timely tendered.

We find that the error, admittedly made by the criminal defendant’s attorney, is good cause to grant the motion for a rule on the clerk.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Bobby Darryl TILLMAN v. STATE of Arkansas
    RC 89-19
    770 S.W.2d 653
    Supreme Court of Arkansas
    Opinion delivered May 22, 1989

      John W. Achor, for appellant.
    No objection.
   Per Curiam.

Appellant, Bobby Darryl Tillman, by his attorney, has filed for a rule on the clerk.

His attorney, John W. Achor, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    Nylon VICK v. STATE of Arkansas
    CR 89-2
    770 S.W.2d 653
    Supreme Court of Arkansas
    Opinion delivered May 30, 1989

      James P. Massie, for appellant.

      Steve Clark, Att’y Gen., by: Kay J. Jackson Demailly, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Nylon Vick was convicted of two counts of rape and one count of kidnapping and sentenced to 140 years imprisonment. For reversal, he argues that the prosecution violated his fourteenth amendment right to a fair trial by asking him about his post-arrest silence. See Doyle v. Ohio, 426 U.S. 610 (1976); Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1986). We find no error under the circumstances and affirm.

In the early evening hours of June 22, 1988, the victim, who was selling books door to door on 10th Street in Little Rock, knocked on the door of appellant Vick’s residence. He invited her in, and she began making her sales presentation. As she was doing so, Vick excused himself and returned with a gun. After making her smoke drugs, he raped her. Shortly thereafter, he took her to a house near Park Lane and College Streets where he bought drugs. They returned to his residence, and he raped her again. The next day Vick and the victim went to a fast food restaurant. After returning home, he raped her again. On the following morning she escaped, went to his neighbor’s house, and called the police. Later that day she identified Vick in a photo lineup. The police issued an arrest warrant. Subsequently, Vick learned the police were looking for him and turned himself in.

At trial the prosecutor repeatedly questioned Vick on cross-examination concerning the reason he did not tell police at and after the time of arrest the exculpatory version of the facts he was giving at trial. Vick answered by stating that “the police did not ask me” and “[m]y lawyer had already warned me that I didn’t have to make a statement unless I wanted to.” After the prosecution asked and Vick answered numerous questions on this matter, defense counsel objected. The trial court sustained the objection. Thereafter, the prosecutor made no further reference to Vick’s silence at or after the time of arrest.

We need not consider the merits of Vick’s claim that the prosecution violated his fourteenth amendment right to a fair trial by asking him about his post-arrest silence as Vick received all the relief from the trial court that he requested. His counsel objected to the line of questioning, and the trial court granted his wish by sustaining the objection. No further mention was made of Vick’s silence. Since Vick requested neither an admonition nor a mistrial, no reversible error occurred. Jurney v. State, 298 Ark. 91, 766 S.W.2d 1 (1989); Daniels v. State, 293 Ark. 422, 739 S.W.2d 135 (1987).

Affirmed.


author: Darrell Hickman, Justice.

text:
    Walt PATTERSON v. HILLCREST HOME
    88-289
    770 S.W.2d 654
    Supreme Court of Arkansas
    Opinion delivered May 30, 1989

      Break G. Hopkins, Deputy General Counsel, and Robert B. Dahlgreen, Asst. Gen. Counsel, for Dep’t of Human Services, Office of General Counsel.

      Perroni, Rauls & Looney, P.A., by: Stanley D. Rauls, for appellee.
   Darrell Hickman, Justice.

This is the third case concerning the review and licensure of additional beds in nursing homes pursuant to Act 593 of 1987 and Act 40 of 1987, First Extraordinary Session. The trial court ordered the Department of Human Services (DHS) to review Hillcrest’s application for additional beds under Act 593 and, upon satisfactory completion, to issue the requested license. The court’s order is affirmed in part and reversed in part.

The issue in this case is the same one we addressed in the recent case of Scott v. Consolidated Health Management, Inc., 297 Ark. 601, 764 S.W.2d 434 (1989), that is, should Act 593 or Act 40 govern administrative review of the application? In this case, as in Scott, Act 593 was in effect at the time the application was filed, but Act 40 became effective before the review process was completed. We held in Scott that the nursing home’s application should be reviewed pursuant to Act 593. Therefore, the trial court’s ruling, ordering review of the application under Act 593, is affirmed.

The trial court also ordered licensure of the additional beds. Act 40 placed a moratorium on the issuance of such licenses to extend through June 1, 1989. We held in Arkansas Dept. of Human Services v. Green Acres Nursing Homes, Inc., 296 Ark. 475, 757 S.W.2d 563 (1988), that Act 40 prevents actual issuance of a license during the moratorium period, even though the application was filed before the effective date of Act 40. So the trial court erred in ordering issuance of the license and is reversed in that regard.

The appellant also argues that the trial court should have transferred the case to Greene County, the site of the first judicial review of the DHS’s interpretation of these two acts. See Ark. Code Ann. § 25-15-212(e) (1987). It would be a futile and senseless act to remand the case for transfer since the substantive issues in the case have been resolved by our recent decisions.

Affirmed in part and reversed in part.

Hays and Glaze, JJ., concur.


text:
    ROSE CITY PROPERTY OWNERS’ ASSOCIATION v. Mary THORNE, Mary Dover, Jack Keeling, C.L. Shaw, and William T. Snider, on Behalf of Themselves and all of the Citizens and Residents of the City North Little Rock, Arkansas
    88-300
    770 S.W.2d 655
    Supreme Court of Arkansas
    Opinion delivered May 30, 1989
    [Rehearing denied June 26, 1989.]

      Gill Law Firm, by: Joe D. Calhoun, for appellants.

      Mitchell & Roachell, by: Richard R. Roachell and David E. Simmons, for appellees.

       Hays, J., would grant rehearing.

   Robert H. Dudley, Justice.

On July 28, 1987, the appellees, in their capacity as North Little Rock taxpayers, filed a complaint in which they alleged an illegal exaction by the City of North Little Rock. The case was set for trial at 9:00 a.m., on March 2, 1988. The appellants sought to intervene at the last moment, 4:27 p.m., on March 1,1988. The trial court ruled that the motion to intervene was not timely filed. Appellants appeal the ruling. We affirm, without reaching the merits of the case, because the appellants did not comply with Rule 9(d) of the Rules of the Supreme Court and Court of Appeals.

The abstract consists essentially of a verbatim reprinting of much of the record. Some matters, it is true, have been omitted, but no discernible effort has been made to condense, by paraphrasing in the first person, much of the record contained in the abstract. Out of seventy-one (71) pages in appellants’ abstract of the record, at least sixty (60) pages are almost a verbatim reproduction of pleadings, exhibits, and dialogue among the trial judge and the attorneys. Under such circumstances we affirm under Rule 9(e)(2). Board of Education of Franklin County v. Ozark School District, 280 Ark. 15, 655 S.W.2d 368 (1983), and Oaklawn Jockey Club, Inc. v. Jameson, 280 Ark. 150, 655 S.W.2d 417 (1983).

Affirmed.

Hays and Glaze, JJ., concurring, would affirm on the merits of the case.