author: Paul Ward, Justice. Lyle BrowN, Justice, John A. Fogleman, Justice,

text:
    Julius N. DeLAUGHTER et al v. W. R. BRITT
    5-4256
    418 S. W. 2d 638
    Opinion delivered September 18, 1967
    [Rehearing- denied October 16, 1967.]

      R. D. Rouse, for appellants.

      Hugh Lookadoo, for appellee.
   Paul Ward, Justice.

This litigation grew out of two written lease agreements (covering a period of fourteen years) wherein the (alleged) owners gave W. R. Britt (appellee) the right to use a total of 445 acres of land for farm and ranch purposes. Since the leases and the ensuing legal proceedings are somewhat lengthy and complicated, we summarize .below, for a better understanding of the issues involved, the pertinent and undisputed facts.

(a) The first lease, dated January 6, 1956, was from Julius N. DeLaughter and his wife Lois DeLaughter (appellants) as lessors to appellee as lessee. In paragraph 10 of the lease appellants warranted that they were the absolute owners of all the 445 acres of land and that they would hold appellee harmless ‘ ‘ against the unlawful claims of any and all persons ’ ’. (b) Later, during this litigation, it was revealed that appellants had title to only thirty acres and that the remaining 415 was owned by their minor son Julius N. Jr. who is an In-tervenor herein. By the terms of the first lease it was to terminate on December 31, 1960 but it continued, by oral agreement, until a second lease was executed on April 14, 1964. (c) The second lease was executed by the same parties as the first and contained the same warranty of title, and, with few minor exceptions, the terms of the two leases were the same.

Pleadings and Issue. We deem it sufficient at this point to summarize the twelve separate pleadings filed in the Chancery Court, following an alleged breach of the lease by appellee, (a) On December 18, 1965 appellants asked the conrt to enjoin appellee from interfering with their sale oh gravel located on the land. On January 18, 1966 they amended the pleading, and asked the court to cancel the second lease and give them possession of the property, (b) Appellant answered, denying any breach of the lease contract, asked for peaceful possession of the land, and asked that appellants be enjoined from selling gravel during the term of the lease. Then each party filed another amended pleading relative to the same issues, (c) On February 2, 1966 the minor (by his mother as next of kin) filed an Intervention, alleging that he was sixteen years old, and that he was the owner of all the land except thirty acres belonging to his parents — appellants. His prayer was that the lease be cancelled, that he be given immediate possession, and that he recover from appellee the rental value of his 415 acres of land, (d) In his answer ap-pellee denied Interpleader was the owner of the land. Appellee also filed an amendment to his original answer and a cross-complaint against appellants setting out the warranty clause and alleging payments of rent to them, and asked the court, in event it was decided Intervenor Avas the true owner, that he recover against appellants $1,500 for rents paid and $5,000 for damages suffered for breach of warranty in the leases.

Decree. After a lengthy hearing (during which time the trial court made a personal inspection of the premises) and after the court had made detailed findings of facts, it entered, in substance, the folloAving decree :

(a) Appellee is not to interfere with appellants’ removal of gravel from the thirty acre tract, but they shall not damage the portion maintained by appellee as a meadow.
(b) Intervenor is awarded judgment against ap-pellee in the sum of $6,150 with interest at 6 %from date of decree.
(c) Appellee is awarded judgment against appellants in the sum of $6,150 BUT ONLY after he has fully satisfied the judgment in favor of Intervenor —then the judgment in favor of appellee to bear 6% interest.

Appellants and Intervenor now prosecute this appeal, urging the points hereafter considered.

One. Intervenor urges that the court failed to allow interest on his judgment from January 1, 1956— the date when he was first deprived of the use of his land. For reasons presently stated, we are unable to grant any relief under this point.

The record discloses that on the margin of Intervenor’s recorded judgment there appears this notation: “Judgment in favor of Intervenor, Julius N., DeLaughter, Jr., in the sum of $6,150 paid and satisfied in full this 23rd day of August, 1966. R. D. Rouse, attorney of record for Intervenor. ’ ’ Thus, the Intervenor has already accepted the benefits of the decree and therefore cannot question its validity on appeal. It was so held in Ark. State Highway Comm. v. Marlar, 236 Ark. 385, 366 S. W. 2d 191; Baker v. Adams, 198 Ark. 482, 129 S. W. 2d 597, and; Jones et al v. Rogers, Trustee, et al, 222 Ark. 523, 261 S. W. 2d 649.

Two. We find no merit in appellants’ contention that appellee’s “pleadings do not justify the judgment rendered in his favor against appellants”. As pointed out heretofore, in appellee ?s amended answer [page 26 of the Record], he alleged damages in the amount of $6,500, and prayed judgment against appellants for said amount. Also, if the pleadings were not explicit the trial court had the right, without objection, to treat the pleadings as amended to conform to the proof. Callahan v. Farm Equipment, Inc., 225 Ark. 547, 283 S. W. 2d 692.

Three. Likewise we find no merit in appellants’ argument that appellee was not entitled to damages against them because they and appellee were Pari Delicto, [equally at fault] in dealing with lands which belonged to Intervenor. Conceding for the sake of argument that appellee knew when the leases were signed that most of the land belonged to appellants’ minor son [a fact not clearly shown by the Record], we cannot disregard the fact that paragraph ten of the first lease and paragraph eleven of the second lease contain identical language which reads:

“Lessors warrant that, they have an absolute and indefeasible title to said lands and warrant that they will, during the term hereof, defend the title to said lands and hold harmless said Lessee against the lawful claims of <my and all persons or parties Whomsoever or whatsoever.” [Emphasis added.']

Four. Finally it is contended by appellants that the trial court erred in finding the fair rental value of the thirty acres was $30 per year.

This is a fact question to be decided by the weight of the evidence disclosed by the record. We have read the record relating to this issue and are unwilling to say the finding of the trial court is against the weight of the evidence. We find no convincing testimony as to the rental value, however the value fixed is comparable to the value placed on all the land by the terms of the lease — $500 a year for 445 a'cres. We also take note that the trial court, before fixing this value, made a careful, personal inspection of the lands.

Affirmed.

Smith, Brown & Fogleman, JJ., dissent.

Lyle BrowN, Justice,

dissenting in part. I would modify the judgment of the trial court in one respect. I think the minor is entitled to interest on the r.ent monies due him, calculated on the basis of each annual due date. Ample authority for this conclusion is cited in Justice Fogleman’s dissent and is not here repeated.

John A. Fogleman, Justice,

dissenting. I must respectfully dissent from the decision and opinion of the majority.

In treating what they designate as appellants’ Point One, I feel that they have misapplied the very wholesome doctrine that one who has accepted benefits of a judgment or decreee cannot question the validity thereof. The validity of the judgment was not questioned by the minor appellant. He only contended that he was entitled to a greater amount in that the court failed to include in the damages for detention of his property interest on the amount found to be the annual fair rental value thereof. There was no cross-appeal as to the amount of these damages. His appeal could have only resulted in either an affirmance as to this amount or an increase and there was no hazard of a reduction of the amount of his recovery.

There is no doubt that the acceptance of benefit^ of a decree which are inconsistent with the relief sought on appeal bars the appeal and requires its dismissal. In addition to cases cited in the majority opinion, see Wolford v. Warfield, 170 Ark. 82, 278 S. W. 639; Mathis v. Litteral, 117 Ark. 481, 175 S. W. 398 and Anderson v. Anderson, 223 Ark. 571, 267 S. W. 2d 316. The same rule applies when the benefits accepted can only be enjoyed by abiding by the judgment of the court. Stanley v. Dishough, 50 Ark. 201, 6 S. W. 896. The doctrine does not apply, however, when the benefit accepted is not inconsistent with the claim asserted by appellant on appeal. M. H. McCown v. Nicks, 171 Ark. 260, 284 S. W. 739; Bass v. John, 217 Ark. 487, 230 S. W. 2d 946; Kelley v. Laconia Levee Dist., 74 Ark. 202, 85 S. W. 249; Cranford v. Hodges, 141 Ark. 587, 218 S. W. 185. The rule is well stated in an early case, Bolen v. Cumby, 53 Ark. 514, 14 S. W. 926, frequently cited in later cases, in these words:

“* ** Again, a party may prosecute Ms appeal from a judgment partly in Ms favor and partly against him even after accepting the benefit awarded him by the judgment, provided the record discloses that what he recovers is his in any event. ’ ’

The acceptance of an amount less than appellant contends is due Mm is an estoppel against his appeal only when, by seeking to gain more by the appeal, he risks a smaller recovery on reversal. Coston v. Lee Wilson & Co., 109 Ark. 548, 160 S. W. 857. See also, Jones v. Hall, 136 Ark. 348, 206 S. W. 671 and Gate City Bldg. & Loan Ass’n. v. Frisby, 177 Ark. 252, 6 S. W. 2d 537.

The acceptance by appellants of a credit on a judgment against them for an amount becoming due them from an appellee after the rendition of the decree awarding the judgment was held not to be inconsistent with their appeal on which they only contended that they had not been allowed sufficient credits in arriving at the amount of the judgment. Poe v. Walker, 183 Ark. 659, 37 S. W. 2d 866. A wife challenging a decree of divorce in her favor for failure to award her certain personal property and because it placed a time limit on monthly alimony payments was not estopped to prosecute her appeal by acceptance of the monthly alimony payments provided in the decree where there was no cross-appeal questioning the amount of alimony to be paid each month. McIlroy v. McIlroy, 191 Ark. 45, 83 S. W. 2d 550.

TMs appeal, being, a trial de novo to decide whether interest should have been included in the jumor De-Laughter’s damages, could not have resulted in the recovery' of a smaller amount on reversal, so appellant was not estopped to appeal.

There is another reason why the son’s appeal is not barred. This appellant is a minor and subject to the disabilities of minority. An estoppel is not operative against one under legal disability. Wood v. Terry, 30 Ark. 385; Tobin v. Spann, 85 Ark. 556, 109 S. W. 534; Rowe v. Allison, 87 Ark. 206, 112 S. W. 395 and Arkansas Reo Motor Car Co. v. Goodlett, 163 Ark. 35, 258 S. W. 975.

The language of the opinion of this court in Hart v. Wimberly, 173 Ark. 1083, 296 S. W. 39, is particularly appropriate here. The probate court had ordered the sale of lands of a decedent for payment of his debts. The property constituted the homestead of his minor children. Two of them accepted their share of the proceeds of sale remaining after the payment of his debts. There it was said:

“Neither can the doctrine of estoppel be invoked by appellant from the fact that while yet minors two of them were paid their share of the money left from the sale of the homestead after paying the debts, and deposited with the clerk by the administrator. It would be a weak safeguard of the minor’s homestead rights, if the constitutional and statutory protection thrown around such rights could be destroyed by estoppel as is claimed here.”

The damages to which this appellant is entitled are those which would be due to a landowner from a trespasser. The measure of damages for appropriation of the use of land by a continuing trespass is the worth of the use of the property. Combs v. Lake, 91 Ark. 128, 120 S. W. 977 and Quality Excelsior Coal Co. v. Reeves, 206 Ark. 713, 177 S. W. 2d 728.

The worth of use of this type of land is its fair rental value. Quality Excelsior Coal Co. v. Reeves, supra. The rule has been recognized in Arkansas for a long time that the measure of damages to the owner for lands wrongfully withheld is the rental value of the land, if it has such value. Jacks v. Dyer, 31 Ark. 334; McDonald v. Kenney, 101 Ark. 9, 140 S. W. 999; Crowell v. Seelbinder, 185 Ark. 769, 49 S. W. 2d 389. As a part of the damages, the minor appellant was entitled to interest calculated from the end of each year to the date of judgment. Nunn v. Lynch (on rehearing), 89 Ark. 41, 115 S. W. 926; McDonald v. Kenney, supra, and McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88. The minor landowner was entitled to have this interest added to the rental value for each year and I would remand the case for this addition to the judgment in his favor.

As to Point Two, I agree that the pleadings are sufficient to form a basis for judgment in favor of ap-pellee against the adult appellants who were parents of the minor appellant and who are appellants here.

Where the right to recovery necessarily follows as a consequence of the decision of the court upon the allegations of a complaint, recovery may be had under the general prayer for relief. Cunningham v. Ashley, 16 Ark. 181. In chancery practice, where there is a prayer for specific relief and a prayer for general relief, if the state of the case as presented by the bill should not be sustained in evidence or the court should, upon principles of equity, refuse the specific relief, it may, notwithstanding, give to the complainant under his general prayer any relief warranted by the facts set forth in his bill, if the latter is framed to put the facts in issue so that there is no surprise to the adverse party. Cook v. Bronaugh, 13 Ark. 183; Kelly’s Heirs v. McGuire, 15 Ark. 555; Ross v. Davis, 17 Ark. 113; Shields v. Trammell, 19 Ark. 51; Chaffe & Bros. v. Oliver, 39 Ark. 531; Albersen v. Klanke, 177 Ark. 288, 6 S.W. 2d 292; Morgan v. Scott-Mayer Comm. Co., 185 Ark. 637, 48 S. W. 2d 838, and Grytbak v. Grytbak (on rehearing), 216 Ark. 674, 227 S. W. 2d 633. Even the omission of a prayer is not fatal if the relief to which a party is entitled is apparent from the allegations of the pleadings. Sannoner v. Jacobson & Co., 47 Ark. 31, 14 S. W. 458. If an issue is made by the pleadings and proof directed thereto, the complaint should not be dismissed but the prayer should be treated as amended to conform to the relief justified by the facts. Ashley v. Little Rock, 56 Ark. 391, 19 S. W. 1058 and Waterman v. Irby, 76 Ark. 551, 89 S. W. 844.

The first argument advanced by these appellants on this point is based on the failure of appellee to specifically pray for judgment over against them for any amount for which judgment was awarded the minor appellant. The pleading filed by appellee, however, alleged that if the lease be set aside that he should have judgment against the adults for $1,500.00 for repayment of rent, attorney’s fees and costs and damages for the loss of the pasture in the amount of $5,000.00. Prayer was for judgment for $6,500.00, plus attorney’s fees and costs and “for all other just and proper relief.” While appellee was in error as to the measure of his recovery, he did put in issue his right to recover for his loss under the indemnity clause in the lease between the parents and appellee. I do not see how appellee could have been surprised by the proof and the judgment granted.

In another respect, however, the judgment was erroneous in that the maximum amount of recovery is limited to the amount set out in the complaint and it is error to render judgment for a greater amount. Hudspeth & Sutton v. Gray, Durrive & Co., 5 Ark. 157; White v. Cannada, 25 Ark. 41; Cohn v. Hoffman, 45 Ark. 376 (damages in ejectment); Western Union Telegraph Co. v. Byrd, Admx., 197 Ark. 152, 122 S. W. 2d 569; Turner v. Smith, 217 Ark. 441, 231 S. W. 2d 110 (chancery case); Thudium v. Dickson, 218 Ark. 1, 235 S. W. 2d 53; Arkansas Power & Light Co. v. Murry, 231 Ark. 559, 331 S. W. 2d 98; Abel of Arkansas, Inc. v. Richards, 236 Ark. 281, 365 S. W. 2d 705. For this reason I would reduce the judgment in favor of appellee to $6,500.00, if the judgment itself were not erroneous and void for still another reason.

The decree rendered provided that appellee have judgment against the adult appellants after, and only after, he had fully satisfied the judgment against him by the intervener, their son. Such a decree is without authority of law and void. Bank of Commerce v. Goolsby, 129 Ark. 416, 196 S. W. 803. Judgments take their validity from the action of the court on existing facta and not from what may happen in the future after the court has rendered its judgment. Brotherhood of Locomotive Firemen and Enginemen v. Simmons, 190 Ark. 480, 79 S. W. 2d 419.

This is not to say that appellee has no right of recovery against the senior DeLaughters, either in this action or a subsequent one. The void contingent judgment should be reversed, however, and the cause remanded for further proceedings. In all other respects I concur with the majority.

I am authorized to state that George Rose Smith, J., joins in this dissent.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    James Lloyd BOSTIC v. CITY OF LITTLE ROCK, Ark.
    5288
    418 S. W. 2d 619
    Opinion delivered September 18, 1967

      Harry C. Robinson, for appellant.

      Joe Kemp, Little Rock City Attorney; Perry Whitmore, Asst. City Atty., for appellee.
   John A. Fogleman, Justice.

This is the second appeal in this case. In the first (241 Ark. 671, 409 S. W. 2d 825), appellant’s conviction of keeping a gambling device in violation of Ark. Stat. Ann. § 41-2008 (Repl. 1964) was affirmed. The case was there tried de novo on appeal from a conviction in the Municipal Court of Little Rock. The gambling device in question was a “pinball” machine on which appellant was found guilty of “paying off” for free games accumulated on the machine by players using it. Appellant there contended that these machines were not among the gambling devices prohibited by the above mentioned statute. This question was resolved against appellant on the previous appeal.

The machine was ordered destroyed by the municipal court. The circuit court did not order its destruction in the judgment from which the first appeal was taken. After affirmance, the mandate of this court was issued on January 27, 1967. Thereafter the circuit court entered an order on March 1, 1967, ordering the Little Bock 'Chief of Police to forthwith cause the machine seized to be publicly burned. This appeal comes from that judgment upon the contention that the court erred in ordering the machine burned or destroyed.

The principal argument advanced by appellant is that after appellant’s conviction was appealed, the trial court lost jurisdiction over the case and, not having ordered the destruction in its judgment entered upon the jury verdict, could not do so after the transcript of the record on appeal was filed in this court.

It is true that a trial court does not have jurisdiction of its judgment or sentence during the pendency of an appeal for the purpose of modification or alteration. Fletcher v. State, 198 Ark. 380, 128 S. W. 2d 997. It is also true that the trial court has no jurisdiction to modify or vacate a judgment or sentence in a criminal case after affirmance by this court. Freeman v. State, 158 Ark. 262, 249 S. W. 582; Mitchell v. State, 232 Ark. 371, 337 S. W. 2d 663. The real purpose of the rule is to prevent the trial court from varying the judgment rendered or examining it for any purpose other than execution thereof. Fortenberry v. Frazier, 5 Ark. 200; Mitchell v. State, supra. The trial judge, however, has a continuing right to enforce appropriate orders after the filing of the mandate of this court and jurisdiction is reacquired following affirmance on appeal. Scaife v. State, 210 Ark. 544, 196 S. W. 2d 902.

It is also stated in appellant’s brief that the recitation by the trial court in its order of destruction that appellant was initially served with a warrant issued out of the municipal court directing that the machine be burned is not supported by anything in the record on either appeal. A search of the transcripts on the two appeals does not reveal any warrant. Even though the municipal court had not ordered the destruction of the machine, the absence of a warrant in the record is not necessarily fatal to the judgment from which this appeal is taken. For instance, if a seizure of the machine had been made without a warrant because it was publicly exhibited and operated, an order to destroy it would be proper. Garland Novelty Co. v. State, 71 Ark. 138, 71 S. W. 257. Provisions of the statute authorizing destruction of property used in violation of § 41-2003 have been referred to as a summary remedy in the exercise of the police power to suppress gambling, which has been declared to be a nuisance. Furth v. State, 72 Ark. 161, 78 S. W. 759; Garland Novelty Co. v. State supra. Section 41-2009 authorizes destruction of any device which is made unlawful to keep by § 41-2003. Steed v. State, 189 Ark. 389, 72 S. W. 2d 542. While some of the earlier cases indicate that only those devices which are both made and kept solely for the purpose of gambling are subject to destruction, later cases base the application of the statute on the use to which the device is put. See Burnside v. State, 219 Ark. 596, 243 S. W. 2d 736; Albright v. Karston, 206 Ark. 307, 176 S. W. 2d 421. In Albright v. Muncrief, 206 Ark. 319, 176 S. W. 2d 426, a teletype machine being used to transmit race horse information to various gambling houses, was held to be subject to destruction, even though the information was also used for other purposes. The court said that the evil effects to be suppressed were just as great in the use of instrumentalities designed for lawful use as when they were designed for the unlawful use to which they were put. This holding was partially based upon that section of the statute requiring that in construction of the “anti-gambling” statutes, the court shall adopt that construction “in favor of the prohibition and against the offender”. Ark. Stat. Ann. § 41-2017 (Repl. 1964) [Chapter 44, Div. 6, Art. 3, § 13, Revised Statutes]

Appellant does not question the status of this machine as a gambling device and that issue has been conclusively resolved against him on his former appeal. Such a device is not a lawful subject of property but has been declared contraband under the laws of this state. Bell & Swan v. State, 212 Ark. 337, 205 S. W. 2d 714. The owner of contraband. is not entitled to its return, even though the seizure was not lawful, so long as the article is held by an officer for the court or brought into court. O’Neal v. Parker, 83 Ark. 133, 103 S. W. 165; Ferguson v. Josey, 70 Ark. 94, 66 S. W. 345; Dodge v. United States, 272 U. S. 530, 47 S. Ct. 191, 71 L. Ed. 392. Even though the fact that the property procured might not be admissible in evidence because of an unlawful search, the court’s jurisdiction is based on the actual or constructive possession of the court. Strong v. United States, 46 F. 2d 257, cert. denied 284 U. S. 691, 52 S. Ct. 27, 76 L. Ed. 583. The fact that the seizure was without a search warrant and in violation of the Fourth Amendment to the Constitution of the United States would not entitle one claiming the contraband seized to its return. Trupiano v. United States, 334 U. S. 699, 68 S. Ct. 1229, 92 L. Ed. 1663.

Ark. Stat. Ann. § 41-2009 authorizes the destruction of devices the keeping of which is prohibited by § 41-2003. This being so, a delay of destruction of such device until its character has been determined to be within the purview of the statute has been held proper. Garland Novelty Co. v. State, 71 Ark. 138, 71 S. W. 257. While it was not necessary for the trial court to have done so, it was not error to withhold the order of destruction until its determination that the keeping of the machine was prohibited by § 41-2003 had become final on appeal, for it might have been necessary to have the machine as evidence if the case should have been reversed. During all of the time the machine had been in the custody of the officers, and particularly between the affirmance of the case in this court and the order of destruction, appellant might have sought a remedy, if it were wrongfully held, in replevin or trespass. Furth v. State, 72 Ark. 161, 78 S. W. 759. Nothing in this record indicates that he did.

The judgment is affirmed.

      See, e.g., Garland Novelty Co. v. State, 71 Ark. 138, 71 S. W. 257.


author: Carleton Harris, Chief Justice.

text:
    Ralph Burk SHADDOX v. STATE of Arkansas
    5291
    418 S. W. 2d 780
    Opinion delivered September 25, 1967

      Robert Brockman, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Ralph Burk Shaddox was charged with the offense of assault with intent to kill, the Information charging that Shaddox shot Johnny Younes on August 9, 1966, in Boone County, with the intention of killing Younes. On trial, the jury returned a verdict of guilty, and fixed appellant’s punishment at five years imprisonment in the State Penitentiary. From the judgment so entered, Shaddox brings this appeal.

For reversal, it is first asserted that the evidence was insufficient to sustain a conviction for the offense alleged. We do not agree. Evidence on the part of the state was to the effect that Shaddox was indebted to Younes, who operated an automobile supply store in Boone County. On August 9, Younes was visiting at a service station operated 'by Clyde Loftin, when Shaddox drove into the station. Both men spoke, and Younes then inquired of Shaddox “why he hadn’t been in to see me, and he knew what I meant because everytime I see someone who owes me and who is past due, I say why haven’t you been in and he said he had it on him, then he said do you want to try to take it off me — those were the words he used.” Younes testified that the words were spoken in an unfriendly manner, and that he stepped over to the front of appellant’s car, and, opening the door, reached in for the purpose of complying with Shaddox’s invitation, i.e., to take the money “off him.” Younes was not armed, and the witness testified that he had no intention of harming appellant. As he reached in, grabbing hold of appellant’s shirt, Shaddox fired a pistol, striking Younes in his right chest. The victim stated that he said something to Shaddox to the effect that the latter had shot him, and he testified that appellant said, “Yes, I -will kill you, too.” Dr. Jean Gladden, who removed the bullet, testified that if the shot had “been a little over the other way” the wound would have been fatal; that a large blood vessel was perforated in the lung, and that if Younes “had been very far away from a hospital, I think he would have died.” Clyde Loftin testified:

“Ralph had brought me a jack, a big hydraulic jack, and I was going around the car to get the jack and I walked up on the right side of the car and Ralph told me the jack was between the seats and I was going behind the car, around to get the jack* * *
“I walked up to the right side of Ralph’s car, that’s when he told me the jack was there between the seats and I did look inside the car.”

Loftin stated that he observed ‘ ‘ a pistol laying in the front seat. Laying about the middle of the seat.” Within seconds, he saw Younes reach into the car, and heard the report of the pistol. Shaddox testified that he thought Younes had cut him, and that he was only trying to scare the prosecuting witness. In Farrar v. State, 240 Ark. 447, 400 S. W. 2d 289, we said:

“It was within the province of the jury to determine the true facts in the case, and certainly, there was substantial evidence to support the verdict. The facts and circumstances of the assault, as related by Staudt, indicated an intention by Farrar to kill the prosecuting witness, or to cause great bodily harm. The weapon used, a 12-gauge shotgun, and the extent of wounds on the body, together with the state of feeling existing between the parties prior to the difficulty, were all matters to be considered by the jury. Davis v. State, 206 Ark. 726, 177 S. W. 2d 190.”

Here, likewise, the jury was entitled to consider the state of feeling existing between the two men prior to the difficulty, the nature of the wound on the body, the weapon used, and the fact that it was in the seat beside Shaddox, ready for instant nse. The evidence was sufficient to sustain the conviction.

It is next asserted that the court erred in denying appellant’s motion for mistrial due to the special prosecutor’s manner of questioning Shaddox concerning alleged prior acts of misconduct by appellant. This point is well taken, and the error committed calls for reversal.

The transcript reflects a long line of questioning during cross-examination relative to convictions, including references to arrests. Ark. Stat. Ann. § 28-605 (Repl. 1962) permits evidence of former convictions of crime as a matter of going to the credibility of the weight to be given a defendant’s testimony. See also Johnson v. State, 236 Ark. 917, 370 S. W. 2d 610, and cases cited therein. However, the special prosecutor went far afield in this particular cross-examination. The prosecutor was evidently holding a “rap sheet” in his hand, and several times made, reference to this paper. On one occasion, Shaddox was asked if he had been in Albany, California, and the witness replied that he didn’t remember being there, but “if you say I did, I was.” The prosecutor then replied, “I don’t say, I am reading from a paper that has been furnished me.” Again, the prosecutor said:

‘ ‘ These notes here shows that Ralph Burk Shaddox, and gives the number of the ease on June 17, 1953, while yon were in the Public Health Service Hospital at Lexington, Kentucky you were charged with unlawfully mailing narcotics and the notes show you were sentenced to two years in the penitentiary.”

Appellant’s attorney objected, and the court replied, “Mr. Shouse, don’t refer to the amount of the-sentence, just was he convicted.” Defense counsel then moved for a mistrial, and the motion was denied. We think the court erred in not granting this motion. The reference to the “notes” undoubtedly could influence members of the jury to feel that the state’s attorney was holding irrefutable evidence of previous convictions, and could well have been prejudicial. We commented on a similar matter in Shroeder v. Johnson, 234 Ark. 443, 352 S. W. 2d 570. This was a civil case, but the principle likewise applies here, if not more so. In that case, Shroeder denied using a room in his hotel for immoral purposes, and counsel then- stated, “Mr. Shroeder, do you want to keep for your own information this rap sheet here. Just stick it in your pocket. ” In reversing the case because of this occurrence, we stated:

“In the.case under consideration, as in most situations of this nature, we cannot say with certainty that the jurors were prejudiced by the reference to the ‘rap sheet, ’ but we are less sure that they were not. Definitely the manner in which the reference was made was improper, and it left open to the jury a broad field of speculation as to appellant’s character and possibly his criminal record. The admonition of the court did not tell the jury what and to whom the ‘rap sheet’ referred, and if it had done so the prejudice probably would have been even greater.”

Here, of course, the paper did tell “what and to whom the ‘rap sheet’ referred,” and we agree that the prejudice may well have been much greater than in Shroeder, supra. Not only that, but in the cited case, the court did admonish the jury to disregard the reference to the paper, though we held that the admonition was insufficient to cure the prejudice that had resulted. Here, no such admonition was given. In addition, it will be quickly observed that the prosecutor’s, statement was, in effect, testimony — unsworn—and hearsay. The court should have granted the motion for a mistrial.

Other errors complained of are not likely to arise again in another trial.

Because of the error herein discussed, the judgment is reversed, and the cause remanded to the Boone Circuit Court.

      This is true, unless there is a statutory prohibition. For instance, see Ark. Stat. Ann. § 75-1012 (Repl. 1957), and our cases relative to this section.

      When a man is arrested and charged with crime in this state, under the usual procedure, he is fingerprinted, and a copy of the prints sent to the Department of Justice in Washington. That department then sends back to the arresting officers a copy of the defendant’s record, if any, which shows both previous arrests and convictions. This is sometimes referred to as a “rap sheet.” It is not clear in the instant case whether the special prosecutor was actually holding a copy of appellant’s' record in his ¡hand, or whether he had taken notes from the record, and was using those notes.

      In Shroeder, this court quoted a Kansas case, as follows: “There is, however, a class of cases which present argument and remarks so flagrantly prejudicial, or counsel may be so persistent in their impropriety, that the commendable efforts of the trial judge to eradicate the evil effects of them will be unavailing. In such event, then, a new trial is the only way to remove the prejudice, notwithstanding the judge may have reprimanded, or even fined, the offending attorney and positively and emphatically instructed the jury to disregard the prejudicial statements.”


author: George Rose Smith, Justice.

text:
    Dossie COX v. STATE of Arkansas
    5294
    418 S. W. 2d 799
    Opinion delivered September 25, 1967

      Otis Turner, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In 1948 the appellant was convicted of murder and sentenced to life imprisonment. He was still confined to the penitentiary when he filed the present petition under Criminal Procedure Rule No. 1, asserting that his constitutional rights were violated at the original trial. The trial court, after affording the petitioner the hearing contemplated by Rule 1, made the required written findings of fact and conclusions of law. The court dismissed the petition, holding that there was no showing that Cox’s constitutional rights had been infringed. At Cox’s request this appeal was taken.

We affirm the judgment, finding the appeal to he wholly without merit. At the original trial Cox was represented by competent counsel employed by his family. The jury found him to be guilty. At the Rule 1 hearing Cox made no complaint about his original trial and had no competent new evidence to offer. He admitted that “The only thing I can say is that I didn’t do it.” He conceded that he had a chance to make that denial before the jury in 1948. Two other witnesses testified. Cox’s sister stated that Cox’s daughter or stepdaughter, who was two years old in 1948, had said that Cox’s wife later admitted that she was the guilty person. Needless to say, such hearsay evidence is not admissible. Cox’s niece testified that if a certain witness living in Indiana were produced he would testify that he was with Cox when the crime was supposedly committed. Even so, the matter of Cox’s asserted alibi was an issue of fact that was or could have been raised at the trial in 1948. Rule 1 is not intended to provide the petitioner with a new trial simply because a jury found him to be guilty, on conflicting testimony.

Affirmed.

Brown, J., disqualified.


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

text:
    Willie Joe CHILDS et al v. STATE of Arkansas
    5253
    418 S. W. 2d 793
    Opinion delivered September 25, 1967

      Willis V. Lewis, for appellants.
    Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Paul Ward, Justice.

Appellants, Willie Joe Childs, Frankie Matthews, and Tommy Matthews, charged with stealing $500 from Kroger Stores, were convicted of grand larceny on December 5, 1966 and sentenced to serve nine years in the penitentiary.

There is no contention by appellants here that they did not commit the crime but they seek a reversal based solely on the grounds that the trial court committed three separate errors during the process of the trial.

We have carefully examined each of the alleged errors and, as explained hereafter, find no merit in any of them.

One. It is first urged that the court erred in admitting in evidence the confession made by appellants “without the benefit of counsel”.

The undisputed testimony of the State Police Investigators (to whom the admissions of guilt were made by Tommy and Frankie Matthews) is that appellants were advised of their rights to have an attorney and to refuse to answer questions, and that if they did make any admission of guilt it might be used against them.

Appellants, for a reversal, rely on Miranda v. Arizona, 384 U. S. 436, citing the following statement:

“If an individual held for interrogation by a law enforcement officer indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. ’ ’

At no time did Tommy or Frankie Matthews in any way indicate they wanted to consult with an attorney.

With reference to Childs’ confession the situation was different. Bill Mitchell (a criminal investigator) testified:

“I advised him that he didn’t have to tell me anything unless he had an attorney present and that if he did tell me something it might be used against him. That if he didn’t have funds for an attorney I would be glad to get him one.”

After a conference in chambers between the court and the attorneys the witness further testified:

“Q. When you asked Willie Joe Childs whether or not he wanted an attorney, what was his reply?
“A. He said that he did, and he agreed to go ahead and talk to me.
"Q. He agreed to go ahead and talk to you?
"A. Yes, sir.
"Q. After you asked him if he wanted an attorney and you advised him of his other rights you have outlined?
“A. Yes, sir.”

Following the above the witness testified to what Childs told him.

Again, no objection was made to the above testimony, and no exception was saved. Thus, if it be admitted for the purpose of this opinion that the court erred in allowing the confessions in evidence, such cannot be reviewed on appeal. Criner v. State, 236 Ark. 220, 365 S. W. 2d 252 and Norman v. State, 236 Ark. 476, 366 S. W. 2d 891.

Also, we point out our holding in the case of Slaughter & Scott v. State, 240 Ark. 471, 400 S. W. 2d 267, where we said:

“However, this is a personal right and the accused may knowingly and intelligently waive counsel either at a pretrial stage or at the trial.”

Two. It is next contended that the conrt erred in allowing the state to introduce testimony showing appellants were “habitual and consistent criminals”.

The question in issue arose in this manner. After the State Investigator had testified at some length regarding his connection with the investigation of the case, he made this statement: “I advised both subjects [Mat-thewses] of their rights, of their right to counsel, of their rights under the Fifth Amendment to the Constitution, and during the interview were advised that they had committed a till tap . . . .”

Thereupon appellants’ attorney objected “. . .unless he can show they had an attorney present when they made the statement”. The trial court overruled the objection and exceptions were saved by appellant.

A “till tap”, as explained by the State Investigator, is where one person attracts the attention of the guardian of the “till” while his accomplice takes the money. In other words, that is one way of committing larceny to which these appellants confessed. We find no reversible error for the reason, as previously pointed out, the Matthewses at no time requested an attorney although they were fully advised of their right to have one.

Three. Finally, appellants contend the trial court committed reversible error in refusing to declare a mistrial because of a certain statement made by the State’s Attorney in his closing argument to the jury. The essence of the statement was that the defendants do not live in the county, ‘ ‘ they came in here. They stole somebody else’s money, money that other people worked hard for. All you folks worked hard for your money. They didn’t — They don’t; They won’t. Send them to the Arkansas Penitentiary'for 21 years”.

We find no reversible error. The jurors were evidently not'too much impressed with the argument — they gave the defendants nine years and not twenty one. No objection was made to the argument at the time, but only after the jury had- announced its verdict. Therefore the trial court had no opportunity to admonish the jury, even had it been necessary to do so and we don’t think it was. In the case of Reynolds v. State, 220 Ark. 188, 246 S. W. 2d 724, we find his statement:

“Our rule is that we do ‘not reverse for the mere expression of opinion of counsel in their argument before juries, unless so flagrant as to arouse passion and prejudice, made for that purpose, and necessarily having that effect’ ”.

To the same effect see Freeman v. State, 238 Ark. 804 (p. 808), 385 S. W. 2d 156.

Affirmed.

Fogleman, J., concurs.

Byrd and Brown, JJ., dissent.

John A. Fogleman, Justice,

concurring. I concur in the result reached by the majority, but my reasons for doing so are different from theirs insofar as points two and three are concerned.

POINT TWO

As I understand appellants’" position, they question the admissibility of the testimony of officer Atkinson that one of appellants stated, in response to a question, that he hadn’t worked for four or five years and that appellant had conducted “till taps”, “pigeon drops” and “con games” throughout about three or four states, and that the statement was substantiated by this appellant’s wife. The officer -had previously stated that a “till tap” was a “con game” in which one of the “crew” by which it is conducted diverts the attention of the owner or manager of a place of business while another goes into the cash box or drawer and removes the proceeds, the method allegedly used by appellants in this case. Appellants made an objection to the introduction of this testimony, were overruled and noted their exceptions. They urged in the motion for new trial and in their brief that the impropriety lay in permitting the state to attempt to show evidence of other offenses by appellants and to attack the character of appellants. I deem this testimony to be proper to show a series of similar offenses and a system of operation in the execution of a common plan, scheme, design, purpose and conspiracy of appellants. Setzer v. State, 110 Ark. 226, 161 S. W. 190; Nichols v. State, 153 Ark. 467, 240 S. W. 716; Middleton v. State, 162 Ark. 530, 258 S. W. 995; Larman v. State, 171 Ark. 1188, 286 S. W. 933; Puckett v. State, 194 Ark. 449, 108 S. W. 2d 468; Rowland v. State, 213 Ark. 780, 213 S. W. 2d 370; Mouser v. State, 216 Ark. 965, 228 S. W. 2d 472.

POINT THREE

I agree that objection to the argument of the State’s attorney should have been made in time for appropriate admonition to the jury. I do have serious question as to propriety of the argument made. I deem it unnecessary to approve it in deciding this case. Not only did appellants make no objection to the argument at the time it was made, but the question was first raised by motion for mistrial, after the jury had retired. Even this is not carried into the motion for new trial, so the question is not here for review. McConnell v. State, 227 Ark. 988, 302 S. W. 2d 805; Randall v. State, 239 Ark. 312, 389 S. W. 2d 229.

Conley Byrd, Justice,

dissenting. I dissent only from the affirmance of the conviction of Willie Joe Childs, based on the holding in Miranda v. Arizona, 384 U. S. 436 (1966). At page 471 of the Miranda decision the court said:

“Accordingly we bold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.
“If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney.”

At page 473 the court elucidated further as follows:

“Once warning’s have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the Night to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during’ any subsequent questioning. If the individual cannot obtain an attorney and lie indicates that he wants one before speaking to police, they must respect his decision to remain silent.”

Commencing on page 160 of the transcript, the record shows the following proceedings before the court:

“Q. Did you advise him of his civil rights?
A. Yes, sir, I did.
Q. How did you do that?
A. I advised Childs that he didn’t have to tell me anything unless he had an attorney present—
Q. Did you advise him if he did tell you something that it might be used against him?
A. Yes, sir, I did.
Q. What else did you tell him?
A. I told him if he didn’t have funds for an attorney I would be glad to get him one.
Q.' And what was his reply to these assertions?
MR. HARTJE: Your Honor, I’m going to object to any testimony that he might give in view of the fact that Willie Joe Childs did not have an attorney present at the time of the statement.
MR. McCLINTON: That is not a proper and correct statement of the law, Your Honor.
THE COURT: The objection will be sustained. Go ahead.
MR. McCLINTON: I beg your pardon.
THE COURT: To that portion.
MR. McCLINTON: What portion?
THE COURT: That portion which an attorney was not present at the time. The witness will he advised.
Q. Will you go ahead, Mr. Mitchell, and tell us what further you found through your investigation?
MR. HARTJE: Now, I’m goingto object. The Judge sustained my motion.
THE COURT: As to the objection that there is no attorney present at that time. Let’s go in Chambers.

(The Court, attorneys, and court officials retired to Chambers, where the following things were said and done:)

THE COURT: The rule is when you arrest a man you advise him of his rights and ask him if he wants a lawyer, and if he says he does not — It is not clear here in this case whether he did or didn’t.
MR. McCLINTON: Whether he did or did not say he wanted an attorney.
THE COURT: That’s right.

(The Court, attorneys, and court officials returned to the courtroom, where the following things were said and done in open Court:)

Q. When you asked Willie Joe Childs whether or not he wanted an attorney, what was his reply?
A. He said that he did, and he agreed to go ahead and talk to me.
Q. He agreed to go ahead and talk to you?
A. Yes, sir.
Q. After you asked Mm if lie wanted an attorney and yon advised Mm of Ms other rights yon have outlined?
A. Yes, sir.”

Thereafter, Trooper Mitchell was permitted to testify about his conversation with Willie Joe Childs. Appellant’s objection to Trooper Mitchell’s testimony was renewed as a motion for mistrial. (See pages 166 and 167 of the record.)

Trooper Mitchell did not comply with the Miranda case when he continued the discussion with Childs following Childs’ indication that he did wish an attorney present. Nor can I find anything in the record to show a waiver -within the limits set by the Miranda case. The matter of 'a waiver in such instances is fully discussed in the Miranda case at page 475 as follows:

“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U. S. 478, 490, n. 14. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U. S. 458 (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.
‘ ‘ An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warning's are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U. S. 506, 516 (1962), is applicable here:
‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver.’ ”

Obviously, a person in custody can waive his right to have an attorney present during interrogation. But in view of the strong language quoted above from the Miranda case, I can not find such a waiver in this instance. Instead, it appears that the trooper, after going into the formalities of stating to Childs his constitutional rights, persisted in talking him out of his rights by continuing his interrogation after Childs had made known his desire to have counsel present during the interrogation.

It is true that counsel for appellant Childs did not save his exceptions to the rulings of the trial court, which under our antiquated system, 15 Ark. L. Rev. 69, is considered necessary for review in criminal cases before this court. However, as has been pointed out by the United States Supreme Court in Henry v. Mississippi, 379 U. S. 443 (1965), the procedural failure to save one’s exceptions to a trial court’s ruling on an objection does not necessarily waive one’s federal rights. When we fail to recognize this adjudicated law in cases involving claims of federal rights here, we put this court in the position of having placed its stamp of approval on a conviction that the federal district courts will be required to review on a habeas corpus action.

Under the rulings of Townsend v. Sain, 372 U. S. 293 (1963), and Henry v. Mississippi, supra, courts in habeas corpus actions are directed to disregard procedural defaults which do not affect the substantive rights of the parties. Our failure to recognize United States Supreme Court rulings in such matters puts the federal district judges of our state in the position of writing opinions and fact findings overruling, in effect, opinions by this court. Therefore, I maintain that this court, in ruling on issues which raise federal questions, should treat the issues in the same manner that the federal district court will be required to treat them, so that the federal district judges may rely on the considered opinions which we have given to the same records.

Of course, the illegally obtained evidence from appellant Childs in this case does not affect the convictions of appellants Frankie Bussell Matthews and Tommy Matthews. Wong Sun v. United States, 371 U. S. 477 (1963).

For the reasons, stated, I would reverse and remand for a new trial as to Willie Joe Childs.

Brown, J., joins in dissent.


author: Paul Ward, Justice.

text:
    Augustus Ray STUDDARD v. STATE of Arkansas
    5297
    419 S. W. 2d 134
    Opinion delivered September 25, 1967
    [Rehearing- denied October 30, 1967.]

      Paul K. Roberts, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Paul Ward, Justice.

Appellant, Augustus Ray Studdard, was charged with grand larceny for stealing a Ford pickup truck on December 4, 1966. By agreement, a jury was waived and the case was tried before the presiding judge. Appellant was found guilty and sentenced to serve five years in the State Penitentiary— the last two years being suspended with certain contingencies.

It is not disputed that the truck was taken from its owner, in Hot Springs, in the late afternoon of the 4th and that it was found (almost a complete wreck) near the main highway near Mt. Ida at about midnight of the same day.

In general terms, we here set out briefly below the opposing versions of appellant and the State.

Appellant, who testified at the trial, contends: he met some boys in Hot Springs about seven p.m. on the 4th who said- they were headed for Fort Smith; he decided to go with the boys 'because six boys were after him and he wanted to get out of town, and also because he wanted to see a girl friend; when they went to ¿he car (being driven by the boys) he saw a pickup truck attached to the rear end; on the way to Ft. Smith the boys told him the truck was “hot”; just before they reached Mt. Ida the truck broke loose from the car and ran off the road; then he told the boys he didn’t want to get into trouble, and that he was going^hack to Hot Springs, and; he returned in a car driven by Jerry White at his invitation.

The State, in essence, contends: appellant’s story about the taking and wrecking of the truck is not true; appellant’s own statement to others shows that he took the truck, and; that he was driving it at the time it was wrecked.

On appeal appellant’s only contention for a reversal is that the testimony “is not sufficient to sustain a verdict of guilty. . .”

For reasons hereafter set out, we are unable to agree with appellant’s contention.

Appellant takes the position that he was convicted solely on circumstantial evidence, citing (among other cases) Reed v. State, 97 Ark. 156, 133 S. W. 604; Johnson v. State, 210 Ark. 881, 197 S. W. 2d 936, and; Taylor v. State, 211 Ark. 1014, 204 S. W. 2d 379. In all these cases the convictions were reversed, there being only circumstantial evidence to support the convictions. We agree that, in such cases, the evidence must be strong and convincing — as was well stated in the Taylor case, supra, where we find this statement:

“This demands that, in a case depending upon circumstantial evidence, the circumstances relied upon must be so connected and cogent as to show guilt to a moral certainty and must exclude every other reasonable hypothesis than that of the guilt of the accused. ’ ’

Although, in the case under consideration here, no one saw appellant actually take the truck, we think there is more than circumstantial evidence to support the conviction — as presently pointed out.

(a) Appellant does not deny that he rode back to Hot Springs with Jerry White: White testified as follows :

Q. “Would you tell the court what he had to say?
A. “Well, right after we picked him up he said that he was the driver of the truck and he said he didn’t want to say anything until he got to know us a little hit but being’ we was so nice to him he was going to tell us, he said he thought we ought to know.
Q. “You mean he told you he was the driver of the truck there that had been wrecked?
A. “Yes, sir.”

Again, White testified:

Q. “And he explained to you that after these six boys got after him he had time to go steal a truck, is that right?
A. “If I recollect right he said he had to find a way to get away from them. These boys was wanting to fight him or something there and he was trying- — I didn’t ask him all the details because I didn’t figure it was none of my business.”

Appellant, at the time he was arrested by an officer on his return to Hot Springs, admitted that he picked up the truck “and wrecked it”.

Although this case was tried before the trial court, by agreement, still we must view the sufficiency of the evidence as though it was tried before a jury.

Appellant stresses the fact that, as was admitted by the trial court, there were discrepancies and contradictions in the testimony of some of the State’s witnesses-— such as: White could not remember whether appellant was with, him when he went from the wreck back to Mt. Ida before returning to Hot Springs; "White’s story-differed as to just where he picked up appellant; White was not sure whether the truck was a Gr.M.C. or a Chevrolet; the witnesses did not agree as to the extent of damages to the truck, and; appellant denied he told White he was the driver of the truck when it was wrecked. It is also shown that appellant made contradictory statements as to how he got back to Hot Springs.

In any event, these contradictions in the testimony posed questions of fact for the trial judge (sitting as a jury) to resolve. In our opinion the evidence was sufficient to support the verdict.

Affirmed.


author: Lyle Brown, Justice. Conley Byrd, Justice,

text:
    STATE of Arkansas v. Willie Gene JACKS
    5285
    418 S. W. 2d 622
    Opinion delivered September 25, 1967

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellant.

      John Harris Jones, for appellee.
   Lyle Brown, Justice.

The State, through the attorney general, prosecutes this appeal under the authority of Ark. Stat. Ann. § 43-2720 (Repl. 1964), contending the ruling of the trial court should be corrected to preserve uniformity in the administration of the criminal law. Willie Gene Jacks, defendant below, successfully moved to quash an information charging him with failure to discharge mechanics’ and materialmen’s liens in violation of Ark. Stat. Ann. § 51-640 (Supp. 1965).

Jacks’ motion to the trial court raises two points. First, he contends § 51-640 is unconstitutional in that it attempts to establish a prima facie case of intent to defraud when a contractor fails to discharge a lien within ten days after receipt of payment. Second, after he is alleged to have received the money, Jacks was adjudged a bankrupt by the United States District Court; that adjudication, so Jacks contends, placed Ms person and property within the exclusive jurisdiction of the bankruptcy court. The two contentions must he separately considered.

Prior to 1963, the penalty statute for failing to satisfy the involved liens was controlled by Ark. Stat. Ann. § 51-601 (1947). That section was declared unconstitutional in Peairs v. State, 227 Ark. 230, 297 S. W. 2d 775 (1957). The absence of the requirement that intent to defraud be established in a prosecution was the basis for the holding in Peairs. Apparently for the purpose of filling the void, the Legislature enacted a new penalty statute in 1963, Ask. Stat. Ann. § 51-640 (Supp. 1965). This is the law under which Jacks was charged. It contains the element of “intent to defraud" and in addition contains tMs sentence:

“In any prosecution under this act [§§ 51-640, 51-641] as against the person so receiving payment when it shall be shown in evidence that any lien for labor or materials existed in favor of any mechanic, laborer or materialmen and that such lien has been filed within the time provided by law in the office of the circmt clerk or other officer provided by law for the filing of such liens, and that such contractor, subcontractor or other person charged has received payment without discharging the said lien to the extent of the funds received by him, the fact of acceptance of such payment without having discharged the same lien within ten [10] days after receipt of such payment or the receipt of notice of the existence of such lien, whichever event shall occur last, shall be prima facie evidence of intent to defraud on the part of the person so receiving payment. ’ ’

Appellee asserts that the statutory presumption of intent to defraud is unconstitutional. He cites Bailey v. Alabama, 219 U. S. 219 (1910) and Pollock v. Williams, 322 U. S. 4 (1944). The statute in Bailey was struck down on other grounds. First, it was found to be in violation of the federal anti-peonage statutes. Secondly, Alabama had a rule of evidence that would prohibit Bailey from testifying as to uncommunicated intentions. Combining that rule with the “prima facie evidence rule,” it is readily seen that Bailey’s defense was literally “blocked in.” Finally, it was found to be the fundamental purpose of the Alabama statute “to compel, under the sanction of the criminal law, the enforcement of the contract for personal service. . .” Pollock involved a statute classified by the court as a peonage statute and in the context of the type of legislation the presumption section was held unconstitutional. The court said the presumption in Pollock “in a different context might not be invalid, Indeed, we have sustained the power of the state to enact an almost identical presumption of fraud, but in transactions that did not involve involuntary labor to discharge a debt. James-Dickinson Farm Mortgage Co. v. Harry, 273 U. S. 119.” (1927)

The general rule, well established in many jurisdictions, including the United States Supreme Court, is well stated in O’Neill v. United States, 19 F. 2d 322 (1927):

“The general principle is well recognized that even in criminal prosecutions, Congress or a state Legislature may with certain limitations enact that when certain facts have been proved they shall be prima facie evidence of the existence of the main fact in question. . . The limitations are these: There must be some rational connection between the fact proved and the ultimate fact presumed; the inference of the existence of the ultimate fact from proof of the other fact must not be so unreasonable or unnatural as to be' a purely arbitrary mandate; and the accused must not be deprived of a proper opportunity to present his defense to the main fact so presumed and have the case submitted upon all the evidence to the jury for its decision.”

The case at bar clearly cannot be classified as a peonage statute. It is more comparable to our law making it an offense to execute an overdraft which likewise contains the presumption clause. Ark. Stat. Ann. §§ 67-720-24 (Repl. 1966). This court said in Edens v. State, 235 Ark. 284, 357 S. W. 2d 641 (1962) that the only effect of the presumption clause in § 67-722 is to place the burden on the defendant to go forward with the case. The burden of proof is not shifted.

Further protection is afforded Jacks by the holding-in Reno and Stark v. State, 241 Ark. 127, 406 S. W. 2d 372 (1966), where we held that it is improper .for the trial court to advise the jury of the presumption provision. Reno and Stark involved the charge of failure to discharge materialmen’s liens.

We hold that the presumption clause has a rational connection with the balance of our statutes governing-mechanics’ and materialmen’s liens. It is not arbitrary. The accused is not deprived of opportunity to present his defense on the main fact. The presumption of innocence remains with the accused and the burden of proof on the whole case is in the State. The accused is merely required to go forward with his proof when the lien is established, payment is proven, and the failure to satisfy the lien is shown.

We can quickly dispose of the argument that if one violates a state law of this nature and before prosecution is adjudged a bankrupt, he gains immunity from the violation. That is the substance of the second point raised by Jacks. If a contractor receives payment which under valid legislation is required to be used to discharge lawful liens, but instead, misappropriates the payment with criminal intent, he is subject to prosecution. The federal bankruptcy law is a civil proceeding enacted for the relief of persons financially distressed and certainly does not purport to pre-empt our state penal statutes.

Reversed and remanded.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. It is my position that the prima facie presumption of intent to defraud in Ark. Stat. Ann. § 51-640 (Supp. 1965) is invalid; and that, because of the manner in which the statute is drawn, the invalid sentence containing the prima facie presumption cannot be picked from between the violation sentence and the penalty sentence without destroying the whole section, which was enacted as one paragraph. Section 51-640 provides:

“It shall he unlawful for any contractor . . . who has performed work . . . for the improvement of any property where such work or materials may give rise to . . . materialman’s liens . . . knowingly to receive payment of the contract price . . . without applying the money so received to the discharge of any such liens known to the person receiving such payment . . . with the intent thereby to deprive the . . . person so paying the said contractor ... of his funds without discharging the said liens and thereby to defraud the said owner or person so paying. In any prosecution ... as against the person so receiving payment when it shall he shown . . . that any lien for materials existed in favor of any . . . ma-terialmen and that such lien has been filed within the time provided by law . . . and that such contractor has received payment without discharging the said lien to the extent of the funds received by him, the fact of acceptance of such payment without having discharged the same lien within ten (10) days after receipt of such payment or the receipt of notice of the existence of such lien . . . shall be prima fgcie evidence of intent to defraud on the part of the person so receiving payment. If the amount . . . shall exceed . . . ($25.00) the party so receiving shall be deemed guilty of a felony. . . If the amount so received does not exceed . . . ($25.00) the party shall be deemed guilty of a misdemeanor. . .” (Emphasis supplied.)

The above section must be construed together with Ark. Stat. Ann. 51-601 (1947) and 51-613 (Supp. 1965). The first section (51-601) gives a lien to any mechanic or materialman furnishing labor or materials for any improvement upon land, and by its very terms extends to suppliers of materials furnished by subcontractors. The second section (51-613) gives the materialman 120 days from the date the material is furnished in which to file a lien. We have construed this 120 days to apply from the date the last item in a running-account was furnished. Kizer Lbr. Co. v. Mosley, 56 Ark. 516, 20 S. W. 409 (1892) and Streuli v. Wallin-Dickey & Rich Lbr. Co., 227 Ark. 885, 302 S. W. 2d 522 (1957).

The statute under which appellee was here charged makes it an offense not to receive money but to fail to discharge known liens after he has received the money under his building contract, with intent ti defraud the owner. This same statute provides (and as interpreted by the majority) that when the prosecution has shown the contractor’s receipt of the payment and his failure to discharge the materialman’s lien within ten days after receipt of notice of its existence, a prima facie presumption arises that the contractor intended to defraud the owner so making the payment. If the presumption arose only as to the liens of which the contractor had knowledge at the time he received the funds, I would agree with the majority that there was a rational connection with the balance of the statutes governing mechanics’ and materialmen’s liens. But the prima facie presumption is not so limited — it permits a conviction upon the contractor’s failure to discharge a lien within ten days after he has notice of its existence. In this situation it permits a conviction where proof of guilt is lacking. Pollock v. Williams, 322 U. S. 4, 15 (1955).

That the presumption here created permits a conviction without proof can be more clearly seen by a look at the manner in which buildings are constructed. This is the age of specialization and home building contractors, like others, have had to take advantage of such specialization. Today’s home building contractor seldom does any direct physical labor in house construction. Usually he subcontracts the cement work (the foundation and sometimes the floor if the house is placed on a slab) ; the framing; the roofing; the plumbing; the electrical work; the heating and air conditioning; the sheet rock; the painting; the flooring; and the landscaping. Since Arkansas laws furnish no provision for advance notice by laborers and materialmen claiming liens, the contractor, in paying subcontractors, has to rely almost entirely on the integrity of the many small businessmen with whom he deals. Obviously a contractor does not expect to make a living from only one building; therefore, he builds a number of homes during a year. Because the materialman’s lien exists in secret for 120 days, the contractor must to some extent rely on the subcontractors’ assertions that their bills have been paid. There is no practical way for the contractor to know about the existence of such a lien until it is filed. Often he finds that he has paid the same subcontractor for work on subsequent building jobs before discovering that the subcontractor has neglected to pay his suppliers on a prior job. Thus it is seen that under the interpretation given to the prima facie presumption sentence in the statute, it is entirely possible to send a building contractor to jail, not upon proof that he defrauded the owner for whom he constructed a building, but because he was unable to pay his debts. This to me constitutes an imprisonment for debt contrary to our constitution, Peairs v. State, 227 Ark. 230, 297 S. W. 2d 775 (1957). I fail to see the rational connection in this case between the presumption and the balance of the statutes governing mechanics’ liens, which exists in the “hot check” statute, where the offense is complete upon the giving of the check. Here the offense is not complete until the contractor has failed to pay the lien within ten days after receipt of notice of the lien, even though he did not know of its existence until 100 days after receipt of the money.

Furthermore, because of the 120 days given to ma-terialmen to file liens, an owner can harass a building contractor by prosecution under the statute for his failure to discharge such a lien before taking bankruptcy; and can stand aloof from a suit for malicious prosecution by asserting that all he knew was that he had paid the contractor and the latter had not discharged the lien within the ten days allowed by the statute.

Nor can I agree with the majority opinion that the federal bankruptcy act does not purport to pre-empt our state penal statutes. If the sentence containing the prima facie presumption is continued in the statute as being valid, then it would appear that a contractor, irrespective of his conduct, would not be violating the statute if he could within ten days after knowledge of a lien get enough money to pay the materialman’s lien. In this situation the threat of prosecution would exist if he took bankruptcy at any time before the time for filing ma-terialmen’s liens expired, because the effect of bankruptcy is to give the bankruptcy court complete control of all the bankrupt’s assets — thereby making it impossible for him to comply with the terms of the penal statute. Thus the statute in effect threatens the contractor with prosecution if he takes bankruptcy at any time after receiving the money and before any liens are discharged, irrespective of his knowledge of such liens. Certainly a state statute making it a criminal offense to exercise a right given by a federal statute as directed by the IJnitecL States Constitution is invalid.

Therefore, I would affirm the trial court.


text:
    Curtis L. HAYNIE v. CITY OF LITTLE ROCK, Arkansas et al
    5-4264
    418 S. W. 2d 633
    Opinion delivered September 25, 1967

      Lesley W. Mattingly, for appellant.

      Joe Kemp, Little Rock City Attorney; Perry V. Whitmore, Asst. City Atty., for appellees.
   John A. Fogleman, Justice.

This appeal questions the correctness of a decree dismissing the complaint of appellant, a captain in the Little Bock Fire Department, against the City of Little Bock and its Mayor and Board of Directors. Appellant had sought to enjoin appellees from granting promotions and increases in salaries under what is sometimes called a “merit system”. He further asked that they be directed to increase his salary to the top pay provided for captains in the Little. Bock Fire Department and for judgment for $630.00 for the difference in his salary and that top pay since the time he claims to have become entitled to it.

Captain Haynie was promoted to that rank on March 25, 1964, after having passed the required civil service examination. His salary after promotion was $425.00 per month. Some other captains were being paid $445.00 per month at that time. Subsequently his pay increased in two stages until, it reached $485.00 per month while the pay of other captains was raised to $510.00 per month.

Pay increases are given in the fire department under what the city refers to as a “pay classification schedule”. The schedule next preceding the filing of this case was adopted August , 1966. Each position in the fire department carried a “class number”, a “class title”, a “range number” and “monthly pay range”. Each job “class title” for all employees of the city carried six steps within the pay range — “A” to “F”. Under the class title, “Fire Captain”, the “pay range” was from $425.00 per month to $535.00 per month. The district fire chief “pay range” was from $485.00 per month to $610.00 per month.

On May 1, 1966 the pay of eight captains, some of whom had been promoted to the rank subsequent to appellant’s promotion, was advanced to the top “monthly pay grade” for captains. All of these men, including appellant, were at all times receiving a salary set forth in a current schedule of “monthly pay ranges”. No captain was paid more than the maximum or less than the minimum “monthly pay range” currently shown for the job class title. None of the salary advances mentioned, except for original promotion, was given following, or on the basis of, a competitive civil service examination. The increases in pay were given the other eight captains upon the recommendation of their superiors only.

The city contends that these pay scales were established and the increases given pursuant to its Ordinance No. 10,881 approved December 15, 1958, adopting a position classification and pay plan for the City of Little Rock. This ordinance required a grouping into classes of positions of approximately equal difficulty and responsibility, which required the same general qualifications and which could be equitably compensated “within the same range of pay under comparable working conditions”. It also required an identifying class title description of the work of the class. It was specified that titles used to indicate authority, status in the organization, or “administrative rank” might continue to be used for such purposes. The classification plan is to be used as a basis for giving examinations, fines (lines) of promotion, and determining salaries for various types of work. The city manager is made responsible for preparation and maintenance of the classification plan, with authority to amend and revise, with approval of the Civil Service Commission for civil service positions. A schedule of standard salary ranges, to be changed only by the Board of Directors of the City, prescribed fifty pay range numbers. Then an official salary plan was adopted and each job or “class title” was given a class number and a pay “range number”. Between that time and the institution of this action, the class title “Fire Captain” was advanced from “pay range” 21 to “pay range” 26 and “District fire Chiefs” from “range” 24 to “range” 29. Since § 2 of the ordinance is particularly pertinent here, we quote it in full:

“COMPOSITION OF THE CLASSIFICATION PLAN: The classification plan consists of:
A. A grouping into classes of positions which are approximately equal difficulty and responsibility, which require the same general qualifications, and which can be equitably compensated within the same range of pay under comparable working conditions.
B. A class title, descriptive of the work of the class, which identifies each class.
C. Written class specifications for each class of position, containing a description of the nature of the work and of the responsibility of the positions in the class, examples of work which are illustrative of duties of positions assigned to the class, requirements of work in terms of knowledges, abilities, and skills necessary for performance of the work, a statement of experience and training desirable for recruitment into the class, and, in certain cases, necessary special qualifications.”

It is the contention of appellant that this ordinance and plan, as applied to his “class title”, is in violation of the civil service laws of Arkansas. The increase of the salaries of the eight captains in the same pay grade within the designated pay range without civil service examination is the particular application to which he objects. It is his contention that Ark. Stat. Ann. § 19-1603 (Supp. 1965) prohibits this practice as a promotion. This is § 3 of Act 28 of 1923, our basic civil service law for first class cities. The section required each board of civil service commissioners to prescribe and enforce rules and regulations governing fire departments. One of the statutory requirements is that the rules shall provide:

“9th. For promotion based upon open competitive examinations of efficiency, character and conduct, lists shall be created for each rank of service and promotions made therefrom as provided herein, and advancement in rank or increase in salary beyond •the limits fixed for the grade by the rules of said commission shall constitute a promotion.”

The rules and regulations adopted by the board of civil service commissioners of Little Rock require open competitive examinations twice a year for creation of lists of those eligible for employment or promotion “for each rank” in the fire department. (Art. II, § 1) The use of the word “rank” in other sections of the regulations makes the conclusion that the board considered the job “class titles” as “ranks” inescapable. For example:

1. In speaking of eligibility to take examination for advancement-from a “lower to a higher rank”, an applicant must have “served at least one year in the next lower rank’’ and have “a good record in the lower ranks in which he has served”. (Art. II, § 5)
2. A probationary period is provided after each promotion during which the probationer may be “reduced to his former rank”. (Art. II, § 8)
3. For the purpose of determining eligibility to take examinations for promotion, it is specifically provided that all “holding the rank of captain shall be eligible to take the examination for promotion to assistant chief,” all “holding the rank of junior captain” to “the rank of captain”, and “all hosemen, laddermen and drivers”, to “the rank of lieutenant.” (Art. II, § 14)
4. In establishing a “Bureau of Efficiency” it is required that it be composed of members of the department with the ‘‘rank of captain or with a higher rank”. (Art. IV, § 3)
5. Discharge or reduction “in rank or compensation” is prohibited without a trial procedure. (Art. V) [Emphasis ours]

Appellant first contends that an increase in pay within a pay range is an advancement in rank under § 19-1603, requiring an examination. As a basis for this contention, he asserts that the word “in” should be construed to mean “within”. "We do not agree. We take it to be the intention of this section of the statute to define what constitutes a promotion. If appellant’s construction were used, “promotion” would not include an elevation from one rank to another and competitive examination would not be required by the Act. The expressions “in regard to”, “respecting”, “with respect to”, “as to”, are also synonyomus with the word “in”. See Rodale’s “The Synonym Finder”. The words “advancement in rank” then should denote an advance with respect to rank, or from a lower rank to a higher one. This is a common-sense construction and in keeping with the intention of the Civil Service Act.

Appellant’s next contention is that the eight other captains had received an “increase in salary beyond the limit fixed for the grade by the rules of the commission” in violation of Ark. Stat. Ann. § 19-1603. He argues that the quoted paragraph from § 19-1603 should be interpreted to mean that salary increases from one step to another within a pay range constitute a promotion and require competitive civil service examinations. This assumes that the words “the grade” in that section mean a “grade” or pay “step” within the pay range for the particular job “class title” which really designates the competitive class. On the other hand, the city and the lower court have construed the word ‘ ‘ grade ” to be synonymous with the word “rank” in the same section of the Act. We agree with the latter construction. We do not find the word used in any other place in Act 28 of 1933. We do find the words “rank” and “position” used in other parts of the Act. The word “grade” is synonymous with “rank”. Rodale’s “The Synonym Finder”. It appears that the drafter of the Act must have used the word “grade” to avoid repetitious use of the word “rank” in the same sentence for there is nothing else in the Act to which the former could relate or he related. Courts of other jurisdictions having similar language in civil service laws have held that an increase in salary does not constitute a promotion unless the resulting salary is beyond the limits fixed for the grade in which the office or position is classified. People v. Tully, 47 Misc. Rep. 275, 95 N.Y.S. 916; Stohl v. Horstman, 64 Cal. App. 2d 316, 148 P. 2d 697. It has also been said that an increase in salary is not a promotion where no top salary limit has been fixed. Mandle v. Brown, 5 N. Y. 2d 51, 152 N. E. 2d 511. We hold this rule to be sound and applicable here.

In this connection, appellant asserts a violation of the quoted paragraph of § 19-1603 in that the compensation rates and ranges for the Fire Department have been fixed by the Board of Directors of the City and not by the Board of Civil Service Commissioners. Section 19-1617 (§ 17 of Act 28 of 1933) states that the City Council or Board of Commissioners shall from time to time fix the number of employees and the :salaries to be drawn by each rank in the fire departments of their respective cities. Under Little Rock’s “city manager” form of government, all the powers and duties (except executive powers) of the Mayor and City Council under the “council” form were vested in the Board of Directors. Consequently, the Board of Civil Service Commissioners did not abdicate any authority when it stated that fixing the number of employees and the salaries to be drawn by each rank was the duty of the Board of Directors. (Art. II, § 16)

The propriety of a pay range within a rank is also in question. Under similar civil service laws, the courts of California have said that it is well settled, where a city council is empowered to fix salaries, reasonable variations therein for persons holding the same rank will be upheld. See, e. g., Banks v. Civil Service Comm., 10 Cal. 2d 435, 74 P. 2d 741; Stohl v. Horstmann, 64 Cal. App. 2d 316, 148 P. 2d 697. The courts of New York have recognized ranges of salaries for a rank with a “pay grade”. Beggs v. Kern, 284 N. Y. 504, 32 N. E. 2d 529.

If there is an inequity in the Little Rock “merit system” as provided for in the ordinance above referred to, appellant’s complaint shonld be addressed to the city officials or the general assembly. The wisdom of the policy adopted is not a judicial problem.

The judgment is affirmed.

Byrd, J., disqualified and not participating.

      In some places in the record the number is given as nine. Since the actual number is immaterial, we will continue to refer to the number as eight.


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

text:
    Johh RHODES and Patricia DRENNAN v. CITY OF LITTLE ROCK
    5281
    418 S. W. 2d 783
    Opinion delivered September 25, 1967

      John W. Walker, for appellant.
    Joe Kemp, Little Rock City Attorney; Perry V. Whitmore, Asst. City Atty., for appellee.
   Conley Byrd, Justice.

Appellants John Rhodes and Patricia Drennan were convicted under § 25-121 of the Little Rock Code of Ordinances. They were arrested by two officers at the residence of appellant Rhodes. The officers, by the process of shining a flashlight through a Venetian blind covering a window, had observed them in bed in a state of undress. There is no contention that the garage apartment where appellants were arrested constitutes a “public place.”

The ordinance under which appellants were convicted provides as follows:

“It is hereby declared to be a misdemeanor for any person to participate in any public place in an obscene or lascivious conduct, or to engage in any conduct calculated or inclined to promote or encourage immorality, or to invite or entice any person or persons upon any street, alley, road or public place, park or square in Little Rock, to accompany, go with or follow him or her to any place for immoral purposes, and it shall be unlawful for any person to invite, entice, or address any person from any door, window, porch or portico of any house or building, to enter any house or go with, accompany or follow him or her to any place whatever for immoral purposes.
“The term ‘public place’ is defined to mean any place in which the public as a class is invited, al-allowed or permitted to enter, and includes the public streets, alleys, sidewalks and thoroughfares, as well as theaters, restaurants, hotels, as well as other places. The term ‘public place’ is to be interpreted liberally.
“Any person found guilty of violating the provisions of this section shall, upon conviction, be fined in any sum not less than ten dollars, nor more than two hundred and fifty dollars, or imprisoned for not less than five days nor more than thirty days, or both fined and imprisoned.”

For reversal, appellants, in addition to a number of constitutional grounds, contend that the evidence was insufficient to sustain conviction under the ordinance in the absence of a showing that they participated in their activities in a “public place.”

The City of Little Rock, on the other hand, takes the position that the ordinance stamps as illegal four separate and distinct courses of conduct, and that the common denominator throughout the ordinance is conduct which has as its purpose unacceptable sexual behavior.

Only when the first paragraph of the ordinance is read in its entirety can it be observed that.the conduct therein described is limited to unacceptable sexual behavior. Otherwise, if we accept each phrase as a separate standard, we are left to the dictionary definitions of the words “immoral” and “immorality.” Some of the definitions given for these words in Webster’s Third Edition cover a multitude of sins not necessarily connected with sexual behavior. Therefore, in accordance with our rule of strict construction of penal statutes, we hold that the ordinance condemns the conduct therein described only when it occurs in a public place.

Reversed and dismissed.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I cannot subscribe to the construction given the ordinance by the majority. To me it is clear beyond doubt that the ordinance condemns four distinct courses of conduct, two of which are misdemeanors only when committed in a public place and the others an offense wherever committed. Persons are prohibited:

1. “to participate in any public place in any obscene or lascivious conduct”
2. “to engage in any conduct calculated or inclined to promote or encourage immorality”
3. “to invite or entice any person or persons upon any street, alley, road, or public place, parJc or square in Little Rock, to accompany, go with or follow him or her to any place for immoral purposes”
4. “to invite, entice or address any person from any door, window, porch or portico of any house or building, to enter any house or go with, accompany or follow him or her to any place for immoral purposes.” [Emphasis ours]

Appellants were clearly convicted for violation of the second prohibition.

The majority justify their action by saying that any other construction than that given by them would require resort to a dictionary for definition. I cannot see how their construction changes the situation, nor do I see how resort to a dictionary is either objectionable or unusual in determining the meaning of criminal statutes. Resort to the dictionary for this definition is no less required under their construction. I find no difficulty in finding the appropriate definition for this word in this ordinance.

To me, the conclusion that the city council deliberately omitted to require that the acts condemned in the second and fourth alternates must have been in a public place in order to constitute an offense seems inescapable. In order to reach this result, the majority must add the words “in a public place” to this clause. This cannot be arbitrarily done by the court merely to give the effect we might think the lawmakers might have intended. Snowden v. Thompson, 106 Ark. 517, 153 S.W. 823. Words may not be inserted if the ordinance is intelligible without them. 2 Horack’s Sutherland Statutory Construction, 3d Ed. 457, § 4924; 82 C.J.S. 689, Statutes, § 344; 50 Am. Jur. 221, Statutes, § 234. Since words regarding public places are stated clearly in the first and third clauses, but not the second and fourth, the view that their omission was intentional is substantiated. Where the legislative intent is clear from the words used, there is no room for construction, and no excuse for adding to or changing the meaning of the language employed. Berry v. Sale, 184 Ark. 655, 43 S. W. 2d 225; Call v. Wharton, 204 Ark. 544, 162 S. W. 2d 916. The rule which should be applied here is aptly stated in McCaa Chevrolet Co. v. Bounds, 207 Ark. 1043, 183 S. W. 2d 932, where it was said:

“ * * * Courts may only interpret and enforce laws as they are enacted by the legislative branch. And, in construing x law, a court is not at liberty to read something into the law that was not put therein by its framers, even if such a course may seem necessary in order to prevent an apparently unjust result in the case being considered.”

If it could be said that there was any ambiguity whatever about the intention of the lawmakers in this regard, then the qualifying words are to be applied only to the words or phrase immediately preceding and are not to be extended to following words or those more remote. 2 Horack’s Sutherland Statutory Construction 448, § 4921; 82 C.J.S. 671, Statutes, § 334; 50 Am. Jur. 258, Statutes, § 268.

Nor do I see any difficulty in arriving at the meaning of the word “immorality” in the ordinance. “Immorality” is, specifically, “unchastity”. Webster’s New International Dictionary, 2d Ed. “Unchastity” means “quality or state of being unchaste, lewdness, incontinence”. Webster’s 2d. Among the synonyms for “immorality” are “sexual impurity”, “unchastity”, “lewdness”, “lasciviousness”, “sexual promiscuity”, “act of lust, rape, fornication, adultery, indecency”. Ro-dale’s, The Synonym Finder. In the context of this ordinance there is no doubt but what the word relates only to improper sexual relations. Certainly a man and a •woman, each married to another, occupying the same bed in a state of at least partial undress were engaging in conduct calculated or inclined to promote or encourage unchastity.

In order to arrive at the meaning of a word, if it is susceptible of more than one definition, we must consider the connection and context in which it is used and the evident purpose of the lawmakers. Rose v. W. B. Worthen Co., 186 Ark. 205, 53 S. W. 2d 15, 85 ALR 212; McClure v. McClure, 205 Ark. 1032, 172 S. W. 2d 243. A reading of this ordinance will eliminate any possible doubt that this definition was intended.

The meaning of this ordinance is certainly no more vague or indefinite than 41-3202 and 41-3203, Ark. Stat. Ann. (Repl. 1964) sustained against a charge of indefiniteness in Dillard v. State, 226 Ark. 720, 293 S. W. 2d 697. This statute prohibited, among other things, one from entering or remaining in any house, place, building, tourist camp, or other structure for the purpose of prostitution, lewdness, or assignation. “Lewdness” was defined in the act to include any indecent or obscene act. The court quoted one dictionary definition of “indecent” as “morally offensive”. There the acts held to constitute the offense consisted of appellant’s registering at a tourist court under a fictitious name and address, registering the woman accompanying him as his wife when she was not, and staying in the cabin alone for the remainder of the night.

The correctness of this construction of this ordinance, as to the meaning of the word “immorality”, is further indicated by an examination of the city’s authority to legislate. No other definition would properly fit into the municipal lawmaking authority. If there is any question about the construction of this ordinance, then it is our duty to give it a constitutionally valid construction as opposed to a possible construction constitutionally invalid. On this subject this court, in State v. Moore, 76 Ark. 197, 88 S. W. 881, 70 L.R.A. 671, quoted from Cooley’s Constitutional Limitations as follows:

"* * * i0f the court to uphold a statute when the conflict between it and the Constitution is not clear, and the implication which must always exist that no violation has been intended by the Legislature, may require it in some eases, where the meaning of the Constitution is not in doubt, to lean in favor of such a construction of the statute as might not at first view seem most obvious and natural. For as a conflict between the statute and the Constitution is not to be implied, it would seem to follow where the meaning of the Constitution is clear, that the court, if possible, must give the statute such a construction as will enable it to have effect. ’ The same presumption is indulged in favor of the legislative enactment with reference to the form of the statute and the constitutional prerequisites and conditions as to the subject-matter of the legislation.”

The only power of the city to legislate in this field is to adopt such ordinances as shall be necessary for the suppressing of indecent and disorderly conduct. Ark. Stat. Ann. § 19-2401 (Repl. 1956). This same section of the statute includes the general power of the city legislative body to adopt such ordinances as to them seem necessary to improve the morals, order, comfort and convenience of the city and its inhabitants. If the ordinance were to be given a wider scope than this, it would be. invalid. Legislative language will be interpreted on the assumption that the legislative body was aware of existing statutes, the rules of statutory construction and judicial decisions. 2 Horack’s Sutherland Statutory Construction 327, § 4510. We should construe the ordinance to be valid if we can and this requires the construction I propose.

Appellants also raise the question of the validity of their arrest, it not having been based upon a warrant. The disputed question is whether, under the circumstances, a misdemeanor was committed in the presence of the officers, since whatever they saw was observed while they were on private property on which a garage apartment then occupied by appellants was located. It is undisputed that the officers went there on the basis of a report only. While an unauthorized arrest is at the peril of the officer making it, there is no basis for the dismissal of the charge because of it. Perkins v. City of Little Rock, 232 Ark. 739, 339 S. W. 2d 859. Although it is speculated in the cited case that incriminating evidence obtained as a result of such arrest might be suppressed, here there was no motion to suppress the evidence nor was any objection made to the testimony of the officers as to what they saw at the time of the arrest. The only time that any question as to the admissibility of this testimony was raised was on a preliminary motion to dismiss the charges and in a motion for new trial. The necessity of an objection to preserve a point for review in this court has been stated by this court many times See Randall v. State, 239 Ark. 312, 389 S. W. 2d 229. Any other rule would permit an accused to withhold objection for tactical reasons, speculating on a favorable jury verdict and subsequently raise the question in seeking a new trial.

The wisdom and appropriateness of this provision in this ordinance is a legislative question, not a judicial one.

I would affirm the judgment of the lower court.

      The record discloses no objection to the action of the court overruling this motion. No objection is pointed out in appellants’ brief to either the overruling of the motion or the introduction of testimony.