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

text:
    Merna W. GIBSON and Cecil L. GIBSON v. Larry BOLING, Special Administrator
    81-50
    622 S.W. 2d 180
    Supreme Court of Arkansas
    Opinion delivered October 12, 1981
    [Rehearing denied November 9, 1981.]

      Davis, Bassett, Cox ¿r Wright, by: Tilden P. Wright, HI; and Oscar Fendler, for appellants.

      Bradley ér Coleman, by: Douglas Bradley, for appellee.
   John I. Purtle, Justice.

This is the second appeal from the Chancery and Probate Courts of Craighead County in the matter of the estate of Herman Gibson, deceased. We reversed the first case and remanded for a new trial. See Boling, Special Administrator v. Gibson, 266 Ark. 310, 584 S.W. 2d 14 (1979). The trial court, in the present case, held the disputed Certificates of Deposit were a part of the estate of the decedent and the widow was entitled to take a dower interest since she had elected to take against the will.

Appellants, sons of the decedent, make several arguments for reversal and each point will be set out separately below. We do not find reversible error and affirm the trial court.

Herman and Nora Gibson had been married more than 20 years at the time of his death of October 12, 1976. The present contest is between the decedent’s two sons by a prior marriage, Mema W. Gibson (known as Wayne Gibson) and Cecil L. Gibson, and the only child of Nora Gibson, Donald Ray King. Donald King was the son of Nora Gibson by a prior marriage. The widow died between the first and second trial. The CDs were purchased by Herman Gibson during his marriage to Nora and were issued to Herman Gibson or Mema W. Gibson or Cecil L. Gibson. None of the various issuing banks required the purchaser to designate the payees or owners in writing or to execute the signature card or any other written document in connection with the CDs. Neither is there any evidence that the decedent sought to execute any such authorization in writing.

On July 28, 1976, Herman Gibson, along with his son, Wayne Gibson, went to the lockbox at the First National Bank and Trust Company of Jonesboro and withdrew the CDs. The lockbox at the First National was in the name of Herman Gibson and Nora Gibson. After the CDs were taken from the lockbox at the First National the decedent handed them to his son Wayne and told him the CDs now belonged to Wayne and his brother Cecil. The father accompanied the son across the street to the Citizens Bank where the son went into the area of the lockboxes and rented a box at the Citizens Bank, and signed the signature card after his name only was typed on the card. The father did not accompany the son into the area where the boxes were rented. Wayne took both keys to the box at the time he rented it. There is no evidence that he ever furnished Herman Gibson a key, and the box was not entered until October 15, 1976, three days after the death of Herman Gibson.

The will of Herman Gibson was admitted to probate; and, when the inventory was filed, it did not disclose the 3100,000 in CDs which are the subject of this lawsuit. The widow, Nora, filed suit in the chancery court to determine the ownership of the CDs. At the first trial the chancellor held the CDs were an inter vivos gift to Wayne and Cecil Gibson. Upon remand, the chancellor (not the same chancellor as heard the first case) held that the CDs were part of the Herman Gibson estate because there was no valid inter vivos gift.

There is no dispute over the fact that Wayne Gibson took possession of the CDs on July 28, 1976, and that he placed them in a box he had rented. However, subsequent to the time Wayne Gibson rented the box and took a receipt, which had been lost, H. Gibson’s signature appeared on the card for Wayne Gibson’s lockbox at the Citizens Bank although his name was never typed on the card. The manner in which H. Gibson’s name was added to the card is highly disputed. Wayne states he never authorized the addition of any other name to the card. He steadfastly maintains he rented the box in his own name and in his own right and that his father never had authority to enter the box nor did he have a key. Contradicting this testimony is that of the vault attendant, Christabel Elliott, who testified she rented the box to Wayne Gibson and that on the same date Wayne told her his father would be in later to sign the card. This testimony became so highly controversial that at the first trial one of appellants’ solicitors resigned and testified that he was present when Ms. Elliott stated she did not know how the name “H. Gibson” became affixed to the card. The solicitor testified that Ms. Elliott stated it must have been the girl who relieved her that caused the name to be added. This testimony by the solicitor resulted in a remand for a new trial. The solicitor’s partner had remained in the proceeding, and it was upon these grounds the case was remanded. The Gibson brothers both confirmed the testimony of solicitor Moore. At the trial Ms. Elliott testified that Wayne Gibson stated that his father would be in later to sign the card. She also testified that H. Gibson came in a few days later, identified himself, and told her his son Wayne had rented a box and wanted him to come by and sign the card. She said she permitted him to do so as it was in keeping with Wayne Gibson’s instruction at the time he rented the box. She further stated that H. Gibson explained to her that he did not yet have a key to the box but that he would be transferring some things over from the First National at a later date. However, the box was not entered by anyone until after the death of H. Gibson.

The card for the box at Citizens Bank revealed the signature of “H. Gibson” to be genuine. This signature was added after the initial transaction. The receipt issued to Wayne after Herman’s death listed the holder of the box as “Gibson, Wayne or H.” Cecil Gibson’s name was typed on the card and he signed it on October 15, 1976, subsequent to the death of H. Gibson. Between July 28, 1976, and October 12, 1976, several interest checks on the CDs were mailed to Herman Gibson. The interest payments were payable in the same order as were the CDs. It is not disputed that Herman Gibson cashed the checks and used the proceeds. On remand, a new trial was held in probate and chancery courts based primarily on the record of the previous trial. At the beginning of the second trial the court stated:

At this time, with agreement of counsel for all parties, the Court will try this matter upon the transcript of the record in the Chancery Court of Craighead County, Western District, Cause No. E-77-228, which was consolidated with and tried at the same time with Probate Cause in the Probate Court of the Western District of Craighead County, being P-76-190, and was appealed as Cause No. 78-146, Boling vs. Gibson, in the Supreme Court of Arkansas. Now, the Court will disregard all of the material in the record which is irrelevant, immaterial, incompetent and has now been abandoned. As the Court understands it, the real issues are the question of ownership of eight (8) Certificates of Deposit, which total $108,038.14. Either side may introduce any additional testimony or evidence, together with the previous transcript, will constitute the record of this cause for appeal. Does that give you an opportunity, Mr. Bradley, to do whatever you desire to complete a record?

After moving that certain exhibits introduced at the first trial be excluded, the appellants’ solicitor elicited testimony from the former solicitors for the Gibson brothers. The testimony of solicitor Moore was essentially the same as it had been at the first trial. His testimony was directed at discrediting the testimony of Christabel Elliott. He testified as to the contradictions made about the opening of the lockbox at Citizens Bank by Wayne Gibson. Solicitor Michael Gibson testified not only to the testimony previously discussed relating to the contradictory statement of Christabel Elliott but also that he had written the will for his grandfather, Herman Gibson, and proffered testimony that he had instructed his grandfather on how to handle the CDs.

After the briefs were filed each of the solicitors moved to strike parts of the other party’s abstract and brief. We recognize that this case was a heated case all the way through. In fact, it has been to this court, in one form or another, at least three times prior to this appeal. We grant appellants’ request to strike that portion of the appellee’s brief which implies that the former solicitors for the appellants were dishonest and committed what amounted to subornation of perjury. We think solicitor for appellee went entirely too far in this respect. However, we do not strike the other portions of the record requested to be stricken by the appellants but consider them only if relevant. This should not occur again. Furthermore, the appellants’ statement of the case was entirely too long and somewhat argumentative; however, we do not resort to the extreme remedy of striking the brief, pursuant to Rule 9 (e) (2), Rules of Supreme Court.

We think it appropriate to briefly discuss Ark. Stat. Ann. § 67-552 (Repl. 1980) at this point in the opinion. This statute deals with certificates of deposit issued in two or more names. Section (a) of the above-quoted statute requires the person opening such account to make a designation in writing to the banking institution concerning the certificate to be held in “joint tenancy” or in “joint tenancy with right of survivorship” or other similar language. It further provides that if such designation is made in writing, the survivor or survivors of the depositor shall be the lawful owners. This authorization made at a bank is commonly referred to as a will substitute. In the present case there was no designation in writing by Herman Gibson. Section (e) of the statute states that if a person holding a certificate of deposit shall file with the bank a designation that on death the certificate shall be paid or held by another person, the bank shall be obligated to pay the proceeds to the survivor or deliver the certificate in lieu thereof. It is clear from the act and we have held that the depositor must designate the survivor in a separate writing, other than as payee, if the transaction is to be treated as one of joint tenancy with right of survivorship. Cook v. Bevill, 246 Ark. 805, 440 S.W. 2d 570 (1969); Willey, Adm’r. v. Murphy, 247 Ark. 839, 448 S.W. 2d 341 (1969). There must be at least substantial compliance with the designation in writing. Carlton, Adm’r. v. Baker, 267 Ark. 949, 591 S.W. 2d 696 (Ark. App. 1979). Therefore, if a purchaser desires a certificate of deposit be payabe to the named joint survivor, either he or his agent must so designate in writing at purchase or at a later date. All of the cases which have caused the problem have resulted from the failure of the purchaser or depositor to comply with the designation in writing provision of Ark. Stat. Ann. § 67-552 which is applicable to banks and Ark. Stat. Ann. § 67-1838 (Repl. 1980) which is applicable to savings and loan institutions.

Before entering into a point by point discussion we state that the law of the case is controlling. In the first decision in this matter we stated that appellants:

... had the burden of showing, by clear and convincing evidence, that these certificates were delivered to them by their father with the clear intent to make an immediate, present, final gift beyond recall, releasing all future dominion and control. It must have been the intention of the donor that title pass immediately, and a delivery for safekeeping or for any purpose, either express or implied, other than a specific intent to part with all right, title and interest in, and all dominion and control over the certificates would not constitute a gift.

The case was remanded for a new trial. Therefore, the parties were free to present any admissible evidence they desired at the second trial. We now take up the arguments of the appellants.

I.

APPELLANTS CONTEND THEY MET THE BURDEN OF PROOF TO SHOW THE CERTIFICATES OF DEPOSIT CONSTITUTED A VALID AND COMPLETE INTER VIVOS GIFT FROM THEIR FATHER.

We stated earlier that the first decision, Boling v. Gibson, supra, was the law of the case. There we held that on retrial the standard of proof required of appellants was that clear and convincing evidence must be produced in order to show that the father released all control of the certificates. The standard at trial is “clear and convincing” but the standard for review is “clearly erroneous.” Therefore, before we reverse a chancellor or probate judge we must find that his decision was clearly erroneous. We note that the law of the case is not different from the precedent in other similar cases.

In the present case there is no argument that the CDs were issued to joint tenants with right of survivorship in substantial compliance with Ark. Stat. Ann. § 67-552. The contention is rather that there was a completed inter vivos gift. We stated in the first opinion that CDs were subject to gift as were other chose in action or evidence of debt. Boling v. Gibson, supra; Pyland v. Gist, 177 Ark. 860, 7 S.W. 2d 985 (1928).

Appellants argue the court erred in failing to hold delivery of the CDs by the decedent to his son Wayne amounted to a gift inter vivos. There is no dispute between the parties that the law of the case is correct and controlling.

It is not contradicted that Herman Gibson delivered the CDs to his son Wayne. Neither is it contradicted that the CDs were payable to Herman Gibson or Mema W. Gibson or Cecil L. Gibson. On their face, certificates of deposit are nonnegotiable. Therefore, legal possession alone is not sufficient to transfer ownership. There can be no doubt that it was decedent’s intention to make a gift of the certificates to his sons during his lifetime or at least upon his death. However, we cannot say from the record that the court clearly erred in finding the transactions in this case did not amount to an inter vivos gift. The testimony of Christabel Elliott is persuasive evidence. We are not unmindful that a majority of the witnesses who testified indicated that Ms. Elliott had told different stories at different times. Even aside from the testimony of this witness there was evidence upon which the chancellor could have based his finding. It is obvious that Herman Gibson did go into the Citizens Bank and sign his name to the box rented by his son. Whether this was in compliance with Wayne Gibson’s instructions is beside the point in the sense that it reflects an intention on the part of Herman Gibson to have at least something to do about the contents in this safety deposit box. No one bothered to change the names of the payees on the CDs nor the address which was that of Herman Gibson’s. Herman Gibson received, accepted and cashed interest checks on the CDs after he had delivered them to his son. None of the banks were notified that Herman Gibson was no longer the owner of the CDs. Neither was there any designation in writing by the decedent indicating he had parted with ownership or control of the CDs. The appellants had a heavy burden to show by clear and convincing evidence that these CDs were delivered and met all of the conditions of a completed gift. We have held since 1899 that in order to be a gift inter vivos (in presentí) the gift must be accompanied with delivery of the property, or such delivery as the nature of the property will admit, and that as between the parties the gift has become irrevocable. Williams v. Smith, 66 Ark. 299, 50 S.W. 513 (1899). The definition of a completed gift inter vivos has changed very little over the years. See Lowe v. Hart, 93 Ark. 548, 125 S.W. 1030 (1910); Hopson v. Buford, 225 Ark. 482, 283 S.W. 2d 337 (1955); Cook v. Bevill, supra; Carlton v. Baker, supra; and Willey v. Murphy, supra.

Due to the nature of a certificate of deposit and the law relating thereto, the purchaser has the right during his lifetime to change the certificate and cause it to be payable to different parties or even to cash it in. Regardless of the fact that Wayne Gibson may have held both keys to the lockbox, the decedent still could have exercised control by going through the issuing banks. Therefore, the certificates of deposit were not beyond the control of the decedent, or at least the chancellor could have so found.

II.

THE CHANCELLOR ERRED IN DENYING THE PETITION FOR REHEARING AFTER THE DOWER LAWS OF ARKANSAS WERE DECLARED UNCONSTITUTIONAL.

The hearing in this case was concluded on May 22,1980, and the decree entered in the chancery court on January 5, 1981. The decision in Stokes v. Stokes, 272 Ark. 300, 613 S.W. 2d 372 (1981), which invalidated dower on constitutional grounds, was rendered February 23, 1981. The constitutionality of the dower statute had not been raised in the trial below and was not considered by the chancellor in the first or the second trial. We have previously held that where an appellant failed to raise the issue of the constitutionality of an Arkansas statute in the lower court, it could not be considered for the first time on appeal. Wilson v. Wilson, 270 Ark. 485, 606 S.W. 2d 56 (1980); Gross v. Gross, 266 Ark. 186, 585 S.W. 2d 14 (1979). It is true, as appellants say, that if the statute was as unconstitutional in 1980, it was also unconstitutional in 1976. The fact remains, however, that in this case the matter was not presented to the court until after rendition of the Stokes decision.

III.

THE CHANCELLOR ERRED IN ADMITTING THE DISCOVERY DEPOSITION OF A WITNESS WHO WAS PRESENT AND TESTIFIED.

We have not considered the discovery deposition of Christabel Elliott because the appellants are correct in stating that Ark. Stat. Ann. § 28-348 (Repl. 1979) prohibits the use of such deposition in the absence of certain findings which were not made in this case. This matter was specifically dealt with prior to the statute in the case of Midland Valley Railroad Co. v. Ennis, 109 Ark. 206, 159 S.W. 214 (1913). We have made the same holding since enactment of the statute. Pickard v. Stewart, 253 Ark. 1063, 491 S.W. 2d 46 (1973). Furthermore, the Rules of Civil Procedure, Rule 32, which became effective July 1, 1979, prohibits the use of depositions at trial except in certain instances not applicable to the present case. Apparently the appellee had no interest in this argument because it was not presented in his brief.

IV.

THE CHANCELLOR ERRED WHEN HE DECLINED TO ALLOW APPELLANTS TO INTRODUCE EVIDENCE OF INTENT ON THE PART OF THE DECEASED DONOR AT THE TIME HE DELIVERED THE CERTIFICATES OF DEPOSIT TO WAYNE GIBSON.

The solicitor’s testimony was proffered and received into the record. Even if we consider the proffered testimony, it would not change the result in this case. The excluded testimony was evidence of a conversation between the decedent and solicitor Gibson relating to the matter of handling the CDs. We agree with the statement of the appellants that the proffered testimony was really not needed; therefore, we will not belabor the point.

We do not find that the chancellor was clearly in error when he held that Herman Gibson did not make a present, complete, irrevocable and unconditional gift of the certificates of deposit. There was evidence that Herman Gibson still retained some elements of control. A gift which is not in presentí cannot be treated as a completed inter vivos gift.

Affirmed.

Hickman and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. If it is correct, as appellee argues and the majority agrees, that our law requires the negation of a gift under the circumstances of this case and, by so doing, deprives two sons of a gift intended by their father giving it instead to a virtual stranger, then that law should be reexamined and redefined.

The majority opinion concedes that there is no doubt but that the father’s intention was to make a gift to his sons. He had the certificate issued in their names with his own and then actually delivered it to one of them with instructions that it was to be theirs. The requirements of the law were fully met by that delivery and the undisputed intent. In Hopson v. Buford, 225 Ark. 482, 283 S.W. 2d 337 (1955), we said:

We have held in the case of Williams v. Smith, 66 Ark. 299, 50 S.W. 513, that, “if the gift be intended in presentí, and be accompanied with such delivery as the nature of the property will admit, and the circumstances and situation of the parties render reasonably possible, it operates at once, and, as between the parties, becomes irrevocable.”

The law of gifts inter vivos seems to have changed interstitially from earlier years when it was said that the essential elements were a competent donor, an accepting donee and actual delivery of the property with a present intent to make a gift. Smith v. Van Dusen, 235 Ark. 79, 357 S.W. 2d 22 (1962); Carlson v. Carlson, 224 Ark. 284, 273 S.W. 2d 542 (1954) (Rehearing denied January 10,1955); Aycock v. Bottoms, 201 Ark. 104, 144 S.W. 2d 43 (1940); Waid v. Waid, 188 Ark. 590, 66 S.W. 2d 1052 (1934); and Miles Monroe, 96 Ark. 531, 132 S.W. 643 (1910).

Somewhere along the way the wording embraced in Boling v. Gibson, 266 Ark. 310, 584 S.W. 2d 14 (1979), was infused into the definition and permitted to overshadow the key element of the donor’s intent:

It must have been the intention of the donor that title pass immediately, and a delivery for safekeeping or for any purpose, either express or implied, other than a specific intent to part with all right, title and interest in, and all dominion and control over the certificates, would not constitute a gift.

The result is that greater emphasis is now placed on technical requirements and less on intention. That change may be valid where the gift is unnatural, but where, as here, the gift is consistent with the normal, almost universal, aim of parenthood to benefit its own offspring, then intent should be primary and technique secondary. It is interesting to note that the only case cited in Boling v. Gibson for that wording is Lowe v. Hart, 93 Ark. 548, 125 S.W. 1030 (1910), where this court upheld a gift of non-negotiated certificates of deposit handed by the deceased donor to his housekeeper, facts much less compelling than these.

Adherence to form has much to commend it. It is the surest part of the fabric of the law. But where it is at the expense of a fair and just end, it should give way to reason. The result reached below is clearly erroneous and I would reverse.

Justice Hickman joins in this dissent.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    MONTGOMERY WARD & COMPANY, INC. v. Elbert CREDIT and Joyce CREDIT
    81-72
    621 S.W. 2d 855
    Supreme Court of Arkansas
    Opinion delivered October 12, 1981

      Robert R. Cortinez, for appellant.

      Robert J. Brown, for appellees.
   John I. Purtle, Justice.

The appellant filed suit in the Faulkner County Circuit Court against the appellees for a debt on an open account. The trial court granted appellees’ motion for a summary judgment on the grounds that the interest charged by appellant was usurious and thereby rendered the contract void.

On appeal it is urged that the court erred in granting a summary judgment and in finding that the contract was void on the grounds of usury. We agree with appellant’s argument.

The facts are not complicated in this case. Appellant approved appellees’ application for credit on June 30, 1973. The contract recited that the interest rate would be .83% per month on the previous month’s balance or 10% per annum. For reasons not explained in the record a second application and agreement were entered into on July 30,1973. However, the second agreement provided for interest at the rate of VA% per month or 18% per annum. It also indicated on the bottom the contract was for use in Alaska, California and Delaware. Appellees made purchases and payments on the account between 1973 and 1980. No disagreement was manifested during this 7-year period.

On August 27, 1980, the appellant filed suit against the appellees for the outstanding balance on the account in the amount of $ 1277.58. The complaint alleged the balance was due on the contract entered into on June 30, 1973, but the July 1973 contract was made an exhibit to the complaint. Appellees noticed the exhibit called for interest at the rate of VA% per month or 18% per annum and moved for a summary judgment. No affidavits were attached to the motion; an answer and counterclaim were filed; and briefs were submitted by the parties.

A hearing was held on the motion for a summary judgment on October 6, 1980. Testimony on behalf of both parties was presented at this hearing. At the conclusion of the hearing the court granted a summary judgment in favor of the appellees. The court held the contract was on its face usurious and therefore void. Notice of appeal was filed on October 29, 1980.

Summary judgments are governed by Rules of Civil Procedure, Rule 56. A summary judgment is ordinarily granted upon the pleadings and affidavits in support thereof. There is no provision for taking oral testimony in the matter of a summary judgment. Sikes v. Segers, 263 Ark. 164, 563 S.W. 2d 441 (1978). It is not absolutely necessary that affidavits be filed in support of a response to a motion for a summary judgment. Adams Motors v. Hudspeth Motors, Inc., 266 Ark. 790, 587 S.W. 2d 227 (1979). A summary judgment is not proper when there exists a genuine issue as to a material fact. Hunt v. Brewer, 266 Ark. 182, 585 S.W. 2d 12 (1979).

Although no counter-affidavits were filed by the appellant, no affidavits were filed by the appellees in support of the motion for summary judgment. If we were to consider the oral testimony presented at the hearing, which we do not, there would clearly be a genuine issue of fact. However, in the absence of affidavits we are left with the original pleadings. Appellant’s complaint alleges the amount due is a result of the June 30,1973, contract. The appellees contend that charges were made in accordance with the July contract.

It is essential in order to establish usury that there be a forbearance and an intent or agreement to take interest in excess of 10% per annum. Briggs v. Steele, 91 Ark. 458, 121 S.W. 754 (1909). We have considered a case somewhat similar to this and held that it is a matter of proof whether excessive interest was actually charged and received. Parks Products Co. v. Beard Hardwood Lumber Co., 263 Ark. 501, 565 S.W. 2d 615 (1978).

We have many times stated that a summary judgment is an extreme remedy and is only proper whenever the pleadings and proof show that no genuine issue exists as to material fact, and the moving party is entitled to judgment as a matter of law. Proof submitted on behalf of the motion must be viewed in the light most favorable to the party resisting the motion and all doubts and inferences resolved against the moving party. Talley v. MFA Mutual Insurance Co., 273 Ark. 269, 620 S.W. 2d 260 (1981). Under the circumstances of this case we think the judgment of the trial court was clearly erroneous, as we find there were genuine disputed issues of fact to be resolved. Therefore, the case will be reversed and remanded with directions for the trial court to proceed in a manner not inconsistent with this opinion.

Reversed and remanded.


author: John I. Purtle, Justice. George Rose Smith, Justice, Steele Hays, Justice,

text:
    Raymond Pleasant MANEES v. STATE of Arkansas
    CR 81-23
    622 S.W. 2d 166
    Supreme Court of Arkansas
    Opinion delivered October 12, 1981
    [Rehearing denied November 9, 1981.]

      William R. Simpson, Jr., Public Defender, and Sandra Trawick Berry, Deputy Public Defender, by: Deborah Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

On November 10, 1980, a jury convicted appellant of aggravated robbery, rape and theft of property. He was sentenced to 50 years for aggravated robbery, 50 years for rape and 20 years for theft of property, all of which were to run concurrently.

The only point argued on appeal is whether the trial court erred in refusing to permit a defense witness to testify about the prosecuting witness’s prior sexual conduct.

For the reasons stated below we disagree with the contention of appellant and affirm the conviction and sentences.

The facts reveal that the appellant and the prosecuting witness met in the fall of 1978 when her car was involved in an accident and the appellant was driving the tow truck dispatched to the scene. The appellant testified that after he had towed her car, he took her to her home in his car and there had sexual relations with her. She denies this, testifying that she called a friend from the Exxon station and the friend took her home. The prosecuting witness’s roommate testified that she had gone to the station and had taken the prosecuting witness home and had stayed with her for about two hours. Both the appellant and the prosecuting witness agree that the appellant owed her money which had not been paid as of time for trial, and that she had come by where he worked, and called, and had left messages. However, the prosecuting witness testified that the money was a $500 loan she had given the appellant in January 1979 to be used for the purchase of marijuana. He denied this, testifying that the amount was $600, and it was promised to her in return for her performance of sexual acts with him at his apartment while Tyler, his roommate, stood behind the door and watched, and for her making an obscene telephone call to Tyler. The prosecuting witness denies ever having sexual relations with appellant prior to the incidents of March 10 and 11, 1980, when she was forced at gunpoint.

Both agree that they were together in her car the night of March 10 and early morning hours of March 11 for the purpose of collecting the money. However, the prosecuting witness testified that the appellant, after several hours drive, forced her at gunpoint to perform fellatio on the appellant on three separate occasions, and forcibly penetrated her vagina with his fingers. The appellant gave uncorroborated testimony that earlier that evening the prosecuting witness had told him that if he did not pay her the money she would find some way to send him to the penitentiary. The appellant neither admitted nor denied having any sort of sexual contact with the prosecuting witness on the night in question.

The appellant’s attorney stated that the defense was not one of consent, but that Tyler’s testimony was necessary to show bias or ulterior motive. However, the defense attorney also stated that Tyler had no knowledge of the debt or the obscene telephone calls; neither was there a contention that Tyler was present at the time of the alleged threat to send the appellant to the penitentiary if he did not pay.

The crucial part of this trial came about by reason of appellant filing a motion to allow testimony concerning the prosecuting witness’s previous sexual conduct. A hearing was conducted on October 29 at which the appellant proffered testimony about prior sexual conduct and further alleged that one Tommy Tyler had observed her having sex witb him. An omnibus hearing was set for November 3, 1980, to be held immediately before a jury trial. Witness Tyler was not present, and the court granted a continuance until November 10, 1980. On that date the motion concerning the prior sexual conduct was again brought up. Tyler testified that he had seen the appellant and a woman with frizzy blonde hair performing sexual acts in the appellant’s apartment while he stood behind the door and watched. However, he was uncertain as to the date of this incident, had no knowledge of an obscene telephone call, and he stated that the woman he had observed was not present in the courtroom. The record reflects that the prosecuting witness was ten feet from Tyler at the time.

The prosecuting witness testified that her hair had never been either blonde or frizzy.

The defense attorney admitted that Tyler had no knowledge of the debt as evidenced by the following statement:

Well, Your Honor, we are not saying that he had any knowledge, that Tommy Tyler had any knowledge of the debt for the sexual appearances and phone calls.

There certainly was no allegation that Tyler had been present the night of the rape, either at the place where the alleged threat to have the appellant put in the penitentiary if he did not pay or in the car where the rape occurred. The court ruled that the testimony of witness Tyler was not relevant and refused to allow him to testify about the prosecuting witness’s previous sexual conduct. No interloeutory appeal was requested or taken. The case proceeded to trial on that date.

The trial court is vested with a great deal of discretion in ruling whether prior sexual conduct of a prosecuting witness is relevant, and we do not overturn its decision unless it was clearly erroneous. Houston v. State, 266 Ark. 257, 582 S.W. 2d 958 (1979).

Appellant bases his defense upon the case of Marion v. State, 267 Ark. 345, 590 S.W. 2d 288 (1979). In Marion we stated:

. . . Certainly, upon sufficient proffer as here, the victim’s bias, prejudice or ulterior motive for filing the charge is relevant or germane to the question of whether the alleged act of sexual intercourse actually occurred and the probative value outweighs its inflammatory or prejudicial nature. . . .

In Marion the appellant’s contention was that no sexual intercourse occurred, that the charge was brought by the prosecuting witness following a fight during which he had accused her of giving him a venereal disease. In the present case there is no argument by the appellant that sexual contact did or did not occur on the date of the charge. Since appellant does not admit having deviate sexual activity with the prosecuting witness on March 10,1980, prior sexual acts would not be relevant. This is true even if the probative value outweighs the inflammatory or prejudicial nature of the testimony. In this case, prior sexual conduct is simply not in issue.

The provisions of Ark. Stat. Ann. § 41-1810.1 (Repl. 1977) prohibit such evidence as is attempted to be offered here from being offered either through direct or cross-examination for the purpose of attacking the credibility of the victim or to prove consent or any other defense or for any other purpose. However, the above statute is slightly modified by Ark. Stat. Ann. § 41-1810.2 (Repl. 1977) which states the procedure for allowing such evidence. This provision of the act provides that evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim’s prior sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of such evidence is determined by the court in an in camera hearing.

In order to introduce such evidence the accused must file a written motion stating that he has an offer of relevant evidence of the victim’s prior sexual conduct and the purpose for which the evidence is believed relevant. The statute requires a hearing on this motion no later than three days before the commencement of the trial or at such other times as the court for good cause may permit. This provision also provides that the court make a determination of whether the proof is relevant to a fact in issue and whether its probative value outweighs its inflammatory or prejudicial nature. In such case the court is required to make a written order stating what evidence, if any, may be introduced by the defendant and the nature of the questions to be permitted. Section (c) of Ark. Stat. Ann. § 41-1810.2 provides that the prosecuting attorney may take an interlocutory appeal on behalf of the state in any adverse ruling and that the defense may likewise appeal such court order if it deems the order to be prejudicial. Specifically, the statute requires further proceedings to be stayed pending determination of the appeal. Sexual conduct is defined in Ark. Stat. Ann. § 41-1810.3 and clearly includes the activity in question here.

There is no allegation that the excluded testimony would shed any light whatsoever on the bias or prejudice of the prosecuting witness. Since it is not disputed that sexual conduct occurred on March 10, 1980, the language in Marion v. State, supra, is inapplicable. We held in Marion that the reputation of the prosecuting witness as a prostitute, or that she had two illegitimate children, was not relevant to the central fact in issue.

We have upheld the rape shield statute in Duncan v. State, 263 Ark. 242, 565 S.W. 2d 1 (1978); Bobo & Forrest v. State, 267 Ark. 1, 289 S.W. 2d 5 (1979); Marion v. State, supra; Dorn v. State, 267 Ark. 365, 590 S.W. 2d 297 (1979); Kemp v. State, 270 Ark. 835, 606 S.W. 2d 573 (1980); Boreck v. State, 272 Ark. 240, 613 S.W. 2d 96 (1981). The consensus ruling of the foregoing cases is to the effect that all prior acts of sexual conduct are inadmissible unless they come within the exceptions of the rape shield act. Before such acts may be presented in evidence the court must find that the probative value outweighs its inflammatory and prejudicial nature. This determination is made by the trial court prior to the trial in chief. At such hearing the accused may present all facts he deems relevant and proper.

If the appellant were to be allowed to circumvent the rape shield statute by the mere allegation that the prosecuting witness brought the charges through bias or prejudice, the statute may as well be stricken from the book. The mere allegation of bias and ulterior motive to permit the introduction of prior sexual conduct on the part of the prosecuting witness would most likely cause such allegation to be included in the defense of every rape charge. The trial court ruled the proffered testimony inadmissible. Certainly, from the record we cannot say that the ruling by the trial court was clearly erroneous.

Affirmed.

George Rose Smith, J., concurs.

Hickman and Hays, JJ., dissent.

George Rose Smith, Justice,

concurring. Although I agree with the dissenting justice’s view that Tyler’s inability to identify the prosecutrix in the courtroom did not render his testimony inadmissible, I think it was inadmissible for a different reason — that its relevancy was outweighed by its prejudicial effect. At the trial defense counsel stated positively that consent by the prosecutrix was not an issue; so the rape shield statute would ordinarily have excluded a bare statement even by Manees that he and the prosecutrix had sex on an earlier occasion. But the defense offered the prior sexual incident to show that the prosecutrix concocted the rape charge against Manees out of bias, because he owed her money for sexual favors. Cf. Marion v. State, 267 Ark. 345, 590 S.W. 2d 288 (1979), where the defense was that the prosecutrix had concocted the charge because Marion had accused her of infecting him with a venereal disease. In the case at hand Tyler admittedly knew nothing whatever about the possibility that the prosecutrix may have been motivated by bias in bringing the charge against Manees. Hence Tyler could not testify to the one fact that was essential to the admissibility of Manees’s own testimony about the earlier incident. Tyler’s testimony about having witnessed the earlier incident would therefore have been prejudicial to the character of the prosecutrix with only scant counterbalancing relevancy favoring its admissibility.

Steele Hays, Justice,

dissenting. I disagree with the majority view. The application of the Arkansas Rape Shield Statute is not the issue. At pretrial hearing the trial court held that the appellant could testify to alleged prior sexual conduct by the prosecutrix. As the majority opinion observes, the trial court is vested with wide discretion in ruling whether allegations of prior sexual conduct by a prosecuting witness are relevant, and we do not overturn its decision unless it was clearly erroneous. Houston v. State, 266 Ark. 257, 582 S.W. 2d 958 (1979).

At trial the appellant was allowed to testify to the identical sexual acts between himself and the prosecutrix that Tommy Tyler claimed to have witnessed but was precluded from corroborating. Relying on the bias or ulterior motive exception to the Rape Shield Statute, first recognized in Marion v. State, 267 Ark. 345, 590 S.W. 2d 288 (1979), the trial judge ruled the appellant’s testimony of prior sexual acts was relevant and its probative value outweighed its inflammatory or prejudicial nature. The proffered testimony of Tommy Tyler corroborated the defendant’s testimony and added no additional evidence whatsoever, certainly nothing of an inflammatory or prejudicial nature. Admittedly, Tyler’s failure to identify the prosecutrix in chambers cast doubt upon his credibility, but that issue was for the jury to weigh and decide. It had been more than a year and a half since the witness had seen the prosecutrix according to his testimony and there was testimony that her hair style and coloring had changed. Issues of credibility are to be resolved by the jury having the benefit of direct and cross examination and not by the trial judge in chambers. Identification of persons, whether an accused or another witness, involves considerations of time, changed appearance, recollection, previous acquaintance, duration of the association and numerous other aspects. But these considerations affect the weight of the evidence, not its admissibility. Warren v. State, 272 Ark. 231, 613 S.W. 2d 97 (1981); U.S. v. Evans, 484 F. 2d 1178, 1181-1182 (2d Cir. 1973); Auerbach v. United States, 136 F. 2d 882 (6th Cir. 1943).

In this context, Professor Morgan explains the test of admissibility as follows:

The court may not refuse to permit a witness to testify that he perceived a material matter merely because the court believes the witness to be obviously mistaken or obviously falsifying. It is only when no reasonable trier of fact could believe that the witness perceived what he claims to have perceived that the court may reject the testimony. Not improbability but impossibility is the test. . . . [w]here he swears that he has personal knowledge of a matter which is merely very unlikely that he was a percipient witness, his testimony will stand and may be credited by the trier. . . . E. Morgan, Basic Problems of Evidence, pp. 59-60 (4th ed. 1961), quoted in 3 Weinstein, Evidence 602[02] (1981).

This record reflects a patent inconsistency in the rulings of the trial court: Under the Arkansas Rape Shield Statute, the trial judge found the same prior sexual act to be relevant and admissible as to the testimony of the defendant and irrelevant as to his only corroborating witness, based solely on the answer of the witness that he didn’t see the prosecutrix in chambers when in fact she was one of two women present.

When prior sexual acts are found to be relevant and admissible under the Rape Shield Statute, that relevance extends to all witnesses to such acts, and the witnesses’s credibility is to be determined by the jury. Unless the testimony of other witnesses to the alleged prior sexual acts would be unduly inflammatory or prejudicial, it should be received. Tyler’s testimony should not have been excluded simply because his identification was doubtful. The fact that it was deprived the defendant of the opportunity to offer material evidence which the jury might have believed.

I would reverse.

Justice Hickman joins in this dissent.


author: Robert H. Dudley, Justice.

text:
    SPRINGDALE SCHOOL DISTRICT v. Paul JAMESON, Judge, Fourth Judicial Circuit, Second Division, Washington County
    81-63
    621 S.W. 2d 860
    Supreme Court of Arkansas
    Opinion delivered October 12, 1981

      Blair, Cypert, Waters ir Roy, for petitioner.

      Gear ley, Gitchel, Mitchell ir Bryant, P.A., by: Robert M. Cearley, Jr., and Steve Clark, Atty. Gen., by: R. B. Fried-lander, Asst. Atty. Gen., for respondent.
   Robert H. Dudley, Justice.

Michael Corso taught school in the Springdale School District for two years and his contract was not renewed the third year. He sought redress before the school board pursuant to the Teacher Fair Dismissal Act of 1979. Ark. Stat. Ann. §§ 80-1264 et seq. (Repl. 1980). His efforts before the school board were unsuccessful and he filed a "Notice of Appeal” in circuit court in which he alleged that the Springdale School District violated the Teacher Fair Dismissal Act of 1979, supra, and The Arkansas Teachers’ Salary Law. Ark. Stat. Ann., Title 80, Chapter 13 (Repl. 1980). He asked for an order reinstating him to his job with back pay and costs. The Springdale School Board filed a motion to dismiss and, in the alternative, to transfer to chancery. The Circuit Judge, Honorable Paul Jameson, denied both motions. The School Board now petitions this court for a Writ of Prohibition to prevent the judge from exercising jurisdiction.

Prohibition is an extraordinary and discretionary writ which is not granted unless the petitioner is clearly entitled to it and the court against which it is sought is wholly without jurisdiction. Arkansas State Highway Com’n. v. Roberts, 248 Ark. 1005, 455 S.W. 2d 125 (1970). It is never issued to prohibit an inferior court from erroneously exercising its jurisdiction, but is issued only where the inferior court is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. Richards v. Maner, Judge, 219 Ark. 112, 240 S.W. 2d 6 (1951). Jurisdiction is tested on the pleadings and not the proof. Modern Laundry v. Dilley, 111 Ark. 350, 163 S.W. 1197 (1914). The pleading alleges that the petitioner school board violated the Teacher Fair Dismissal Act of 1979 and the Teacher’s Salary Law and, as a result, Michael Corso’s teaching contract was wrongfully not renewed. We do not decide if those allegations are correct or true, rather we decide if the circuit court is wholly without jurisdiction to hear them.

The cause of action pleaded by Corso is for an alleged breach of a contract implied by law. The subject matter jurisdiction for breach of contract is cognizable in circuit court. The prayer for relief asks two remedies, reinstatement and back pay, and both are within the jurisdiction of circuit court. The prayer for reinstatement is in the nature of a petition for a writ of mandamus. Ark. Stat. Ann. § 33-102 (Repl. 1962). A writ of mandamus will issue whenever the directors of a school district fail or refuse to do an act which is plainly their duty to do. Maddox, et al v. Neal, et al, 45 Ark. 121 (1885). A mandamus action against a school board is cognizable in circuit court and not in chancery court. Nethercutt v. Pulaski County Special School District, 248 Ark. 143, 450 S.W. 2d 777 (1970). The prayer for back pay is for damages alleged to be the result of the breach of a contract implied by law. In the event the trial judge rules that Corso has stated a cause of action the school district may plead mitigation damages. Maxwell v. Southside School District, 273 Ark. 89, 618 S.W. 2d 148 (1981). We cannot hold that the circuit court is wholly without jurisdiction.

Petitioner argues that one of the statutes relied on does not apply, that the statute is unconstitutional and that the pleading filed by Corso does not conform to the Rules of Civil Procedure. We do not address those arguments, or other similar ones, as the trial court has jurisdiction over the subject matter and the trial court must try the case, not this appellate court. The trial court’s decision can then be tested on appeal.

Petitioner tacitly recognizes that this court repeatedly has said that prohibition cannot be used as a substitute for appeal. However, petitioner argues that appeal in this case will not provide an adequate remedy and therefore the writ ought to issue. Such an argument is based upon a misconception of prohibition and appeal. Appeal lies in every case. It is guaranteed by our Arkansas Constitution. Prohibition lies where appeal would be available, but inadequate, because a litigant is not bound to submit to the exercise of jurisdiction not authorized by law. The true test is whether or not the lower court is proceeding beyond its jurisdiction. Monette Road Improvement District v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920). The trial court is not without jurisdiction.

Writ denied.


text:
    Alonzo CLARK v. STATE of Arkansas
    CR 80-118
    621 S.W. 2d 857
    Supreme Court of Arkansas
    Opinion delivered October 12, 1981

      E. Alvin Schay, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant, Alonzo Clark, was arrested and charged with rape on February 15, 1978, and was released on bail on March 10, 1978. On February 25,1980, a jury found him guilty of rape and, after establishing that he had committed two previous felonies, sentenced him to life in prison. He then filed an appeal and the appellate public defender’s office was appointed to represent him. That counsel alleged that appellant had been denied effective assistance of counsel and received permission to dismiss the appeal in order to proceed under our post-conviction procedure. Rule 37 of the Rules of Criminal Procedure, Ark. Stat. Ann., Vol. 4A (Repl. 1977). After an evidentiary hearing the Rule 37 petition was denied and a motion to reinstate the appeal was granted. Both appeals have been consolidated in this court. We affirm the judgment of conviction on direct appeal but reverse and dismiss on the post-conviction proceeding.

Appellant contends that there was not sufficient evidence to support the rape conviction. The test on appeal is whether there is substantial evidence to support the verdict. Jones v. State, 269 Ark. 119, 598 S.W. 2d 748 (1980). There was substantial evidence to support the conviction but it is needless to discuss that evidence because we reverse and dismiss the case on the post-conviction proceeding.

The point alleged to be error in the Rule 37 appeal is that the trial court should have found that appellant did not receive a timely trial and therefore was denied the effective assistance of counsel. The State concedes that more than three full terms of court passed before appellant was brought to trial, which was a violation of the rules then in effect. Rule 28.1, 28.2 and 28.3 of the Rules of Criminal Procedure. Ark. Stat. Ann., Vol. 4A (Repl. 1977). However, the State contends that the appellant waived his right to a timely trial. Rule 30.2 states:

Failure of a defendant to move for dismissal of the charges shall constitute a waiver of his rights under these rules.

Clearly the failure to move for dismissal of the charges waived appellant’s right to a timely trial but that failure does not waive his right to effective assistance of counsel.

A person who is charged with a crime quite naturally is concerned about obtaining a timely trial but it is the public who has an interest in demanding that these persons be promptly and timely tried. It is for the public’s protection that the timely trial procedures have been implemented and we deem it worthwhile to review these procedures found in several recent decisions. If a defendant is not brought to trial within the prescribed time, and a motion to dismiss is filed in the original proceeding, the defendant is entitled to a dismissal of charges without proof of prejudice. Alexander v. State, 268 Ark. 384, 598 S.W. 2d 395 (1980). However, where no motion to dismiss was filed in the original proceeding, and post-conviction relief is sought on the basis of inadequate representation of counsel for failure of the attorney to file a motion to dismiss, the defendant must prove prejudice from the claimed error. See Neal v. State, 270 Ark. 442, 605 S.W. 2d 421 (1980). The reasons for the procedural differences are that the issues are not the same, there could be a valid trial strategy involved in the latter situation, and in the post-conviction proceeding there is a judgment of conviction which is regular on its face and is being collaterally attacked.

If, in the original trial, the defendant knowingly and intelligently waived his speedy trial rights he cannot raise that argument in a post-conviction proceeding. Questions which might have been raised at the original trial are not permissible issues at a Rule 37 proceeding. Neal v. State, supra. However, if the defendant did not knowingly and understandingly waive his speedy trial rights he is entitled to seek post-conviction relief on the basis of ineffective assistance of counsel.

Appellant’s original trial counsel admitted in retrospect that the motion probably should have been made, but he also contended that he was employing a delaying strategy in the hope that the prosecutrix would drop the charges. Normally, the type of strategy employed by trial counsel cannot be the basis for Rule 37 relief. Neal v. State, supra. However, once the time for the trial of appellant had passed, all the trial attorney had to do to obtain appellant’s release was to file a motion to dismiss, subject to the State proving an excluded period. This was not done. In this case, on the record before us, we can find no reasonable basis for the trial attorney’s failure to file a motion to dismiss. The failure to file such a motion at the proper time does not automatically amount to ineffective assistance of counsel, but must be examined in light of all the attending circumstances.

This record reveals no delays resulting from other proceedings concerning the defendant, Rule 28.3 (a). No continuance was granted at the request of the defendant, Rule 28.3 (c). No delay was as a result of the absence of the defendant, Rule 28.3 (e). The only request for a continuance was by the Prosecuting Attorney, Rule 28.3 (d), and this was made after the timely trial rule had been violated. The State offered no evidence of an excludable period.

Appellant’s testimony is uncontradicted that on several occasions he asked his attorney when his case would be tried and he was told “just to leave it alone” and that the attorney would “take care of it.” He testified, without contradiction and witnout cross-examination, that he had no intention of waiving any law.

The appellant’s trial attorney and the trial judge alluded to “it being generally known that the docket was overloaded.” The trial judge stated that he would obtain the court statistics to show docket congestion. A review of the transcript does not reflect this was done.

The record discloses that all of the excludable periods under Rule 28.3 were ruled out with the possible exception of Rule 28.3 (b) which deals with docket congestion attributable to exceptional circumstances. However, that rule requires:

When such delay results, the court shall state the circumstances in its order continuing the case.

The language in the rule is clear. In Harkness v. Harrison, Judge, 266 Ark. 59, 585 S.W. 2d 10 (1979), we stated: “Rule 28.3 (b) obviously contemplates that a trial judge will regularly call the docket, and if a case is to be continued beyond the time permitted by law, then the reasons will be stated.” That was not done in this case.

It is obvious that if the motion to dismiss had been filed the trial judge would have had no choice but to grant it. There was no reasonable legal basis for the failure to object to the violation of appellant’s right to a timely trial. Appellant has met his burden in proving that he was denied effective assistance of counsel and that he suffered prejudice as a result.

Reversed and dismissed.

Holt, J., not participating.


author: Steele Hays, Justice.

text:
    James Ray RENTON v. STATE of Arkansas
    CR 80-60
    622 S.W. 2d 171
    Supreme Court of Arkansas
    Opinion delivered October 12, 1981
    [Rehearing denied November 9, 1981.]

      Matthew Horan and Tom M. Carpenter, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

On the morning of December 21, 1975, the body of John Tillman Hussey, a Springdale Police Officer, was found in a wooded area west of Fayetteville. His hands were handcuffed behind his back and he had been shot four times through the head with his service revolver. In January a felony information was filed charging the appellant and Harold Davey Cassell with the crime of capital felony murder of a police officer acting in the line of duty. Ark. Stat. Ann. § 41-4702 (Supp. 1975). Seventeen months later appellant was arrested in Denver, Colorado, using an assumed name. He was tried, convicted and appeals the judgment sentencing him to life without parole, alleging six errors. We affirm the judgment.

I.

Appellant’s former girl friend, Ms. Connie Marie Caves, provided crucial testimony for the prosecution, including several incriminating statements which she said appellant made to her while they were living together. Appellant insists that he and Ms. Caves were husband and wife under the law of Texas, one of 13 states recognizing common law marriages, and that his claim of the marital privilege should have been granted. Because the issue is critical and involves the law of another state, we examine it in detail, looking first to the evidence and then to the applicable law.

Appellant married Susan Frazier Renton in 1972 and heard indirectly that she had divorced him in 1975, around the time he met Ms. Caves, a high school senior in Salisaw, Oklahoma. Immediately after her graduation Ms. Caves and the appellant left Oklahoma. They first travelled to Arkansas and then to Texas where a simulated wedding ceremony was performed on June 8, 1975. The implication of Ms. Caves’ testimony is that appellant had promised to marry her and the ceremony was an appeasement which she characterized as a “farce” — the witnesses and the appellant using aliases and treating the matter as a joke. What the legal significance may have been is essentially moot, however, because appellant and Susan Frazier Renton were not divorced until April 28, 1976, almost a year later.

There are a number of aspects of this relationship which are seldom, if ever, present in common law marriages: The traditional use of surname is lacking as appellant appears to have used aliases entirely, even in the putative ceremony; one party to the relationship, appellant, claims their relationship was a marriage, whereas Ms. Caves did not consider it a marriage; the parties would at times register at motels as man and wife, usually as Mr. and Mrs. Jimmie Lee Ford, but at other times they would not; they held themselves out as man and wife at times and at other times they disclaimed any marital relationship, notably while living in Oklahoma City from October, 1976, to early 1977, during which appellant posed as Gene Harold Chapman and Ms. Caves as Kathy Taylor, identified to their acquaintances as the sister of appellant’s deceased girl friend; at one point appellant told Ms. Caves to tear up the “marriage license;” the relationship, 'according to Ms. Caves, was tainted by appellant’s urging her to engage in prostitution, to share him and his bed with a Rita Shapp and to have sexual relations with his friend Cassell, all of which she refused; rather than continuing until the death of one, the relationship ended abruptly in January of 1977 when appellant left Ms. Caves and was arrested a year and a half later in Denver, during which she gained the impression that he had taken another girl friend; after his arrest, appellant denied any marital tie to Ms. Caves, answering more than once under oath that he ws separated from Susan Frazier Renton and on one occasion naming Rita Shapp as his wife. He insists this was done to protect Ms. Caves, and perhaps so, but his disavowal is a relevant fact in determining whether he and Ms. Caves regarded themselves as husband and wife. His denial, coupled with the other unusual aspects, is incongruent with the good faith requirement of common law marriages. Bickford v. Carden, 215 Ark. 560, 221 S.W. 2d 421 (1949).

Appellant relies on the law of Texas, but when that body of law is examined in the light of the evidence the claim cannot be sustained. The Texas statutory definition of informal marriages is found in Texas Family Code Ann. § 1.91 (Vernon 1975), providing that such marriages may be proved by evidence that the parties agreed to be married and after the agreement lived in Texas as husband and wife, representing to others that they were married.

There is an abundance of case law that claims of common law marriages should receive “close scrutiny” by the courts. Bodde v. State, 568 S.W. 2d 344 (Tex. Cr. App. 1978); Chatman v. State, 513 S.W. 2d 854 (Tex. Cr. App. 1974). It is said that the agreement of marriage must be specific on both sides. Archie v. State, 511 S.W. 2d 942 (Tex. Cr. App. 1974). In the case of Welch v. State, 151 Tex. Cr. R. 356, 207 S.W. 2d 627 (1948), it is said that stability and permanence are “vital” to common law marriages.

In McChesney v. Johnson, 79 S.W. 2d 658 (Tex. Civ. App. 1934), it was said that consistency was an essential requirement of common law marriages, and

[i]f the conduct of such contracting parties does not show clearly an honorable abiding by such agreement before the eyes of their world of associates and contacts, then it should not receive judicial sanction. (Emphasis added.)

Two early Arkansas decisions examining Texas common law marriages are Evatt v. Miller, 114 Ark. 84 (1914), and Darling v. Dent, 82 Ark. 76 (1907). Dicta from both opinions cite the requirement that the parties must agree presently to take each other as husband and wife and live “from that time on professedly in that relation.” (Emphasis added.)

Appellant has still another hurdle: At the time the alleged common law marriage began he was still married to Susan Frazier Renton and continued to be until April 28, 1976. He contends that no new agreement is necessary to validate the marriage after the impediment is removed, relying on Gorman v. Gorman, 166 S.W. 123 (1914) and Bull v. Bull, 29 Tex. Civ. App. 364, 68 S. W. 727 (1902). Both cases are distinguishable: In Gorman the couple continuously lived together as man and wife until the death of one, never knowing of any impediment to their marriage. In Bull, in contrast to the case before us, there was no evidence that the couple separated or resumed single status, or did anything inconsistent with a marriage status for 13 years until the death of one, four years after the impediment was removed.

We can find no evidence appellant and Ms. Caves ever cohabited in Texas after appellant’s divorce, nor any evidence from which a new agreement to be man and wife can be inferred. They did cohabit briefly in Seattle, Washington, after appellant’s divorce, but common law marriages are not recognized in that state. In re McLaughlin’s Estate, 30 Pacific 651. Clark on Domestic Relations, 2d Ed., Sec. 3, p. 67.

If more were necessary, we note that on more than one occasion after his arrest appellant was asked if he was married and answered “no.” It would be a gross distortion to say that a relationship as dubious as this one, clearly lacking in the essentials of stability, consistency and permanency, could rise to the level of marriage, either before or after the divorce, and we readily conclude that the trial court was correct in refusing to invoke the marital privilege. The purpose behind the marital privilege is to promote the permanency and solidarity of the marital union; to cloak this relationship with the protective sanctions of marriage would serve only an unworthy end.

II.

Appellant argues that the State failed to prove that Officer Hussey was acting in the line of duty as required by the Capital Murder Statute, Ark. Stat. Ann. § 41-1501 (1) (b) (Repl. 1977), citing Mullaney v. Wilbur, 421 U.S. 684 (1975), for the proposition that the State must prove every element of the charge and aggravating circumstance in enhancement of the degree of culpability, beyond a reasonable doubt. The State’s proof was sufficient.

The distinction between a police officer’s duty and his authority to make a lawful arrest is essential. Officer Hussey was not stripped of his capacity to act as a policeman in the line of duty merely by leaving the Springdale city limits. Since Officer Hussey could not testify, proof of the lawfulness of the stop of the International Travel-all is not available. Under these circumstances, any conclusion that Officer Hussey was authorized to act as he did pursuant to the Arkansas “fresh pursuit” statute is speculative, but nonessential. An abundance of evidence was presented from which the jury could conclude that Officer Hussey was acting in the line of duty. Hussey had gone on duty at midnight on December 20, 1975, and between the hours of 3 and 4 a.m. was on patrol. At 3:49 a.m. he reported to the Springdale radio dispatcher that he was stopping a vehicle bearing a Texas license plate numbered JEX966 for a traffic violation. Hussey made this report near the southern border of Springdale. Moments later his car was found, door open and lights flashing, about eight tenths of a mile south of the Springdale city limits but with Hussey missing. Officer Hussey was working in an area where he would be expected to be, the incident happened during his regular shift and he was engaged at the time in duties regularly performed and expected. Thus, the elements of time, activity and location, all coincide to support the conclusion that he was acting in the line of duty when the events began which led to his death. In Meyers v. State, 253 Ark. 38, 484 S. W. 2d 334 (1972), we held a policeman to be acting in the line of duty where he attempted an arrest for a misdemeanor while off-duty and working as a security guard. “He is, in a sense, on duty 24 hours a day, seven days a week. ...” Meyers, at 46. The obvious purpose of this statute is to protect the public generally by affording special protection to those who accept the ever-increasing hazards of police work. There can be no doubt that the circumstances surrounding the death of Officer Hussey were contemplated as coming under the language of this statute.

III.

Next, appellant alleges a pattern of violations by the State of Rule 17.1, A. R. Crim. P., Ark. Stát. Ann., Vol. 4A, 476, 477 (Repl. 1977) has deprived him of a fair trial. This rule obligates the State upon timely request to disclose the names and addresses of its witnesses and any statements attributed to the accused or a co-defendant. Earl v. State, 272 Ark. 5, 612 S. W. 2d 98 (1981); Dupree v. State, 271 Ark. 50, 607 S.W. 2d 356 (1980).

Rule 19.7 (1), Arkansas Rules of Criminal Procedure gives the trial court discretion to impose certain sanctions for noncompliance with a discovery order as follows:

(a) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant thereto, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems proper under the circumstances. (Emphasis added.)

Three specific violations are emphasized in appellant’s brief:

Appellant contends the State’s refusal to reveal the location of Ms. Caves and its delay in affording an opportunity to discovery testimony was prejudicial to his case. The record shows:

(1) The court arraigned Renton on August 24, 1978, and set trial for November 27, 1978 [R. 500] later changed to December 4, 1978;
(2) Renton filed a Motion For Discovery on August 29, 1978, asking for the names and addresses of witnesses, and the substance of oral statements made by Renton and co-defendants [R. 6-8];
(3) Two weeks later, the State answered Renton’s motion on September 11, 1978. The State did not list Connie Caves as a witness. The State said there were no oral statements made either by Renton or co-defendants to law enforcement officers [R. 10-16; Response to Bill of Particulars];
(4) On November 14, 1978, the State revealed that it would call Connie Caves [R. 345] as a witness;
(5) On November 21, 1978, continuance granted appellant;
(6) On June 23,1979, appellant afforded opportunity to interview Ms. Caves;
(7) On July 9, 1979, trial began.

Under Rule 19.7 (a), it is within the trial court’s discretion to employ any one of the listed sanctions or one of its own choosing where there is a failure to comply with discovery. Upon timely request, the trial court afforded appellant with an opportunity to interview Ms. Caves on June 23, 1979, sixteen days before the trial commenced. Appellee contends any failure to comply with discovery regarding Ms. Caves was properly remedied by the interview as a permissible sanction under Rule 19.7 (a). Rule 17.1 imposes a duty upon the state to disclose all material and information to which a party is entitled in sufficient time to permit his counsel to make beneficial use of it. Dupree v. State, supra; Williamson v. State, 263 Ark. 401, 565 S.W. 2d 415 (1978). Appellant has not shown any prejudice resulting from the delay in being allowed to interview Ms. Caves, nor did he move for continuance after their interview, claiming insufficient time to make beneficial use of the information received.

Appellant contends the circumstances surrounding his interview with Ms. Caves with officers of the FBI present prevented any chance he had of obtaining information helpful to the defense. Rule 17.1 only allows a criminal defendant the opportunity to discover the state’s testimony prior to trial. As this court stated in Dupree v. State, supra, “[A] defendant in a criminal case cannot rely upon discovery as a total substitute for his own investigation.” At page 55. Appellant argues no affidavit or other factual showing was made by the State indicating Ms. Caves feared for her safety and necessitating that the interview be under restrictive circumstances. Appellant cites no authority requiring such affidavit in this context. In reviewing the circumstances of this case, the source and reasonableness of Ms. Caves’ fears are so obvious that further factual showing is unnecessary. There are special considerations in this case: She was a “critical witness,” as characterized by appellant, in a capital murder case involving the execution-style killing of a police officer by a group whose only visible vocation was illicit. We believe fears for her safety were not unjustified and the precautions taken were not excessive.

B.

Donald Gunnarson testified that he was one of several FBI agents who arrested the appellant in Denver, Colorado. (T. 3880) He said at the time of the arrest the appellant stated “you caught me short” and something to the effect that the agents were fortunate that they weren’t hurt. (T. 3881) The prosecuting attorney admitted that by an oversight he had neglected to inform defense counsel of this statement prior to trial. (T. 3834, 3835) The trial court then held a Denno hearing out of the presence of the jury (T. 3841-3859) and allowed Gunnarson to testify to the statement. (T. 3881)

This action is claimed to require reversal. At first blush this evidence bears a strong resemblance to Earl v. State, supra, in which a nondisclosed statement of Earl affirming other inculpatory statements attributed to him was introduced to the surprise of the defendant. The prejudice was clear as Earl had denied the statements earlier on direct examination. Hence, his credibility as a witness was destroyed. In addition, a hearing on the voluntariness and admissibility of the undisclosed statement was not held.

Agent Gunnarson and the appellant gave different versions of appellant’s words: Gunnarson alleging appellant said “It is lucky you caught me short. Somebody should have been hurt.” [R. 3823) Appellant alleges he said “I am glad nobody got hurt.” At best, these versions are indistinct and susceptible of similar inferences; at worst they are equivocal and we consider the harm insufficient to overturn the judgment. They are, after all, essentially of the same effect as those Ms. Caves attributed to the appellant in her testimony. It was in the trial court’s discretion to suppress Gunnarson’s testimony for nondisclosure, Rule 19.7 (a); Brenneman and King v. State, 264 Ark. 460, 573 S. W. 2d 47 (1978) — and reversal is not required absent a showing of prejudice. Earl v. State, supra; Dupree v. State, supra. We find the likelihood of prejudice or abuse of discretion insufficient to require reversal.

C.

Appellant argues the State’s failure to provide current addresses for Debra Whisenhunt, Helen Vandandingham, Roger Whisenhunt and Bob Wise is ground for reversal. The record reveals Helen Vandandingham, the defense’s key witness, did indeed testify. Roger Whisenhunt was contacted a week before the end of trial by the defense but did not testify. The Whisenhunts divorced and Debra moved out of the state and could not be found by either party. Bob Wise, who had picked out appellant’s picture as driving the Travel-all, was never found. The State elicited testimony that he picked the appellant from a photograph. Appellant produced testimony from one witness that Wise’s description of appellant during the photo identification was doubtful and more descriptive of Carl Don McLaughlin. The State’s case implicates both men, Renton and McLaughlin, as being involved in this criminal episode and thus the description of McLaughlin as the driver of the Travel-all the day before the crime could be of no real significance. Consequently, the appellant has not shown the prejudice necessary for reversal.

IV.

Appellant contends that Exhibit 25 was hearsay and not the best evidence and his objection to its introduction should have been sustained. The exhibit is a handwritten copy of entries on the Springdale police radio log made by Officer Olin Stepp early on the morning of December 21. The log was later destroyed. We find no merit to the contention. The best evidence rule limits the evidentiary use of secondary evidence where the original itself is not unavailable. But here it is undisputed that the original of the radio log was destroyed, as appellant’s objection reflects: “Your Honor, I am going to object on best evidence grounds since the original has been destroyed.” [T. 3522] Rule 1004, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), permits the introduction of other evidence of the contents of writings, records or photographs where the original has been lost or destroyed or is in the hands of the opposing side and cannot be obtained. Beyond that, the exhibit simply duplicates identical evidence from numerous other sources on undisputed points, i.e. that Officer Hussey stopped a Travel-all near the city limits at 3:49 a.m. and that five minutes later Officer John Dickens reported that he could not find Officer Hussey at the scene. See Brenneman and King v. State, supra.

V.

Appellant contends that Ms. Alice Bradshaw, a prospective juror, should have been struck for cause rather than by a peremptory challenge of the defense. During voir dire examination Ms. Bradshaw acknowledged having read a news article of the previous day featuring the trial and referring to appellant as one of the FBI’s ten “most wanted” individuals. In the course of the inquiry the trial judge interjected to say that “[bjefore anybody can be arrested there must be what is called probable cause. The prosecuting attorney has to make probable cause, and from that a person is arrested. It does not mean that he is guilty at all. You have to know they do not go out there arbitrarily and arrest somebody. Nobody can be arrested unless there is probable cause.”

Whether the comment was inappropriate to voir dire is debatable, but it was, at most, inconsequential and any possible harm was offset by the words “[i]t does not mean that he is guilty at all.” Ms. Bradshaw’s responses during the voir dire interview give no indication that she was biased or would judge the case on anything other than the evidence. We find no error in the refusal to excuse Ms. Bradshaw for cause. Rowe v. State, 224 Ark. 671, 275 S.W. 2d 887 (1955).

VI.

The final point for reversal is that because Judge Mahlon Gibson acted to qualify some indeterminate part of the jury panel after the case was assigned to a special judge a reversal is required on jurisdictional grounds. We disagree. There is no evidence whatever that Judge Gibson took any part in these proceedings. There is merely a reference by Judge Cummings at a pretrial conference that some part of the j ury panel had been qualified by Judge Gibson pursuant to Ark. Stat. Ann. §§ 39-101 — 39-116, and that others had been excused. These sections of the statutes pertain to general qualifications of j urors and provide specific exemptions from service in the case of physicians, firemen, ministers, practicing attorneys and others. The qualifying process under this chapter of the code is general and perfunctory and does not relate to specific cases in any fashion. Further, counsel for the defendant gave affirmative approval to the proceedings: (T. 1222)

THE COURT: Now, I have talked to Judge Jameson and he has already qualified his jurors. The term started July the 1st.
MR. HORAN: Right.
THE COURT: New panel, and he has already qualified his jürors, I think yesterday, I believe. I think he had sixty-eight or sixty-nine (68-69) Put of a hundred and fifty (150), and Mahlon Gibson will be here Monday to qualify his panel. Their names are already drawn and subpoenaed to be here at 9:00 o’clock, so he will go ahead and impanel his and excuse whoever he has to for cause, sickness. So I will start in on his and then Jameson’s will be available Tuesday morning if we exhaust those in this division. Is there any objection to that?
MR. HORAN: No objection.

Evidently, several members of the panel had been excused by Judge Gibson but were examined by Judge Cummings as to their reasons for asking excusal, but before doing so Judge Cummings asked counsel for both the prosecution and the defense: (T. 1337)

THE COURT:____Any objections to my excusing any of these people?
MR. HORAN: No, your Honor.
MR. SMITH: No, your Honor.

Appellant argues that under Adams v. State, 269 Ark. 548, 601 S.W. 2d 881 (1980), objections to proceedings of this type are unnecessary. But there is a vast difference between the two situations. In Adams, the presiding judge actively participated in a proceeding including accepting guilty pleas to two felony charges where he and the attorney for the State were related within the degree proscribed by Canon 3C (1) (d) (ii) of the Code of Judicial Conduct. We held that under the wording of the Canon the judge should take the initiative in recusing himself, rather than placing that burden on the litigant. Nothing in Adams suggests that any jurisdictional flaw occurred in connection with this point.

Finally, this is an immense record — 21 volumes and 4,600 pages. We have studied the objections before the trial court noted by counsel for appellant and appellee and examined the record for other objections not argued on appeal and we find no prejudicial error.

The judgment is affirmed.

      See Cassell v. State, 273 Ark. 59, 616 S.W. 2d 485 (1981).


text:
    George Henry THORNE v. STATE of Arkansas
    CR 81-65
    622 S.W. 2d 178
    Supreme Court of Arkansas
    Opinion delivered October 12, 1981
    [Rehearing denied November 9, 1981.]

      Lessenberry & Carpenter, by: Thomas M. Carpenter, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant was convicted of aggravated robbery and sentenced to life imprisonment as an habitual offender in violation of Ark. Stat. Ann. §§ 41-1001, 2102 (Repl. 1977). We find no merit to the arguments raised on appeal.

On September 5,1978, a diamond ring valued at $500.00 was stolen from Wirt’s Jewelry Store in North Little Rock by a man later identified as the appellant. Appellant and Bobby Gene Long had gone to the shopping center where Wirt’s was located and appellant entered the store. He examined a diamond ring and discussed the price and terms with the sales clerk, Roy Doug House. Appellant left to shop elsewhere but said he would return. At about 2 o’clock that afternoon appellant came in again and asked to look at the ring outside in natural light. When he returned the clerk noticed the diamond ring had been replaced with an imitation. He confronted appellant who suggested he might have dropped the ring outside. The two went to look and when appellant ran Mr. House gave chase. Appellant drew a pistol, which he dropped and then retrieved, and got into the car driven by Long. An alert observer of these events, Randy Holland, followed the vehicle to Long’s residence and returned to report his information to the police. Appellant was arrested at his residence about 2:30 p.m. and was identified by several eyewitnesses from a photograph taken at the time of his arrest. At trial four witnesses, including Long, positively identified appellant as the robber.

Appellant first argues that the photograph was obtained from an illegal arrest and the trial court erred in not suppressing the in-court identification of appellant.

We believe the circumstances of this case would justify a warrantless arrest based upon exigent circumstances, recognized in Payton v. New York, 445 U.S. 573 (1980), or upon the “fresh pursuit” exception as defined in Ark. Stat. Ann. § 43-502 (Repl. 1977). In any event, the appellant has not shown the arrest in this instance was not based upon “reasonable cause” under Rule 4.1 (a) (i) of the Arkansas Rules of Criminal Procedure. See also Sanders v. State, 259 Ark. 329, 532 S.W. 2d 752 (1976). As appellee points out, on appeal the legality of an arrest is presumed and the burden of establishing illegality is on the appellant. Brewer v. State, 271 Ark. 810, 611 S.W. 2d 179 (1981); Sanders v. State, supra.

Even if it could be said the warrantless arrest was without reasonable cause or not within the fresh pursuit or exigent circumstances exceptions, suppression of the in-court identification is not warranted in light of United States v. Crews, 445 U.S. 463, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980). In Crews, the defendant’s photograph was taken by the police pursuant to an admittedly illegal arrest. After the defendant’s release this photograph was used by the police and shown to three victims who identified him as their assailant. The trial court found the victims’ ability to identify the defendant in court was based upon independent recollection “untainted by the intervening identifications” and therefore such testimony was admissible. Crews, at 468.

Appellant contends that Crews is distinguishable in that the police had no such means of identifying appellant at the time of his arrest as were present in Crews. But this assertion is not borne out by the record and is not relevant to the issue. At trial three eyewitnesses identified the appellant based on their, observations of the events at the store. Also, appellant’s companion, Bobby Gene Long, as a witness for the State, testified that he drove appellant to the jewelry store that morning and again in the afternoon and waited in the car. The language of the United States Supreme Court in Crews is relevant:

Nor did the illegal arrest infect the victim’s ability to give accurate identification testimony. Based upon her observations at the time of the robbery, the victim constructed a mental image of her assailant. At trial, she retrieved this mnemonic representation, compared it to the figure of the defendant, and positively identified him as the robber. No part of this process was affected by respondent’s illegal arrest. In the language of the “time-worn metaphor” of the poisonous tree, Harrison v. United States, 392 U.S. 219, 222, -20 L. Ed. 2d 1047, 88 S. Ct. 2008 (1968), the toxin in this case was injected only after the evidentiary bud had blossomed; the fruit served at the trial was not poisoned. (Emphasis added.) 445 U.S. at 472, 63 L. Ed. 2d at 546.

At issue is not whether the police had the means of appellant’s identification at the time of his arrest but whether the witnesses’ ability to identify him at trial was based upon independent recollection untainted by the intervening photographic identification. The circumstances here fully support the conclusion that these witnesses had an adequate opportunity to observe the appellant under such conditions as to render their in-court identification reliable. In Wright v. State, 258 Ark. 651, 528 S.W. 2d 905 (1975), we cited United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), for the criteria to be used in determining whether an in-court identification is based on independent observation or, rather, is based on line-up or photographic identification:

. . . the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. 388 U.S. at 241, 18 L. Ed. 2d at 1165.

Secondly, appellant contends that the trial court erred in not instructing the jury that Bobby Gene Long was an accomplice as a matter of law. The court did submit that issue to the jury by the appropriate AMCI instruction and its refusal to give a binding instruction on that issue was correct in light o£ Long’s testimony that he had no knowledge of the scheme. See Odom v. State, 259 Ark. 429, 533 S.W. 2d 514 (1976); Russey v. State, 257 Ark. 570, 519 S.W. 2d 751 (1975). Besides, even if Long’s status as an accomplice was undisputed, there was ample testimony from other witnesses implicating the appellant.

Affirmed.


author: Per Curiam.

text:
    In Re: Petition of Ralph T. Shannon For Readmission to the Bar of Arkansas
    81-84
    621 S.W. 2d 853
    Supreme Court of Arkansas
    Opinion delivered October 21, 1981

      Davis & Bracey, P.A., by: Charles E. Davis, for appellant.

      State Board of Law Examiners, by: Phillip E. Dixon, for appellee.
   Per Curiam.

On September 20,1974, this court accepted the voluntary surrender of petitioner’s license to practice law in the State of Arkansas. On January 21,1975, petitioner, on a plea of nolo contendere, was found guilty on two counts of embezzlement and received concurrent sentences of ten years with all but three years suspended. He was paroled in August, 1975, and two years later was discharged from parole. In May, 1980, he was granted a pardon by the governor, based upon the recommendation of the Board of Pardons and Paroles.

Shannon petitioned the State Board of Law Examiners for reinstatement on August 28, 1980, pursuant to the Rules Governing Admission to the Bar, Rule 13, Ark. Stat. Ann. Vol. 3A (Supp. 1981). A subcommittee of the State Board of Law Examiners conducted a hearing on December 29, 1980, and submitted a transcript of the proceedings to each member of the Board without comment. On March 19,1981, the Board, in written findings of fact, found the sequence of events as above enumerated and, also, that petitioner has not made complete restitution (approximately $17,500) to the former client. The Board held that petitioner has failed to meet the burden of proving eligibility for readmission as required by Rule 13. Hence this appeal.

On appeal the findings of the Board are reviewed de novo upon the record. Rule 13. Disbarment proceedings are civil in nature, are governed by rules applicable to civil proceedings and the allegations of a complaint must be proved by a preponderance of the evidence. Weems v. Court Committee on Professional Conduct, 257 Ark. 673, 523 S.W. 2d 900 (1975); and Hurst v. Bar Rules Committee, 202 Ark. 1101, 155 S.W. 2d 697 (1941). Here it follows that proceedings in a petition for reinstatement are also civil in nature. Rules of Civil Procedure, Rule 52, Ark. Stat. Ann. Vol. 3A (Repl. 1979) provides that "[fjindings of fact shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence) . . . . ” We think this standard of review is applicable here.

Petitioner was admitted to the bar upon graduation from law school in April, 1965. He attributes his misappropriation of a client’s funds to the traumatic experience when his then wife required extensive psychiatric treatment following the birth of their son in 1968 and the attendant expenses. This marriage ended in divorce in 1972. There was another unsuccessful marriage of short duration. However, his marriage (to his present wife) in 1973 survived his emotional and financial problems and his imprisonment. She corroborated his rehabilitation. There are three children. Petitioner made a voluntary disclosure of his wrong doings to the authorities. Since his imprisonment, he has worked at various jobs; i.e., a carpenter, selling farm equipment, where he was entrusted with large sums of money, and is presently employed by the Ozark Legal Services as Director of Community Education. He has become an ordained minister. His employers are highly complimentary and recommended reinstatement. Other witnesses attested to his rehabilitation with respect to his good moral character and mental and emotional stability.

The committee received numerous letters from the public, lawyers and judges in response to its inquiry as to petitioner’s fitness to practice law. He received support from his supervisor and co-workers at Ozark Legal Services, as well as from many lay persons, attorneys and business men in the community. However, the committee also received letters from this segment opposed to the reinstatement. Most of them, including judges, stated they could not recommend nor consider reinstatement until petitioner made restitution. At the committee hearing on December 29, 1980, petitioner had only made partial restitution, due to his limited income, to the estate from which he embezzled funds. Since the hearing, however, he has effected a settlement with the estate and received a release satisfying the judgment against him on the indebtedness. However, he has not paid the Arkansas Bar-Client Security Fund any of the $5,000 it paid to the estate to cushion its loss. Although there is some indication that his inattention and neglect of his practice during 1970-1974 resulted in some indebtedness to other clients, there is no formal complaint to substantiate this.

A disbarment proceeding is not for the purpose of punishment, Maloney v. State, 182 Ark. 510, 32 S.W. 2d 423 (1930), and neither is a proceeding for readmission to the bar. The overriding considerations on the question of readmission are the public interest, the integrity of the bar and the courts with due consideration to the rehabilitation of the petitioner with respect to good moral character and mental and emotional stability.

After reviewing the record de novo, we cannot say the Board’s finding that petitioner had failed to meet his burden in establishing his eligibility for reinstatement to the bar was clearly erroneous.

Affirmed.

Dudley, J., not participating.


author: George Rose Smith, Justice.

text:
    Carlos Reed BRANHAM v. STATE of Arkansas
    CR 81-63
    623 S.W. 2d 1
    Supreme Court of Arkansas
    Opinion delivered October 19, 1981
    [Rehearing denied November 23, 1982.]

      Gibbs ir Hickam, P.A., by: D. Scott Hickam, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

On September 13, 1980, the appellant shot and killed Bill Allen and shot and so wounded Dickie Walker that Walker was permanently blinded. The crimes occurred at Donaldson in Hot Spring county, but after a change of venue the case was tried in Saline county. The jury found Branham guilty of the four felonies charged and sentenced him to serve 40 years for first-degree murder, 20 years for first-degree battery, 5 years for possession of a firearm by a felon, and 2 years for theft of property. The judge directed that the sentences be served consecutively. Various assignments of error are argued.

The crimes took place after midnight at a service station in Donaldson, where youths in their teens and early twenties were in the habit of drinking together. At such a gathering that night several youths had been drinking whiskey and beer. The evidence justified the jury in finding that a scuffle involving a knife took place between Walker and Branham. Branham ran away, with Walker shouting that he would beat the hell out of Branham if he ever caught him. Branham actually went home, got a shotgun belonging to his uncle, and over his uncle’s protest returned to the service station. There, with little or no provocation, he began shooting, killing Allen and seriously wounding Walker by a total of three shots fired at close range. No one else in the group appears to have been armed with anything more dangerous than a pocket knife when Branham returned.

There is no merit in the arguments that the trial judge should have directed a verdict of not guilty on the charges of first-degree murder and first-degree battery and should have submitted an instruction on the lesser offense of second-degree battery. It was for the jury to say whether Branham acted with premeditation and deliberation in returning to the scene with a shotgun and killing Allen. There was no rational basis for a finding that Branham intended to cause merely physical injury rather than serious physical injury when he shot Walker in the face with a shotgun at close range; so the court properly submitted the offense of first-degree battery and refused to submit second-degree battery. AMI Criminal, AMCI 1601 and 1602 (1979). It is enough to say that counsel’s detailed arguments on these questions were proper matters for presentation to the j ury, but they do not call for a reversal on appeal.

The felony charge of theft of property worth more than $100 was based upon Branham’s having finally left the scene in a vehicle belonging to someone else. The State, without regard to the issue of Branham’s felonious intent, concedes that there is no proof of the vehicle’s value; so the felony conviction cannot be sustained. Rogers v. State, 248 Ark. 696, 453 S.W. 2d 393 (1970). We are asked to reduce the judgment to the misdemeanor of unauthorized use of another’s vehicle. Ark. Stat. Ann. § 41-2208 (Repl. 1977). A class A misdemeanor, however, carries no minimum sentence of confinement, § 41-901, and in any event it would be pointless to impose a jail sentence after penitentiary sentences totaling 65 years. We reverse this part of the judgment and dismiss the charge.

The prosecution called the defendant’s uncle as a witness, apparently to show that Branham had said before going back to the service station that he was going to kill somebody, but the witness did not remember such a statement. At the close of the witness’s testimony the State acquiesced in a defense!motion that all that testimony be disregarded by the jury. Upon the court’s granting that motion the defense further moved for a mistrial on the ground of prosecutorial abuse in that the prosecutor had put the witness on the stand with no intention of eliciting helpful evidence. No abuse of discretion is shown in the court’s denial of a mistrial. The trial judge was manifestly in a better position than we are to determine whether the prosecutor acted in good faith and whether justice could not be served by a continuation of the trial. Johnson v. State, 254 Ark. 293, 493 S.W. 2d 115 (1973).

Finally, it is argued that the court should have granted a continuance on the day of trial. Counsel concede that the granting of continuances is primarily within the discretion of the trial court and that an appellant has the burden of proving a clear abuse of that discretion. Freeman v. State, 258 Ark. 496, 527 S.W. 2d 623 (1975). Defense counsel had been appointed about three months before the trial on December 29, 1980. On December 22 the court considered counsel’s various grounds for a continuance and denied the motion. At that time counsel stated that he did not anticipate any further motions for continuance. The motion was actually renewed on the morning of the trial, primarily on the ground that Branham’s mental capacity had not been thoroughly explored. That ground, however, had been considered and rejected by the court only a week earlier, after the introduction of expert testimony. There is in fact no substantial indication in the record that Branham suffered from a mental disease or defect within the provisions of the statute, § 41-601, or that he lacked the necessary fitness to stand trial. § 41-603. We find no abuse of discretion in the denial of the continuance.

Affirmed in part, reversed in part.