author: Conley Byrd, Justice.

text:
    Wanda KING v. Harry WESTLAKE
    78-112
    572 S.W. 2d 841
    Opinion delivered November 13, 1978
    (Division II)

      Wright, Lindsey & Jennings, for appellant.

      Haskins, Eubanks & Wilson, by: Gary Eubanks, for appellee.
   Conley Byrd, Justice.

For reversal of a $15,000 judgment in favor of appellee, Harry Westlake, arising out of a rear-end automobile collision, the appellant, Wanda King, who has only $10,000 in liability insurance coverage, makes the two contentions hereinafter discussed.

Her first contention is that the trial court erred in ordering her to permit appellee to present the testimony of his medical witness by means of a videotaped deposition. To support her contention appellant argues that the law does not provide for the recording and presenting of a deposition by videotape and that the presentation of the videotape left the jury with the impression that the witness’ testimony was more significant than it really was. We find no merit to either argument.

Ark. Stat. Ann. § 28-104 (Repl. 1962) provides:

“The testimony of witnesses is taken in three modes:
First. By affidavit.
Second. By deposition.
Third. By oral examination.”

Ark. Stat. Ann. § 28-105 (Repl. 1962) provides:

“An affidavit is a written declaration under oath, made without notice to the adverse party.”

Ark. Stat. Ann. § 28-106 (Repl. 1962) provides:

“A deposition is a written declaration under oath, made upon notice to the adverse party, for the purpose of enabling him to attend and cross-examine; or upon written interrogatories.”

Ark. Stat. Ann. § 28-107 (Repl. 1962) provides:

“An oral examination is an examination in the presence of the tribunal which is to decide the fact, or to act upon it, the testimony being heard by the tribunal from the lips of the witness.”

The Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (1976 Supp.) provide:

“Rule 102. Purpose and Construction. — These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence, to the end that the truth may be ascertained and proceedings justly determined.”
“Rule 103. Rulings on Evidence. — (a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected, ...”

The statute upon which appellant relies is Ark. Stat. Ann. § 28-352 (Reph 1962) which provides:

“Depositions upon oral examination. — (a) NOTICE OF EXAMINATION: TIME AND PLACE. A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time.
(c) RECORD OF EXAMINATION: OATH: OBJECTIONS. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically and transcribed unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officer, who shall propound them to the witness and record the answers verbatim.”

The record here shows that in addition to permitting the videotape of the medical evidence, appellee took the precaution of also introducing the stenographically transcribed testimony.

Our law, Ark. Stat. Ann. § 28-348 (Repl. 1962), as does the law of most other common law jurisdictions, readily recognizes that in matters involving credibility of witnesses it is the better practice for the witnesses to testify orally before the tribunal which is to decide the facts. Since the use of a videotape is the best substitute for permitting testimony being heard by the trial tribunal from the lips of a witness, we are not in a position to say that the trial court abused its discretion in permitting the deposition of the medical witness by videotape instead of having the stenographically transcribed testimony read to the jury. Such action on the part of the trial court is certainly within keeping of the Uniform Rules of Evidence’s admonition that the rules of evidence shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of the law of evidence. Other courts have likewise reached the same result, Lucas v. Moss, 498 S.W. 2d 280 (Mo. 1973).

With respect to appellant’s contention that “the obviously costly and elaborate lengths to which the [appellee] went to record and present the deposition on videotape left the jury with the impression that Dr. Hundley’s testimony was more significant than it really was, ” we are not in a position to second guess the trial court — appellant has not shown the costs involved and did not designate the videotape as a part of the record.

Appellant also contends that the trial court erred in permitting counsel for appellee to ask potential jurors whether they had liability insurance and whether they believed the size of jury verdicts in personal injury cases affects automobile liability insurance premiums.

The record shows that for some time preceding the trial date a number of liability insurance companies had run advertisements in Time, The Wall Street Journal and the Smithsonian Institute magazine aimed at jurors in general to the effect that jurors themselves were affected by the verdicts they rendered in that such verdicts resulted in increased premiums.

On voir dire by appellee’s counsel and in response to questioning a number of potential jurors responded that they had read Time, The Wall Street Journal, or the Smithsonian Institute magazine. All but two of the jurors indicated that they had seen one or more of the advertisements. Thereafter, as abstracted by appellant, the record shows:

“Mr. Eubanks continued:
It is improper for either side to imply or suggest that the defendant does or does not have insurance, and the questions I will now direct to you have nothing to do with whether or not the defendant has insurance. The questions I will ask concern your insurance premiums, not insurance in this case. How many of you believe that jury verdicts affect insurance premiums?
Your insurance premiums may not be affected greatly one way or the other, but will not the verdicts that you render have some effect on your insurance rates?
Venireman Gerald Hudgens responded: Yes.
Mr. Eubanks continued:
The question I have been building up to is this: Assuming that the verdict you render could cost you a little more or a little less money on your insurance premiums, can you listen to the testimony, the statements of counsel, and the instructions and then put aside the financial interest you have in this case because of your insurance premiums and render a verdict? (All jurors raised their hands.)”

The voir dire of the jury was obviously in good faith and as such was proper. See Dedmon v. Thalheimer, 226 Ark. 402, 290 S.W. 2d 16 (1956), where we held the purpose of voir dire examination is to enable counsel to ascertain whether there is ground for a challenge of a juror for cause, or for a peremptory challenge and that so long as counsel acts in good faith, he may, in one form or another, question prospective jurors respecting their interest in or connection with liability insurance companies.

Appellant, while recognizing the rule set forth in Dedmon v. Thalheimer, supra, states:

“Although the plaintiff’s attorney tried to characterize his voir dire questioning as a search for the juror prejudice, the information he elicited by the questioning was of no value in determining whether the jurors had any real financial interest in the outcome of the case or any prejudice that would prevent their returning a fair verdict. What his questioning did accomplish was the thing this Court has never allowed: the implanting in the minds of the jurors the fact that the defendant had liability insurance. Even though the attorney cautioned the potential jurors that they should not interpret his questioning as indicating that the defendant did or did not have liability insurance, it was inevitable that the jurors would infer that she did.”

During oral argument counsel for appellant was questioned extensively about this contention. He has not pointed to any portion of the record that he did not abstract and we have copied his abstract in full. Based upon the record as it is presented to us, we have been unable to follow appellant’s contention that the voir dire by appellee’s counsel inevitably indicated to the jurors that appellant had insurance — i.e. appellant’s conclusion is not sustained by the record.

Affirmed.

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


source: Caselaw Access Project

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

license: Public Domain

text:
    Alfred D. HARKNESS v. STATE of Arkansas
    CR 78-107
    572 S.W. 2d 835
    Opinion delivered November 13, 1978

      Frank C. Elcan, II, for appellant.

      Bill Clinton, Atty. Gen., for appellee.
   Conley Byrd, Justice.

This is a motion by petitioner Alfred D. Harkness for a rule on the Clerk to file a record tendered two days late — i.e. on the 92nd day. Attached to the motion is the affidavit of Frank C. Elcan II, the Deputy Public Defender for Crittenden County from which it appears that he, as attorney for Petitioner, had inadvertently miscalculated the 90 day limit for filing appeals in this Court. The authorities Blanchard v. Brewer, 429 F. 2d 89 (8th Cir. 1970), hold that the denial of an appeal for such causes amounts to a denial of a constitutional right, on the theory that such a miscalculation, although honestly made, amounts to ineffective assistance of counsel.

The State has not controverted the affidavit of Frank C. Elcan II. Consequently, we must accept the assertions in the affidavit as true for purpose of hearing this motion.

Since to deny the Motion for a Rule on the Clerk would furnish grounds for Petitioner to obtain a new trial in a post-conviction proceeding, we as a pragmatical matter must grant the motion to docket the record as a belated appeal.

Rule granted.

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting. I respectfully disagree with the majority. I would deny the motion and let the matter proceed in another manner.

First I should point out that we have denied such motions where a defendant was represented by a retained attorney; at the same time we have in the past granted the motion where counsel was appointed. I have failed, and still fail, to see the distinction. I do not believe that due process of law can make such a distinction. I hope and trust the majority will in the future not make such a distinction.

Even so, we should not pre-judge that counsel in this case was ineffective — a kind word for negligent. That may not be the case.

All lawyers are expected to know how to, and be able to, perfect an appeal. In civil cases we have rigidly adhered to our rule that “ineffectiveness” is no excuse for failing to perfect an appeal. Bernard v. Howell, 254 Ark. 828, 496 S.W. 2d 362 (1973).

I would agree that a criminal defendant should not be denied an appeal for the same reason because obviously the results can be terribly unjust and the remedy against ineffective counsel would, in most bases, be unsatisfactory. In other words, in a civil case counsel can be sued for money damages for negligence. It would not do a criminal defendant, incarcerated in the penitentiary for several years, much good to know that he could sue his lawyer for damages. Denial of freedom is not something that can be measured in dollars and cents.

A decision of ineffectiveness of counsel should be made by a trial court at a hearing with proper notice. Such a hearing would place the responsibility where it should lie, at the feet of counsel — whether hired or appointed. I would concede that such a procedure would require that we change our rules to permit an appeal if the trial court finds such ineffectiveness prevented a defendant from appealing. That would be a simple matter, amending Rules of Crim. Proc., Rule 37 (1976).

Such a procedure would permit the matter to be heard in an orderly and evenly fashion. Here we are presuming negligence without first giving counsel a hearing.

There is the additional matter that being counsel, whether retained or appointed, carries with it serious responsibilities that must be borne. How to perfect an appeal is something that all lawyers should know and be able to do, and those who do not, or cannot do so, because of ineffectiveness, should rightfully bear the blame and any extra expense.

There is the additional factor of what we will do when a record is tendered thirty or ninety days late. I suppose we will permit the appeal. We have made a rule, and it is a good one, that all trial records must be tendered to the clerk within ninety days after judgment. We are simply ignoring that rule. I might accept the majority’s decision with more grace if we would simply repeal the rule. If we are not going to enforce a rule, then we owe it to the bench, the bar and the public to repeal it.


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

text:
    Robert GRAYS v. STATE of Arkansas
    CR 78-119
    572 S.W. 2d 847
    Opinion delivered November 13, 1978
    (In Banc)

      John W. Achor, Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

After finding appellant Robert Grays guilty of burglary, the jury again retired and, after finding that he was a habitual criminal, set his punishment at 20 years in the Department of Correction. The only point raised on this appeal is appellant’s contention that the lower court erred in failing to instruct on the lesser degrees of Breaking and Entering, Ark. Stat. Ann. § 41-2003 (Repl. 1977) and Criminal Trespass, Ark. Stat. Ann. § 41-2004 (Repl. 1977).

The record shows that appellant was an employee of Moss Seed Company. On Sunday, July 31, 1977, when the seed company was not open for regular business but while a construction crew of a private contractor was working on the premises, appellant went into the building to get a coke. While drinking the coke appellant had a conversation with one Taylor, a supervisor or foreman with the construction crew. When Robert Crick, the assistant manager of the seed company went by to check on the construction being done, he, after talking with Taylor, made a thorough check of the seed company’s premises. He found that a pin on the inside of a door had been removed so that entrance could be obtained from the outside. After a conference with the Little Rock Police, burglary investigator Horace L. Walters and Detective David Rowan set up a surveillance inside the seed company. Sometime around 11:30 p.m. appellant opened the door and entered the premises. The officers shined a light on appellant informing him at the same time that they were police officers and that he should freeze. Instead of obeying the officers, appellant ran, eluding not only the officers but the shots fired from a shot gun and Detective Rowan’s pistol. Since the officers recognized appellant they later went to his home within less than a half a mile of the seed company and arrested him. Appellant’s signed confession corroborates all of the testimony of the State except the shooting.

Chapter 20 of the Arkansas Criminal Code, Ark. Stat. Ann. § 41-2001, et seq. (Repl. 1977) provides:

“§ 41-2002. BURGLARY. — (1) A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.
(2) Burglary is a Class B felony.
§ 41-2003. BREAKING or ENTERING. — (1) A person commits the offense of breaking or entering if for the purpose of committing a theft or felony he enters or breaks into any building, structure, vehicle, vault, safe, cash register, money vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box or other similar container, apparatus, or equipment.
(2) Breaking or entering is a Class D felony.
§ 41-2004. CRIMINAL TRESPASS. — (1) A person commits criminal trespass if he purposely enters or remains unlawfully in or upon a vehicle or the premises of another.
(2) Criminal trespass is a class B misdemeanor if the vehicle or premises involved is an occupiable structure. Otherwise, it is a class C misdemeanor.
§ 41-2001 provides:
As used in this Chapter unless the context plainly requires otherwise:
(1) ‘Occupiable structure’ means a vehicle, building or other structure:
(a) where any person lives or carries on a business or other calling, or . . .
(2) ‘Premises’ means occupiable structures and any real property.”

The commentary to § 41-2002, supra, and § 41-2003, supra, points out that the distinction between the two sections has to do with the fact that the Commission felt that the invasion of occupiable structure — i.e., the invasion of premises under circumstances likely to terrorize or pose a threat to the safety of persons — required a stiffer penalty than the mere breaking or entering set out in § 41-2003, supra, that was designed to protect property rather than people. The commentary to § 41-2003 specifically states:

“. . . all burglaries as defined by § 41-2002 will by definition constitute breaking or entering. Consequently, the availability of the lesser offense may prove to be a useful plea bargaining tool in some cases. . . .”

The commentary to § 41-2004, CRIMINAL TRESPASS states:

“An offense is committed under this section when the actor without license or privilege enters the premises or vehicle of another. Entry completes the crime; no purpose to engage in further unlawful conduct is necessary. This section applies to a wide range of circumstances. An example of conduct constituting an offense is a transient entering premises or a vehicle in order to have a comfortable place to drink, sleep, or otherwise engage in activities not in themselves criminal. . . .”

Thus we see that the offenses of Breaking or Entering and of Criminal Trespass are both lesser included offenses in the crime of Burglary. However, the Arkansas Criminal Code, Ark. Stat. Ann. § 41-105(3) (Repl. 1977), with respect to lesser included offenses, provides:

“The Court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.”

In Barksdale v. State, 262 Ark. 271, 555 S.W. 2d 948 (1977), we had before us the question of whether a person prosecuted for burglary under § 41-2002, supra, was entitled to an instruction on the lesser included offense of Breaking or Entering, § 41-2003, supra. We there looked to the nature of the premises and after determining that the building involved was an “occupiable structure,” we held that the trial court did not err in refusing to instruct on the lesser included offense of Breaking or Entering. In so doing we pointed out that there was no issue to go to the jury on the nature of the building. Likewise here the Moss Seed Company qualified as an “occupiable structure” within the meaning of the Burglary offense § 41-2002, supra, and there would be no rational basis for the jury to find otherwise.

Probably the closest issue in this case is whether appellant was entitled to have the jury instructed on the lesser included offense of Criminal Trespass, § 41-2002, supra, i.e., was there a rational basis for a verdict acquitting him of the Burglary offense and convicting him of Criminal Trespass. The facts here show that appellant entered the premises on Sunday, July 31, 1977, around 1:30 p.m. when he got a cold drink and lifted the pin from the door. He again entered the premises stealthily in the night around 11:30 p.m. when if he had waited eight hours he could have lawfully entered for the purpose of going to work. Neither can it be said that he was entering for the purpose of finding a comfortable place to drink or sleep for he lived within five minutes’ walking distance of the Moss Seed Company. Even when we consider the facts in the light most favorable to appellant, we can find no rational basis for a verdict acquitting appellant of the offense of Burglary and convicting him of the Criminal Trespass offense. As stated in Ex parte Seyfried, 74 Idaho 467, 264 P. 2d 685 (1953), and 13 Am. Jur. 2d Burglary § 52, the fundamental theory, in absence of evidence of other intent or explanation for breaking or entering an occupiable structure at night, is that the usual object or purpose of burglarizing an occupiable structure at night is theft. Consequently, we must conclude that the trial court did not err in refusing appellant’s requested instruction on the lesser included offense of Criminal Trespass.

However, we again reiterate our caution in Barksdale v. State, supra, that the trial court would not have erred had it given the instructions requested. As pointed out in 23A C.J.S. Criminal Law § 1288(c), it is always a delicate matter for a court to determine the state of evidence as a matter of law and to withhold from the jury the right to find the defendant guilty of a lesser included offense.

Affirmed.

Fogleman, Hickman and Howard, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I respectfully dissent because I think that appellant was entitled to an instruction on a lesser offense, i.e., criminal trespass, as defined by Ark. Stat. Ann. § 41-2004 (Repl. 1977). It is clear that there is no direct evidence to indicate what appellant intended to do after his unlawful entry into the “occupiable structure.” After his arrest, appellant made a statement to the police. There is nothing in that statement indicative of his purpose or intent. Grays said that he slid out the door when he saw the office door open and knew someone was in the building. There is no indication in the statement that he knew these persons were police officers.

One essential element of the offense or burglary is “the purpose of committing therein any offense punishable by imprisonment.” Ark. Stat. Ann. § 41-2002 (Repl. 1977). I concede that the jury could probably infer from the circumstances surrounding the entry that Grays did intend to commit some offense punishable by imprisonment. See Selph v. State, 264 Ark. 197, 570 S.W. 2d 256; King v. State, 256 Ark. 778, 510 S.W. 2d 876. Still, the evidence of intent or “purpose” was circumstantial only. Perhaps Grays had already committed a separate and independent crime elsewhere and had planned to hide at his place of employment to escape detection, or he might have left a disguise or implement there that he intended to use in a crime he planned on other premises, so he would have easy access to it. Perhaps, for some reason, he was resorting to use of the structure as a place to sleep to avoid or postpone unpleasantness at home. Perhaps, he was attempting to find and retrieve property of his own that he suspected had been concealed on the premises by someone else, or he might have secreted intoxicating'liquors on the premises to which he wanted access at a late hour. Maybe he wanted to be able to use a telephone away from home. Innumerable examples could be given of purposes that could not bring about punishment by imprisonment. He might even have expected to commit an act which constituted only a violation as defined by Ark. Stat. Ann. § 41-114 (Repl. 1977).

The burden was upon the state to show that Grays made the entry with the specific intention of committing an offense punishable by imprisonment. See Hicks v. State, 231 Ark. 52, 328 S.W. 2d 265. The question of the intention of a burglar is usually established by circumstantial evidence from which a jury can draw reasonable inferences. Duren v. State, 156 Ark. 252, 245 S.W. 823; Clay v. State, 236 Ark. 398, 366 S.W. 2d 299; Scates & Blaylock v. State, 244 Ark. 333, 424 S.W. 2d 876. See also, King v. State, 256 Ark. 778, 510 S.W. 2d 876. Whatever appellant’s purpose may have been, inferences to be deduced from his conduct were exclusively for the jury, and not for the trial judge. Burgess v. State, 206 Ark. 157, 174 S.W. 2d 239; Shoop v. State, 209 Ark. 498, 190 S.W. 2d 988. The reasonableness of inferences to be drawn is one of the questions solely within the province of the jury. Reynolds v. State, 211 Ark. 383, 200 S.W. 2d 806. In Cassady v. State, 247 Ark. 690, 447 S.W. 2d 144, in speaking of proof of intent as a necessary element of a crime, we had this to say:

*** Criminal intent or purpose is a fact which cannot, in the nature of things, be positively known to others. It is an inference of fact that a jury may draw from the facts and circumstances existing and shown. Shell v. State, 184 Ark. 248, 42 S.W. 2d 19. The existence of the requisite intent is a question of fact for the jury when the evidence shows facts from which it may reasonably be inferred. Huie v. State, 139 Ark. 241, 213 S.W. 380.

Determining whether the circumstantial evidence was sufficient basis for an inference that Grays ’ purpose was to commit an offense punishable by imprisonment was a question for the jury, not the trial judge. Thompson v. State, 177 Ark. 1, 5 S.W. 2d 355; Camp v. State, 144 Ark. 641, 215 S.W. 170. It was for the jury to say whether the circumstantial evidence excluded every reasonable hypothesis other than the guilt of the defendant. Upton v. State, 257 Ark. 424, 516 S.W. 2d 904; Williams v. State, 260 Ark. 457, 541 S.W. 2d 300. When the intruder is frightened away as soon as his presence is discovered, his intention cannot be said to be incontrovertibly established. Hicks v. State, supra. Yet the trial judge refused to give the instructions on any lesser included offense on the basis that the conduct did put the matter beyond controversy. The trial judge said:

I don’t know how you can get anything but burglary out of it. If you can, you have a better imagination than I have. I have to take the State’s testimony as being true, and here’s a man that’s got no business in a place coming in at midnight. I don’t think you have to prove anything further than that. What does the statute say?

A further statement by the trial judge clearly shows that he did draw an inference from the testimony as to appellant’s purpose, viz:

Well, what business does a man, who works there in the day time, being in a man’s place at 1:00 or 2:00 o’clock in the morning, running away from the police and getting shot at? If they want to believe it out there, it suits me, but you are overruled. Save your exceptions. [Emphasis mine.]

It must be remembered that the state must prove every material element of the offense charged beyond a reasonable doubt. Dillard v. State, 260 Ark. 743, 543 S.W. 2d 925; Moore v. United States, 429 U.S. 20, 97 S. Ct. 29, 50 L. Ed. 2d 25 (1976). This is required by the due process clause of the Fourteenth Amendment to the United States Constitution. Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977). The question of reasonable doubt is a question for the jury alone, particularly when the evidence is circumstantial. Graves v. State, 236 Ark. 936, 370 S.W. 2d 806; Ayers v. State, 247 Ark. 174, 444 S.W. 2d 695. Obviously, this factor was overlooked by the trial judge and is being overlooked by the majority. The jury certainly could have found that the state had failed to meet its burden of showing beyond a reasonable doubt that Grays entered the occupiable structure with the purpose of doing anything that constituted an offense punishable by imprisonment. As pointed out in Ayers, where circumstantial evidence is relied upon, it is not sufficient that it raises a mere suspicion of guilt; it must establish facts inconsistent with innocence. The fact that Grays elected not to testify or to adduce evidence on the question of his purpose after entry is of no consequence, “in view of the elementary proposition that the prosecution bore the burden of proving beyond a reasonable doubt every element of the charged offense.” Moore v. United States, supra.

The jury was left without any option except to find Grays guilty of burglary, or nothing at all. This should not have been the case. The jury should have had the option of considering a lesser offense, of which Grays, by his own statement, was obviously guilty. An instruction on a lesser offense is warranted when they are of the same generic class, all of the elements of the lesser offense are included in the greater one, so that the commission of the greater offense must involve the commission of the lesser and the charge contains all substantive allegations necessary to let in proof of the lesser. Fike v. State, 255 Ark. 956, 504 S.W. 2d 363. This case warranted the giving of an instruction on a lesser offense. It did not warrant the giving of an instruction on the offense of breaking or entering. The evidence would not permit any finding that the place was not an occupiable structure, even if all the other elements of that lesser offense can be said to have been shown. See Barksdale v. State, 262 Ark. 271, 555 S.W. 2d 948. But in that case, there was no contention that an instruction on criminal trespass should have been given. Here, such an instruction was requested and should have been given.

There are two types of criminal trespass. Ark. Stat. Ann. § 41-2004. One is a class C misdemeanor and, upon the rationale of Barksdale, is not necessarily a lesser offense included in the charge of burglary when the proof is like that here. But when a person purposely enters an occupiable structure of another he commits criminal trespass, a class B misdemeanor. Ark. Stat. Ann. § 41-2004 (2). Every test for the giving of such an instruction is met here. Grays actually confessed that he committed criminal trespass and to say that he was not entitled to this instruction completely ignores precedent and the commentary to Ark. Stat. Ann. § 41-2004, quoted in the majority opinion.

This case is a direct parallel to Fike, where we held that one charged with assault with intent to rape was entitled to an instruction on the crime of assault. The question of the intent of the accused was involved and, as here, the accused did not testify. There we said:

In the case at bar, it is not questioned that the prosecutrix’s testimony is sufficient to sustain the verdiet of assault with intent to rape. However, the jury has the sole prerogative to accept all or any part of a witness’ testimony whether controverted or not. Therefore, the jury had the absolute right, as trier of the facts, to evaluate the evidence and consider whether only an unlawful assault was committed upon her by appellant or even acquit him. The trial court should have given the instruction relating to the lesser included offense. ***

Not long ago, we spoke to this question in Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537, saying:

This court has zealously protected the right of an accused to have the jury instructed on lesser offenses included in a greater offense charged. We have consistently held that a trial court commits reversible error when it refuses to give a correct instruction defining a lesser included offense and its punishment when there is testimony on which the defendant might be found guilty of the lesser rather than the greater offense. *** We have been so careful to see that a jury has an opportunity to pass upon lesser offenses as well as the greater one charged that we have held that it is not prejudicial error to give an instruction which permits the jury to find a defendant guilty of a lower offense than that charged, even when the defendant objects, because the evidence shows him to be guilty of the higher offense or of nothing at all. *** Still, it is not error for the court to fail to instruct on the lower offense, where the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent. *** And we have held that where the higher offense charged included a lower offense and there was evidence sufficient to present a question of fact as to the defendant’s guilt of either, the trial judge’s instruction over defendant’s objection, that the defendant could not under the testimony be convicted of a lower offense than that charged in the indictment, was reversible error.

In this case, it is quite clear that there is no jusitification for saying that the evidence shows that Grays was either guilty of burglary or innocent, because his own statement shows that he was guilty of criminal trespass. The evidence clearly shows that he was guilty of burglary or of criminal trespass.

The new Arkansas Criminal Code has not changed the basic approach. The definition of included offense is found in Ark. Stat. Ann. § 41-105 (2) (Repl. 1977). So far as pertinent here, it reads:

A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
***
(c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.

Criminal trespass (the class B misdemeanor) was included in the charge of burglary under the statutory definition. The statute, as quoted in the majority opinion, also governs the giving of instructions with respect to a lesser included offense. As I have previously pointed out, there was certainly a rational basis for finding Grays guilty of criminal trespass. And there was a rational basis for acquitting him of burglary, because the jury might well have found that the state failed to prove his purpose beyond a reasonable doubt.

Ark. Stat. Ann. § 41-105 (3) did not license the trial court to draw inferences from the testimony or to conclude that an essential element of a crime had been proved beyond a reasonable doubt by circumstantial evidence. It did not change existing law. The commentary on this subsection reads:

The final subsection authorizes a court to refuse to instruct on an included offense when the evidence mandates either conviction of the greater offense or acquittal. The Supreme Court has previously reached the same conclusion. See, Caton and Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972).

As a matter of fact, the subsection was virtually lifted from the opinion in the case cited in this commentary.

It is difficult to see how the majority can possibly reach its result without ignoring well established rules. Denying the instruction was a denial of due process under the authority of such cases as Moore and Patterson.

I would reverse the judgment for failure of the trial court to charge the jury with respect to criminal trespass.

I am authorized to state that Mr. Justice Hickman and Mr. Justice Howard join in this opinion.


text:
    Robert Franklin CAMPBELL v. STATE of Arkansas
    CR 78-132
    572 S.W. 2d 845
    Opinion delivered November 13, 1978
    (In Banc)

      Don Langston, for appellant.

      Bill Clinton, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant was convicted of a Class “B” Felony — i.e. theft by receiving a stolen Mercedes-Benz automobile having a value of $10,000 or more. He subsequently, pursuant to Criminal Procedure Rule 37, filed a post-conviction petition to collaterally attack his sentence for the following reasons:

“1. The trial court erred in not declaring a mistrial when Linda Harris, a witness for the State, entered the jury room while the Court was in recess;
2. The Arkansas Habitual Criminal Act was erroneously and unconstitutionally applied against him, constituting an excessive sentence;
3. New evidence has been discovered which will show that a witness for the State committed perjury concerning the theft of the property; and
4. The trial court erred in failing to reduce the degree of the charge from a Class “B” Felony to a Class “C” Felony due to the fact the evidence was insufficient to support the property value requirements for a Class “B” Felony.”

Appellant’s first amendment to his petition eludicated further as to his third allegation above. By his second amendment appellant stated that he received probation on the California conviction used by the State for proving the habitual criminal charge and that consequently the California sentence upon which he received probation was not properly introduced for purposes of the habitual criminal act. The trial court found the issues against appellant and he appeals raising the issues hereinafter discussed.

POINT I. For the first time on appeal appellant contends that his due process rights were violated because he was denied an appeal of his conviction. We do not consider matters raised for the first time on appeal. Furthermore, Criminal Procedure Rule 37 requires that all grounds for collaterally attacking a conviction must be raised in the original or amended petition for relief. The reason for our rule of not considering matters raised for the first time on appeal is demonstrated by the record before us — i.e. the trial court held a hearing at which evidence was presented and had the denial of a right of appeal has been raised in the trial court, the State would have been in a position to call witnesses to refute appellant’s assertion that the trial court removed his attorneys and that he was held in jail without ability to contact the Public Defender for purposes of prosecuting his appeal.

POINT II. Appellant contends that the trial court erred in failing to strike the value testimony of J. R. Burns, a salesman for Van Winkle Mercedes in Dallas, Texas. In other words appellant contends that the salesman’s testimony was hearsay. The alleged erroneous admission of hearsay testimony as to the retail value of an automobile is not a ground for relief under Arkansas Criminal Procedure Rule 37. See Swisher v. State, 257 Ark. 24, 514 S.W. 2d 218 (1974).

POINT III. Appellant’s contention that the trial court erred in not granting him a new trial because of newly discovered evidence that the testimony given by Brenda Earn-hart was perjured is not supported by the record. In appellant’s trial Brenda Earnhart testified that she went to Van Winkle Mercedes with appellant. To show that her testimony was perjured in his post-conviction proceeding appellant called Robert Lindsey, a former Criminal Investigator in the case, who testified that from a telephone call h«r had received and other investigation it was his opinion that Brenda Earnhart had lied. However, Mr. Lindsey admitted that he had been unable to document any of the conflicting stories he had heard.

Based upon the record before us, we cannot say that the trial court erred in denying a new trial. See Harvey v. State, 261 Ark. 47, 545 S.W. 2d 913 (1977).

POINT IV. Neither can we find any merit to appellant’s contention that the trial court should have granted him a new trial because Linda Harris entered the jury room. The record shows that Linda Harris was with appellant when he was arrested for possessing the stolen automobile. The record also shows that during the criminal trial appellant was aware that Linda Harris had wandered into the jury room but no motion for a mistrial was made at that time. Furthermore, the record shows that Miss Harris was immediately removed from the jury room; that she was intoxicated and that she was subsequently found in contempt of court.

The burden was upon appellant to show actual improper influence from Miss Harris’ entry into the jury room which was apparently in search of a cup of coffee. See, Hutcherson v. State, 262 Ark. 535, 558 S.W. 2d 156 (1977). On the record before us the trial court did not err in refusing to grant a new trial.

POINT V. Appellant contends that the State should not be allowed to use as part of their proof of prior convictions a California proceeding for which he was put on probation. We find this contention without merit because our habitual criminal statute, Ark. Stat. Ann. § 41-1001 (Repl. 1977), specifically provides:

“(1) A defendant who is convicted of a felony and who has previously been convicted of more than one (1) but less than four (4) felonies, or who has been found guilty of more than one (1) but less than four (4) felonies, may be sentenced to an extended term of imprisonment as follows: ...” [Emphasis ours].

Likewise Ark. Stat. Ann. §§ 41-1002 — 41-1003 (Repl. 1977) were amended by Acts 1977, No. 474, to permit a prior finding of guilt to be established for purposes of enhancement of a sentence pursuant to Ark. Stat. Ann. § 41-1001, supra.

Affirmed.


author: Frank Holt, Justice.

text:
    Kozy KITCHEN v. STATE of Arkansas
    CR 78-97
    572 S.W. 2d 839
    Opinion delivered November 13, 1978
    (Division I)

      Robert B. Lamb, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellant guilty of rape (Ark. Stat. Ann. § 41-1803 [Supp. 1977]), carnal abuse in the first degree (§ 41-1804), and carnal abuse in the third degree (§ 41-1806). His punishment was assessed at forty-five years, ten years and one year, respectively, in the Department of Correction. Appellant first contends that the court erred in denying his motion to quash the jury panel. We must agree.

Appellant’s trial was scheduled for Monday, February 20, 1978, a legal holiday, at 9 a.m. When appellant and his counsel arrived for trial, it was discovered that the prospective jurors had not been notified to appear in court. Thereupon, the court instructed the sheriff’s and clerk’s offices to call a portion of the jury panel, requiring them to be present in the courtroom at 1 p.m. that day. In the interim, appellant’s counsel duly filed a motion to quash and orally voiced his objection to this procedure. The court denied them, finding that no prejudice would result. About one-third (70) of the two hundred prospective jurors on the original panel were notified by 1 p.m. to appear. The sole method of summoning them to appear was by telephone. The sheriff advised the court that he had done his best to notify all the prospective jurors and non-attendance was because of mileage or the jurors could not be contacted. The court found that a sufficient number of the jurors drawn had been notified to provide a sufficient panel of qualified petit jurors, and, as indicated, appellant’s written and oral motions to quash were denied.

Appellant recognizes that Ark. Stat. Ann. § 39-210 (Supp. 1977) permits jurors to be summoned by certified mail, telephone, personal summons, or other methods permitted by law. However, appellant invoked Ark. Stat. Ann. § 39-215 (Supp. 1977) which reads that a challenge “shall be sustained by the Court if it shall appear that there was a substantial irregularity in the drawing^ or summoning of the jury. ...” Appellant argues here and before the trial court that the notice of less than four hours is unreasonable and is a substantial irregularity in the summoning of a jury. Appellant insists that this short notice could only result in reaching prospective jurors known to the sheriff who had telephones at their homes or places of employment, and that since two-thirds of the prospective jurors were not contacted in the initial summoning for the case at bar, it resulted in the exclusion of a large class of eligible jurors. He asserts that this is a larger excluded class than the “farmer exclusion” of 25 or 30 prospective jurors in Hall v. State, 259 Ark. 815, 537 S.W. 2d 155 (1976). There we disapproved the practice of excluding all farmers during the farming season of the year without requiring them to appear and ask to be excused. We held this was impermissible since it constituted a deliberate and systematic exclusion of a large class of jurors. Here, in response, the state relies upon Huckaby v. State, 262 Ark. 413, 557 S.W. 2d 875 (1977). There we held that it was permissible to summon additional jurors, during a recess, by telephone since it was within the trial court’s “discretion to approve the most expeditious method of bringing in more jurors after the trial was already in progress.” Here the initial summoning of prospective jurors for the trial of this case was solely by telephone upon four hours’ notice. We are of the view that our holding in Huckaby should not be extended to approve this procedure. The situation here more closely approaches the factual situation presented in Hall which we held resulted in a systematic exclusion of a large class of prospective jurors in the initial summoning procedure.

It is next insisted that the jury verdict is not supported by substantial evidence. The state adduced evidence by the victims, appellant’s stepdaughters, detailing the alleged offenses as well as corroborating evidence. The credibility of the witnesses and any contradictions and inconsistencies in their testimony were for the jury to resolve. Barnes v. State, 258 Ark. 565, 528 S.W. 2d 370 (1975); Scott v. State, 254 Ark. 271, 492 S.W. 2d 902 (1973). In view of a retrial, we deem it unnecessary to recite in detail the evidence. We hold that it is amply sufficient when viewed most favorably to the appellee, as we must do on appeal, to constitute substantial evidence.

For the error indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.

We agree:

Harris, C.J., and George Rose Smith and Howard, JJ.

Fogleman, J., dissents.


author: Darrell Hickman, Justice.

text:
    PLANTERS BANK & TRUST COMPANY v. William M. COLVIN, Helen COLVIN, Bert SULCER, Trustee, Curtis COLVIN, Earl GORE, RICE GROWERS BANK & BEN M. HOGAN CO., INC.
    78-63
    572 S.W. 2d 836
    Opinion delivered November 13, 1978
    (Division II)

      Dane & Felton, Ltd., by: Dan Dane, and Daggett, Daggett & Van Dover, by: Jimason J. Daggett, for appellants.

      Sharpe & Morledge, P.A., for appellees.
   Darrell Hickman, Justice.

All parties affected by an order of the St. Francis County Chancery Court setting aside a foreclosure decree, sale and confirmation of a sale have appealed from that order.

The Planters Bank and Trust Company of Forrest City filed an action to foreclose a mortgage on some land owned by William Colvin and his wife, Helen. The mortgage was on thirty-nine acres and was given as an extension and renewal of credit under another mortgage which was on forty acres. The Rice Growers Bank of Wheatley was joined in the suit as having a subsequent claim against the land by virtue of a circuit court judgment against William Colvin and Curtis Colvin for $30,211.77. The Colvins, who were personally served, did not answer the suit and the foreclosure was granted on their default. The Rice Growers Bank bought the land on a $35,000.00 bid at public sale and sold it to a third party.

More than ninety days after the foreclosure decree was entered, the Colvins sought to set aside the decree, sale and confirmation, or in the alternative require Rice Growers to pay into court the amount of its bid. The chancellor heard testimony and set aside the decree, sale and confirmation. The court made several findings but found no fraud on the part of Planters Bank and declared that Planters Bank would still have a lien on the forty acres.

Planters appeals alleging three errors: the chancellor erred in finding the Rice Growers judgment was not a valid judgment; the court should have granted a motion to strike Colvins’ petition; and, the chancellor’s findings are inconsistent with the order setting aside the sale.

Rice Growers only alleges that the court erroneously set aside the sale.

The Colvins argue that the chancellor erred in refusing to set aside Planters Bank judgment; and, at least Mrs. Colvin is entitled to one-half the proceeds of the sale after satisfaction of Planters’judgment and the costs of the sale.

We find the chancellor erred in setting aside the foreclosure decree and sale. Only the confirmation of the sale should have been set aside.

Planters had loaned the Colvins money on a regular basis for some time and rather than pay off a note, the Colvins would leave $10.00 or so due to avoid legal expenses every time they needed a new loan.

As the Colvins and Planters Bank were negotiating to consolidate Colvin’s debts, it was discovered that Rice Growers Bank had a $30,211.77 judgment against William Colvin and Curtis Colvin in circuit court. Planters decided not to loan Colvin any more money nor renew his notes. Colvin had several other notes with Planters on personal property which were included in the complaint.

Planters filed suit on four notes which were secured by two separate deeds of trust; one deed of trust, dated July 26, 1971, goes to the entire forty acre tract of land (the deed of trust kept “open” by Colvin); and one deed of trust, which was dated April 16, 1976, excepted one acre from the forty acres. There was a dwelling house located on this one acre tract but it was not a homestead of Colvins.

In Planters’ complaint, Rice Growers Bank was alleged to have a circuit court judgment, as described herein, the basis of which was alleged to be a note signed by William Colvin and his wife, Helen, covering thirty-nine acres. The Colvins did not file an answer to the foreclosure complaint. They were not served a copy of Rice Growers’ pleading. Notice was published three times in the local newspaper as required by law. Mr. Colvin said he read them. An order was entered by the Court permitting the land to be offered for sale several ways: First, thirty-nine acres, and then one acre, and then the entire forty acres; the greater bid to be accepted. A commissioner was appointed and a public sale was held which neither of the Colvins attended.

Rice Growers bid the greater amount, $35,000.00, for the entire forty acres, and received a commissioner’s deed to the forty acres. Rice Growers did not pay to the commissioner $35,000.00 but instead only paid enough to satisfy Planters’judgment and the costs, a total of $10,363.93.

Rice Growers subsequently sold the land to a person who is not a party to this litigation.

The chancellor approved the sale and the commissioner’s deed.

The Colvins filed a petition to set aside the decree, sale and foreclosure alleging that fraud was committed when their one acre was sold. There was also an allegation questioning the validity of the Rice Growers’judgment.

The chancellor heard testimony and correctly decided that since ninety days had expired from when the decree was entered, fraud or unavoidable casualty must be alleged and proved. Ark. Stat. Ann. §§ 29-506 and 508. A meritorious defense must also be shown. Haville v. Pearrow, 233 Ark. 586, 346 S.W. 2d 204 (1961).

The court, in setting aside the decree, found:

. . . that no actual fraud was practiced upon either Mr. or Mrs. Colvin by Planters. Actually, both Planters and Rice Growers tried to work with Colvin in finding a way out of his difficulties. But in doing so they may well have led both him and her to believe that the one acre would not be involved in the sale.....

In other words, the court did not actually find fraud.

The court found that Rice Growers’judgment was “improperly obtained” and, therefore, the sale could not be valid. Consequently, the court decided to set the entire matter aside, with the exception of the judgment of Planters, because the matter was “so inter-twined that it could not be separated.”

This was not appropriate since no fraud or unavoidable casualty was found. Ark. Stat. Ann. § 29-506. The decree should have been permitted to stand. Free v. Harris, 181 Ark. 644, 27 S.W. 2d 510 (1930). The problem lies only with Rice Growers’judgment, its bid and the confirmation of the sale.

Rice Growers’ circuit court judgment was against only William Colvin’s interest and not that of his wife; it could only be a lien against William Colvin’s interest in the land. Ark. Stat. Ann. § 29-130; Howes v. King, Admr., 127 Ark. 511, 192 S.W. 883 (1917). Rice Growers had a deed of trust on thirty-nine of the forty acres involved but it was not signed by Helen Colvin. Therefore, it is obvious that Rice Growers’ judgment could not be a valid lien against any of Helen Colvin’s interest in the forty acres. It was, therefore, not a valid lien which could be used to foreclose Helen Colvin’s interest in the land in this action. Planters was correctly found to have a valid lien on all the forty acres and, therefore, the foreclosure was in order, and the sale was in order. Planters’ interest should not be disturbed. It simply becomes a matter of disposing of the troublesome problems raised by Rice Growers’ failure to pay to the commissioner the full bid of $35,000.00 and the disposition of the proceeds.

The matter may be resolved by the court by simply setting aside the confirmation and requiring Rice Growers and the commissioner to account to the court for the amount bid and dispose of that amount according to the law and equity. This is the only reasonable resolution of the matter since there was no finding by the court of wrongdoing on the part of Planters, and since the ultimate purchaser of the property is not a party to this lawsuit.

Therefore, we find that Planters ’ arguments have merit to the degree that we have expressed herein and that the Colvins’ argument has merit to the degree that Mrs. Colvin’s interest could not be foreclosed by Rice Growers at this sale. We find no merit to any other arguments raised on appeal.

Therefore, this case is remanded to the chancery court with instructions to set aside only the confirmation of sale entered herein and retain as parties to the litigation Rice Growers Bank, the commissioner and the Colvins for a fair and equitable disposition of the proceeds.

Affirmed in part, reversed in part.

We agree.

Harris, C.J., and Fogleman and Byrd, JJ.

      Mrs. Colvin disputed this fact and the notes in question were marked “paid.” The Planters Bank’s ledger card showed a $10.00 balance on the 1971 note.


author: George Howard, Jr., Justice.

text:
    Patricia KOZAL, a/k/a Patricia PARKER v. STATE of Arkansas
    CR 78-32
    573 S.W. 2d 323
    Opinion delivered November 13, 1978
    (Division I)
    [Rehearing denied December 11, 1978.]

      Pearce & Robinson, for appellant.

      Bill Clinton, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Justice.

This is an appeal from an order of the Washington County Circuit Court denying appellant’s motion for a new trial based on an allegation of the insanity of appellant.

The essential facts for determination of the central issue, namely, whether, under the circumstances in this case, appellant should have been afforded a hearing with an opportunity to offer evidence in support of her motion for a new trial, are as follows:

Appellant was convicted on June 24, 1977, of theft of property, in violation of Ark. Stat. Ann. § 41-2203 (Repl. 1964) and her punishment was fixed at eight years in the State Department of Correction.

A motion for a new trial was filed on August 3, 1977, based on an allegation of incompetency of counsel; and on September 2, 1977, after a hearing conducted by the trial court, appellant’s motion was denied. Appellant’s notice of appeal was filed on September 13, 1977.

During the month of May, 1978, while appellant’s appeal was pending before this Court, appellant’s present counsel discovered that appellant had been undergoing psychological evaluation and psychotherapy, and, as a consequence, on May 9, 1978, appellant petitioned this Court to remand the case to the Circuit Court of Washington County to the end that a motion for a new trial, based on the insanity of the appellant, could be submitted to the trial court. On May 15, 1978, this Court issued its mandate granting appellant’s motion to remand.

On May 25, 1978, appellant filed her motion for a new trial based on newly discovered evidence with the trial court. On June 19, 1978, the State filed its response, with a letter attached from the Mental Health Services Division of the Department of Social and Rehabilitation Services dated December 6, 1977, addressed to Judge William Kirby relative to case number 77-1890, pending in the Pulaski County Circuit Court, finding defendant without psychosis.

On June 29, 1978, a hearing was conducted on appellant’s motion for a new trial. During the hearing, the following pertinent exchange took place between the trial judge and counsel for appellant:

“THE COURT: ‘Patricia Parker’. In the first place, I think that is where the sanity ought to be determined, in Little Rock. I think, as far as this Motion for New Trial, you have got to show due diligence and Mr. Baker is not a witness here. There is no mention made to the Court anywhere in the transcript of insanity or wanting to have her checked at the Ozark Guidance Center, and she knew about this other experience, and why she didn’t tell Mr. Baker, her attorney here, I don’t know. She didn’t tell you about it. Didn’t you file something here?
“MR. ROBINSON: Your Honor, after —.
“THE COURT: But at that time she didn’t raise this, but she has been aware of this since 19 — whatever the time. I think it’s not due diligence at this time to offer it at this late hour. She had a good lawyer.
“MR. ROBINSON: Your Honor, there is no evidence in the record with respect to what the Court has just said. I mean, I would at least like to make a record with respect to due diligence.
“THE COURT: All right. What is it? Are you going to put her on the stand?
“MR. ROBINSON: Your Honor, may I discuss this?
“THE COURT: Well, of course. You can put on any testimony you want. I am just taking your own affidavit of your own doctor here in which he says she had been treated back then and no mention was made to her attorney nor anybody else.
“THE COURT: You’ve got to show due diligence, why that wasn’t brought out. That’s my point.
“MR. ROBINSON: Your Honor, of course as the Court is aware, one of our points with respect to asking for new trial before was incompetency, you know, counsel had not properly defended —.
“THE COURT: But there was nothing said about her incompetency. She was there. She talked to you about it. Did she tell you that she was incompetent, trouble before?
“MR. ROBINSON: No, sir, she did not.
“THE COURT: Did you have any reason to think she was from her actions?
“MR. ROBINSON: She didn’t act in the least bit bizarre.
“MR. ROBINSON: We have now discovered that she probably is. We have a report—
“THE COURT: I’m going to overrule it, and let you fight this out in Little Rock. The Supreme Court may hold this in abeyance, but that is the place where you can — it’s already pending there. So let the Court there decide whether she’s competent.
“MR. ROBINSON: Your Honor, I’d still like to make a record.
“THE COURT: Well, what else do you want to make? Do you want to put her on the stand?
“THE COURT: Talk with her and let’s get going.
“THE COURT: Let me say this, in fairness to you, what my policy is. If it’s your desire to enter a plea of Not Guilty by Reason of Insanity at this time, my policy is that it is not bailable. In other words, if she thinks she’s insane, I don’t want her running around the streets. She would have to go to the State Hospital. I just want you to know my policy. Anybody, in a criminal case, pleading insantiy — automatically there is no bail. Now, I don’t know what the policy in Little Rock is. I just want you to understand before you go farther.
“THE COURT: — Unless you want to put some testimony on, I’m going to overrule it. I have told you that. Go ahead with your testimony. On the fact (sic) of this there hasn’t been shown to be due diligence. Right on the fact (sic) of it, the affidavit from your doctor. I’m just telling you that. I don’t want you to be misled.
“THE COURT: — She can put anything she wants in the record.
“MR. ROBINSON: Excuse me, Your Honor, if she were incompetent —.
“THE COURT: Now, don’t argue about it. If you want to put her on the stand, do it. I have told you.
“MR. ROBINSON: All right. Please take the stand, please, Mrs. Parker.
“THE COURT: If she pleads insanity here, Not Guilty by Reason of Insanity, I’m going to put her in jail and send her to the State Hospital, and you can go to the Supreme Court if you want to, because that is my policy all through the years. If a person thinks she’s crazy, I don’t think she ought to be at liberty to prey on the public, and it’s proper to protect the public. So it’s your business; go ahead. I don’t know what Little Rock’s policy is on it, their approach or how they feel about it.
“MR. ROBINSON: Your Honor, under that pronouncement of the Court, I don’t dare put her on the stand. Mrs. Parker, step down.”

The trial court entered an order overruling appellant’s motion for a new trial. On July 6, 1978, appellant gave notice of appeal from the trial court’s order.

For reversal, appellant contends that the trial court abused its discretion in overruling appellant’s motion for a new trial.

Ark. Stat. Ann. § 43-2704 (Repl. 1977) provides in relevant part:

“Prior to the time fixed to file a notice of appeal, a person convicted of either a felony or misdemeanor may file a motion for a new trial, ... If requested or found to be necessary, the trial court shall promptly designate a date certain to take evidence, hear and dispose of all matters that are presented. ...” (Emphasis added)

Ark. Stat. Ann. § 43-2203, in material part, provides:

“The court in which a trial is had upon an issue of fact, may grant a new trial, when a verdict is rendered against the defendant, by which his substantial rights have been prejudiced, upon his motion, in the following cases:
“Sixth. Where the defendant has discovered important evidence in his favor since the verdict. ...”

It is plain from the above statutory provisions that unless a party requests an evidentiary hearing in connection with his motion for a new trial, it is discretionary with the trial court as to whether a hearing should be afforded in order to receive evidence in support of the motion; and, of course, this Court will not reverse the action of the trial court unless the trial court has abused its discretion. Newberry v. State, 262 Ark. 334, 557 S.W. 2d 864.

In the instant case, the record reflects that on the date scheduled by the trial court for a hearing on plaintiff’s motion for a new trial based upon newly discovered evidence, counsel for the appellant sought and received leave from the trial court, during the hearing, to offer oral evidence from the appellant in order to enable the trial court to determine if the purported newly discovered evidence of insanity of appellant was sufficient to justify a new trial, and whether appellant’s prior and present counsel could have determined the existence of the alleged newly discovered evidence by the exercise of due diligence. However, as a consequence of an exchange between the trial judge and appellant’s counsel resulting in the following admonition by 'the trial court, appellant declined to take the witness stand:

“THE COURT: If she pleads insanity here, Not Guilty by Reason of Insanity, I’m going to put her in jail and send her to the State Hospital, and you can go to the Supreme Court if you want to, because that is my policy all through the years. If a person thinks she’s crazy, I don’t think she ought to be at liberty to prey on the public, and it’s proper to protect the public. So it’s your business; go ahead. I don’t know what Little Rock’s policy is on it, their approach or how they feel about it.” (Emphasis added)

While we recognize that under Ark. Stat. Ann. § 43-1301 (Repl. 1977), when a trial judge has reason to believe that the defense of insanity will be raised on behalf of the defendant and will become an issue in the case, or shall be of the opinion that there are reasonable grounds to believe that the defendant was insane at the time of the alleged commission of the offense, the trial judge must postpone all the proceedings and shall “. . . either enter an order directing that the defendant undergo examination and observation by one or more qualified psychiatrists at a local regional mental health clinic or center, or shall commit the defendant to the Arkansas State Hospital for examination and observation,” we are persuaded that any effort on the part of the trial court to exercise its authority under the provision of Ark. Stat. Ann. § 43-1301 (Repl. 1977) may have been premature inasmuch as it seems plain that appellant would not be required to change her plea until such time as the motion for a new trial had been granted. Appellant stood convicted before the trial court of the criminal charge of theft of property and had been sentenced to a term of eight years in the Arkansas Department of Correction and was endeavoring to secure a new trial. Moreover, it does not appear from the record before us that appellant, either during or prior to the hearing held by the trial court, was a menace to the public or to anyone as a consequence of being at liberty on bail.

Furthermore, it must be remembered that under Article 2, Section 8 of the Arkansas Constitution there are certain fundamental and basic rights guaranteed to each citizen of this state which have been more appropriately characterized as “Declaration of Rights” and the pertinent provision of this declaration provides:

“. . . All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great.”

It is clear that the trial court’s admonition frustrated appellant’s desire to offer evidence in support of her motion. Accordingly, we are persuaded that appellant should be afforded an evidentiary hearing in connection with her motion for a new trial based upon newly discovered evidence.

Finally, appellant argues rather strenuously that the trial court committed reversible error in denying her motion for a new trial predicated on the contention of incompetency of counsel at the trial level. After carefully reviewing the record before us, we are persuaded that there is substantial evidence to support the action of the trial court. The evidence falls short in warranting a holding that appellant’s initial counsel’s services reduced the proceeding to a farce, a mockery of justice and shocking to the Court. It must be remembered that effective assistance of counsel does not equate with success. The mere showing of improvident strategy, or bad tactics is not sufficient to establish that defendant was denied effective assistance of counsel since counsel is accorded broad latitude in exercising his discretion and judgment. Haynie v. State, 257 Ark. 542, 518 S.W. 2d 492; Franklin and Reid v. State, 251 Ark. 223, 471 S.W. 2d 760. See also: Pinnell v. Cauthron, 540 F. 2d 938 (8th Cir. 1976).

This case is reversed and remanded to the trial court for proceedings not inconsistent with this opinion.

We agree.

Harris, C.J., and George Rose Smith and Holt, JJ.

      The record before us reflects that on June 28, 1978, present counsel for appellant received a telephone call from the office of the trial judge advising counsel that the trial court would take up appellant’s motion for a new trial at 1:00 p.m. o’clock on the following day, June 29, 1978.
      During an exchange between the trial judge and counsel during the hearing, regarding the short notice received by counsel, counsel stated that he had planned to call witnesses, a psychiatrist and a psychologist who resided at Fort Smith to testify in the proceedings. However, the trial judge stated that he had not been advised that counsel wanted to offer testimony until the morning of the scheduled hearing. However, the trial court did recall receiving a telephone call approximately two weeks prior to the scheduled hearing from one Greg Smith, an associate of counsel of record for appellant, stating “that he would like to be present when I acted on the motion.”


author: John A. Fogleman, Justice.

text:
    Johnnie David VARNEDARE v. STATE of Arkansas
    CR 78-115
    573 S.W. 2d 57
    Opinion delivered November 20, 1978
    (Division II)

      Paul Johnson, for appellant.

      Bill Clinton, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was charged with two counts of burglary, in violation of Ark. Stat. Ann. § 41-2002 (Repl. 1977). In accordance with plea negotiations between the appellant’s attorney and the prosecuting attorney for Pulaski County, the appellant sought to enter a plea of guilty to both counts at a hearing held on September 15, 1977. In response to questioning by the circuit judge prior to acceptance of the guilty plea, the appellant stated that he was drunk on the night the alleged offenses were committed, that he did not remember everything that happened on the night in question and that since he did “crazy things” when he was drunk, he was probably guilty of the offenses charged. The trial judge refused to accept the guilty plea, informing the appellant that if he was in fact so intoxicated that he did not enter either of the places he was charged with burglarizing with an intent to commit a theft, there was no reason for him to have two burglary convictions on his record.

Appellant was found guilty of two counts of burglary and sentenced to a term of ten years ’ imprisonment on each count, the sentences to run consecutively. Although no objection was made to the action of the trial judge on September 15, 1977, the appellant filed a pro se motion to vacate the sentence and judgment under Rule 37, Rules of Criminal Procedure. This motion, which alleged that the action of defense counsel in misleading the appellant into the belief that his plea of guilty would result in a one-year suspended sentence constituted a violation of Rule 37, was denied by the trial judge.

Appellant brings this appeal, alleging only one point for reversal of his conviction:

THE TRIAL COURT ERRED IN REFUSING TO ACCEPT DEFENDANT’S PLEA OF GUILTY AND TO SENTENCE THE DEFENDANT IN ACCORDANCE WITH PLEA NEGOTIATIONS WITH THE PULASKI COUNTY PROSECUTOR.

The basis of appellant’s argument is that neither the trial judge, the deputy prosecuting attorney nor the defense attorney was aware that Act 101 of 1977 (enacted on February 4, 1977) had amended Ark. Stat. Ann. § 41-207 (Repl. 1977), and removed self-induced intoxication as a statutory affirmative defense to a prosecution. It is the appellant’s contention that knowledge of this change in the law would have changed the manner in which the plea proceedings were conducted and he suggests that the trial judge would have accepted a plea of guilty. Appellant cites us to cases holding that a substantive change in the existing law will provide grounds for the withdrawal of a previously entered guilty plea and contends that these cases support the theory that a substantive change in the law provides grounds for the entry of a guilty plea. This is a novel argument, but apparently the appellant’s attorney has misinterpreted the effect of the passage of Act 101.

By amending § 41-207 to remove self-induced intoxication as a statutory defense, the legislature, in effect, reinstated any prior Arkansas common law on the subject. In Arkansas, voluntary intoxication has traditionally not been available as a defense to a prosecution, even if it produced a form of “temporary insanity.” Robertson v. State, 212 Ark. 301, 206 S.W. 2d 748; Wood v. State, 34 Ark. 341. However, in crimes such as burglary, where a specific statutory intent is required, a different standard must be applied. In Olles & Anderson v. State, 260 Ark. 571, 542 S.W. 2d 755, the voluntary intoxication of one of the defendants was raised as an affirmative defense to a prosecution for burglary and larceny. We said there:

* * * Still, when an offense can be committed only by doing a particular thing with a specific intent, it may be shown that an accused was so drunk at the time of the crime that he could not have entertained or formed the necessary intent, but the determination whether there was that degree of intoxication is solely within the province of the jury. Stevens v. State, 246 Ark. 1200, 441 S.W. 2d 451.

Therefore, under either the statutory provisions of § 41-207, as the parties involved thought them to be, or under the case law, as expressed in Olles & Anderson v. State, the defense of self-induced intoxication was available to the appellant, if it rendered him incapable of forming the intent that was a necessary element of the crime.

Although plea negotiations between prosecutors and defense attorneys serve an invaluable purpose in the administration of criminal justice and have been explicitly approved by this court (see Meyers v. State, 252 Ark. 367, 479 S.W. 2d 238), the acceptance or denial of a negotiated plea lies solely within the discretion of the trial judge. Criminal Procedure Rule 25.3; Comment to Criminal Procedure Rule 24.3. The rules also place a duty on the trial judge to determine that a factual basis exists for a plea of nolo contendere or guilty, whether negotiated or otherwise, before accepting such a plea. Criminal Procedure Rule 24.6.

The responses of the appellant to the questions posed by the trial judge cast a real doubt upon the existence of a factual basis for pleas of guilty. That these responses pointed out the very real possibility that an essential element of the offense charged was lacking is demonstrated by the following excerpts from the record of the proceeding:

THE COURT: Are you guilty?
DEFENDANT VARNEDARE: I was drunk, tell you the honest to God truth. I left the club drunk and stayed all night drinking.
THE COURT: . . . [D] id you go in there with the intent to commit theft?
DEFENDANT VARNEDARE: No, I was drunk. I was sitting there listening — watching the people. I don’t know what I done but I was guilty because I was there. I was guilty for staying. I was guilty walking over there and picking that stuff up to start with.
THE COURT: Let me explain something to you. If what you say is true then there is no reason for you to have two burglary convictions on your record.
DEFENDANT VARNEDARE: I thought since I was drunk and I have been known to do crazy things when I get drunk probably I was guilty. I don’t remember. All I remember is sitting there and laughing because all of that happened. That is all I honestly remember.

The prosecution bore the burden of proving, beyond a reasonable doubt, every element of the crime charged. Dillard v. State, 260 Ark. 743, 543 S.W. 2d 925. In order to find the appellant guilty of the crime of burglary, the prosecutor would have to prove that the alleged entries were made with the specific purpose (or intent) of committing an offense punishable by imprisonment. Ark. Stat. Ann. § 41-2002. Whether or not the appellant was intoxicated to such a degree as to be incapable of forming the requisite intent was a question which should be decided by the trier of fact. Giles & Anderson v. State, supra. Thus, the existence of a sufficient factual basis, required before judgment on a plea of guilty can be entered, was at least doubtful. Criminal Procedure Rule 24.6. Although we are not aware of the evidence adduced at the trial, the trial judge heard it and we assume that he considered it in imposing the sentences and making them consecutive. We find no abuse of discretion in the refusal of the trial court to accept the appellant’s negotiated plea of guilty.

The judgment is affirmed.

We agree.

Harris, C.J., and Byrd and Hickman, JJ.


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    Dennis RENFRO v. STATE of Arkansas
    CR 78-123
    573 S.W. 2d 53
    Opinion delivered November 20, 1978
    (Division II)

      C. W. Knauts, for appellant.

      Bill Clinton, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Dennis Renfro filed a motion for modification of his sentence of ten years’ imprisonment imposed on June 6, 1977, upon his plea of guilty to the charges of burglary and theft. He asked that three years of the sentence be suspended. The motion, which was filed under Criminal Procedure Rule 37.3, was denied without a hearing. Renfro asserts on appeal that the court erred in denying an evidentiary hearing without making a finding that the records of the case conclusively showed that he was not entitled to relief, in failing to appoint counsel upon his motion, in failing to rule on his contention that the court was without jurisdiction to impose the sentence and in accepting his guilty plea to the charges on which he was sentenced without adhering to safeguards required by United States and state constitutional requirements. We find no reversible error.

Renfro alleged in his petition that he entered a plea of guilty to the charges on the advice of his court appointed attorney, who refused to prepare his case for trial, and that the only time he saw this attorney was just three minutes before he was sentenced, when the attorney told him he had to plead guilty. He also alleged that he was coerced and intimidated into entering a plea of guilty by this attorney and the Sheriff of Clay County, who threatened him with a sentence of 21 years if he did not accept a plea bargain. There was a further allegation in his petition that the plea of guilty was entered with the understanding that he would be given a sentence of seven, rather than ten, years.

Appellant complains that the court did not make a finding that the files and records in the case conclusively showed that he was entitled to no relief or specify the parts of the files or records relied upon to sustain the court’s findings, as required by Criminal Procedure Rule 37.3 (a). Appellant relies upon Cusick v. State, 259 Ark. 720, 536 S.W. 2d 119 and Machibroda v. United States, 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473, as establishing his right to an evidentiary hearing.

This case is unlike Cusick. There we found that the files and records in the case did not show conclusively that the petitioner was entitled to no relief. The situation is quite different here. The trial judge made the following findings:

Petitioner alleges that his pleas of guilty to the crimes of burglary and theft were involuntary; that it was coerced; and that he did not agree to or understand the negotiated plea bargain recommendation.
The Court being well and sufficiently advised in the matter, and in reliance upon said motion, the files and records of the case, and the transcript of the plea, sentence and allocution proceedings makes the following findings of fact and conclusions of law:
The Court finds that in case no. 74-9 petitioner was charged with the crime of assault with intent to kill by information filed on March 13, 1974. To that charge defendant entered a plea of guilty on January 27, 1975, upon which plea he was sentenced to a term of ten years in the Department of Correction with seven years of that sentence being suspended conditioned upon good conduct and behavior; that on May 23, 1977, the State filed a petition to revoke the seven years suspended; that in case no. 77-5 defendant was charged with the crimes of burglary and theft to which charges he tendered a plea of guilty on June 6, 1977; that petitioner was represented by his court appointed attorney, Oliver Cox; that petitioner was sentenced to a term of ten years for burglary and theft, and to a concurrent term of seven years on assault with intent to kill on the petition to revoke.
The Court further finds that prior to accepting the petitioner’s pleas of guilty to the crime of burglary and theft, the Court fully advised and informed petitioner of the nature of the charges and specific acts involved, the minimum and maximum sentences, his right to trial by jury; and did ascertain from the petitioner that he knew and understood; and that he was waiving a jury trial.
The Court further finds that petitioner stated to the Court that he had not been abused or mistreated or forced or coerced in any way whatsoever into pleading guilty to these charges; that he had not been made any promises or threats in order to get him to plead guilty; that he fully discussed all the facts and circumstances of the charges with his attorney; that he had no question concerning the manner in which his attorney had handled his case; that he had no complaint or criticism of his attorney; that he felt that his attorney’s services had been in his best interest; that after the negotiated recommendation of ten years had been stated to the Court, petitioner stated to the Court that he heard and understood the recommendation; that the recommendation had been explained to him before entering his pleas of guilty; that he had no questions about the recommendation, and that he had nothing further to offer before sentence was passed.

These findings constitute substantial compliance with the requirements of Rule 37.3 (a).

A judgment entered January 27, 1975, shows that Renfro was sentenced to a term of ten years, with seven years suspended, on a charge of assault with intent to kill. By a judgment entered June 6, 1977, the suspension was revoked, upon Renfro’s plea of guilty to a charge that he had violated the terms of the suspension. Another judgment entered the same day is the judgment of which Renfro complains. The sentences imposed by the latter two judgments were specifically made concurrent. Both contained this recitation:

Whereupon the Court did inform the defendant of the nature of the charge, his plea thereon and asked if he had any legal cause to show why judgment should not now be pronounced, and no sufficient cause to the contrary being shown or appearing to the Court.

The record of the sentencing procedure is a clear refutation of appellant’s charges. It shows that the trial judge, after separately stating the particulars of the charges of burglary and theft, but before the plea of guilty was entered by Renfro in person, specifically asked if Renfro understood each of these charges and received an affirmative response. After the pleas of guilty were entered, the court asked Renfro if he understood that, as a consequence of his pleas of guilty, he could be sentenced to imprisonment for not less than three nor more than twenty years and fined up to $15,000 upon the charge of burglary and to not less than one nor more than five years and fined up to $10,000 on the charge of theft. Renfro responded to these inquiries in the affirmative. The record further discloses a thorough inquiry as to the assistance of counsel, the voluntariness of his pleas and the sentence recommended by the prosecuting attorney, before the sentence on the burglary and theft charges was pronounced. The answers then given by Renfro show clearly that there is no ground for relief on the allegations of his motion. The record discloses the following proceedings:

THE COURT: Have you been abused or mistreated or forced or coerced in any way whatsoever into pleading guilty to these charges?
MR. RENFRO: No, sir.
THE COURT: Have you discussed the case with your attorney, Mr. Cox, all of the facts and circumstances of the charges against you?
MR. RENFRO: Yes, sir.
THE COURT: Do you have any questions concerning the manner in which your attorney has handled your case?
MR. RENFRO: No, sir.
THE COURT: Any complaint or criticism?
MR. RENFRO: No, sir.
THE COURT: Do you feel that his services have been in your best interest?
MR. RENFRO: Yes.
THE COURT: It will be the finding and judgment of the Court that your pleas of guilty tendered are voluntary pleas and they will be accepted by the Court. Has there been a plea discussion and a recommendation in this case?
MR. CALVIN: Yes, sir, Your Honor, the defendant be sentenced to serve ten years in the Department of Correction.
THE COURT: Mr. Renfro, did you hear and understand the recommendation just made for the disposition of the charges against you?
MR. RENFRO: Yes, sir.
THE COURT: Had that recommendation been explained to you before entering your pleas of guilty?
MR. RENFRO: Yes, sir.
THE COURT: Do you have any questions of the Court about the recommendation?
MR. RENFRO: No, sir.
THE COURT: Do you have anything further to offer at this time then before sentence is passed?
MR. RENFRO: No, sir.

On the basis of this record, Machibroda is no more applicable than Cusick. The record made is a complete negation of Renfro’s charges, because it discloses that he was specifically asked questions that called upon him to advise the trial judge of the very things of which he now complains. The record does cast real light upon the issues raised by Renfro’s motion and the trial judge was not left to draw upon his own personal recollection or knowledge.

Renfro also contends that he was entitled to the appointment of counsel under the provisions of Rule 37.3 (b). That rule, however, by its very wording, requires appointment of counsel only for a “hearing in circuit court” or for appeal from an adverse ruling. Counsel was appointed for the purpose of appeal. When subsection (b) of this rule is read with subsection (c), it is clear that the rule requires appointment of counsel only when the trial court does not dispose of a petition under subsection (a). Since this petition was disposed of under (a), there was no error in this respect.

Renfro also complains that the trial court was without jurisdiction to impose the sentence upon him because he was charged with the crime in the Western District of Clay County and sentenced in the Eastern District. He now* contends that he is entitled to an evidentiary hearing on this question because the trial court did not rule upon this issue, which was raised by his petition. Nevertheless, there is no reversible error. This question was raised for the first time in the post-conviction petition. Appellant has failed to offer any reason or excuse for not raising this question at the time of sentencing. He is not now entitled to raise the question. Coleman v. State, 257 Ark. 538, 518 S.W. 2d 487. Furthermore, we do not feel that there is any merit in this contention insofar as the sentencing procedure is concerned, at least in the absence of a specific objection. Under the provisions of Ark. Stat. Ann. § 22-313 (Repl. 1962), the circuit judge was authorized to “hear, adjudicate or render any appropriate order with respect to, any cause or matter pending in any circuit court over which he presides” at any place in the judicial circuit which he serves as judge, subject to notice of the time, place and nature of the hearing, but he could not try a contested case outside the county of venue, unless the interested parties agreed.

We take judicial notice that the sentencing judge, Judge Gerald Pearson, was the circuit judge for the Second Judicial District at the time of the sentencing of appellant and that all of Clay County is in the geographical area of that district. Appellant does not allege that he had no notice that the sentence was to be imposed in the Eastern District of Clay County, or that he had any objections to its being done there.

Since we find no reversible error, the judgment is affirmed.

We agree.

Harris, C.J., and Byrd and Hickman, JJ.


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    Rickie Dean COX v. STATE of Arkansas
    CR 78-130
    573 S.W. 2d 906
    Opinion delivered November 20, 1978
    (Division I)
    [Rehearing denied January 8, 1979.]

      Laster & Lane, Ltd., for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury convicted appellant of aggravated robbery and his punishment was assessed, as a habitaul criminal, at ten years in the Department of Correction. For reversal appellant asserts the court erred in overruling his objection to certain questions propounded to him on cross-examination.

Appellant, testifying in his behalf, admitted making a written statement indicating that he took part in the alleged robbery of a liquor store. However he denied the truth of the admissions in his statement. During cross-examination, the deputy prosecutor asked him whether he had written another statement on the same day. Appellant’s counsel objected, stating that the matter was not before the court and that the mention of another statement before the jury was prejudicial. Counsel requested a cautionary instruction “about anything else” appellant had written. The court then instructed the jury to disregard the deputy prosecutor’s question. Thereupon appellant’s counsel moved for a mistrial which the court overruled.

It is argued that this procedure did not meet the admissibility requirements of Ark. Stat. Ann. § 28-1001, Rule 608 (b) (Supp. 1977), which provides in pertinent part:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, ....

Even if it be said that this cross-examination did not comport with Rule 608 (b), we find no error. We have repeatedly said that a mistrial is an extraordinary remedy, one which is proper only if “justice could not be served by continuation of the trial” or if an error is so prejudicial that its effect could not be cured by admonition of the jury. Gammel & Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976); Russey & Way v. State, 257 Ark. 570, 519 S.W. 2d 751 (1975). Here appellant was only asked if he had written another statement on the same day. There was no indication it referred to another and separate offense. Appellant’s objection was sustained and the court instructed the jury to disregard the question as to whether appellant had made another statement. The matter was pursued no further. In the circumstances, we perceive no prejudicial error in refusing a mistrial.

Also, during cross-examination, the deputy prosecutor asked appellant if he was guilty of another robbery on the same date. The appellant responded, “No, sir.” Appellant’s counsel then noted his objection which the court overruled. Again appellant argues that this procedure does not comport with Rule 608 (b), supra. In Duncan v. State, 260 Ark. 401, 541 S.W. 2d 926 (1976), we observed:

At the retrial the newly adopted Uniform Rules of Evidence will be in force, because new procedural statutes ordinarily apply to pending cases. (Cite omitted.) Rules 608 and 609 make changes in the law with regard to proof of specific instances of prior conduct on the part of the witness and with regard to prior convictions. Ark. Stat. Ann. § 28-1001, Rules 608 and 609, effective July 1, 1976.

In the case at bar, these rules were in effect at the time of trial. Clearly this type of question was impermissible here. Rules 608 and 609, supra. Therefore, cases which predate these rules and permit this question here are not longer applicable. However, we hold that since there was a negative answer to this isolated question, prejudicial or reversible error is not demonstrated. See Langston v. State, 348 So. 2d 273, cert. den. 348 So. 2d 277 (Ala. 1977).

Appellant also argues that Rule 608 (b) requires the court, in determining the admissibility of evidence of specific instances of conduct, to make findings or statements of fact upon sustaining or overruling an objection. Otherwise, this court will be put “in the position of having to read the trial court’s mind in determining whether his ruling on admissibility was or was not an abuse of his discretion.” We do not so construe such a requirement in this rule and, therefore, find no merit in this contention.

Affirmed.

We agree:

Harris, C.J., and George Rose Smith and Howard, JJ.

      At the Demo hearing, the testimony showed that appellant had made a separate statement on the same day about his complicity in another robbery.


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    ASSOCIATED BUSINESS INVESTMENT CORPORATION v. THE FIRST NATIONAL BANK OF CONWAY et al
    78-139
    573 S.W. 2d 328
    Opinion delivered November 20, 1978
    (Division II)

      Brazil, Roberts & Courtney, for appellants.

      Henry & Graddy and Clark & NcNeil, for appellees.
   Darrell Hickman, Justice.

The only question on appeal of this cause from the Faulkner Chancery Court is one of priorities as between secured parties.

The chancellor held that The First National Bank of Conway had first priority; Associated Business Investment Corporation was second; Burkhart-Randall was third; and, Theo Hiegel and Frances Hiegel were last. Associated and the Hiegels appealed.

The dispute arose because Safety Plastics, Inc. defaulted on several loans and an action was filed in Faulkner County Chancery Court which resulted in the court’s decision of priorities. The net proceeds of a sale netted $30,842.00, far short of enough to satisfy all of the claims.

The First National Bank first loaned Plastics $9,217.11 and secured its loan with a financing statement and chattel mortgage which were filed June 6, 1973.

Associated loaned Plastics $54,000.00 and filed its security agreement on the same property March 8, 1974.

Burkhart-Randall loaned Plastics some $101,000.00 and filed its security agreement April 26, 1974.

First National made two other loans to Plastics; one for $25,000.00 secured by an instrument Filed March 21, 1975 and one for $50,000.00 secured by an instrument filed March 1, 1976.

The first note to First National Bank for some $9,000.00 was paid in full by Plastics in December, 1973, but the chattel mortgage was not released of record.

The Hiegels signed a lease with Plastics in September, 1973 leasing premises to Plastics. This lease was assigned to Associated in February, 1974, as security, but it was never placed of record.

The Chairman of the Board of First National testified that although Plastics paid the first note in full, Plastics was never out of debt to the bank after the date of the loan.

The chancellor held that First National had priority because Plastics was never out of debt to First National and the chattel mortgage contained a future advances clause which reads:

This mortgage is given to secure the payment of the aforesaid mortgage and any renewal or renewals or any extension or extensions thereof, together with any future advances and the payment of any and all other indebtedness of every kind or character represented by promissory note or otherwise, whether as principal maker, endorser, or guarantor, now due or that may become due from Mortgagor to Mortgagee from this day up to and including the final foreclosure hereof and all such indebtedness shall be secured by the lien on said property under this mortgage.

Associated argues that since the note was paid in full, then First National had no claim to first priority because its later debts were obviously made and secured after loans were made by Associated and Burkhart-Randall and security interests were perfected. Associated also argues the subsequent loans were not “advances” covered by the first chattel mortgage because new security instruments were filed.

It was First National’s contention that essentially the subsequent loans to Plastics were advances and that its mortgage was of record with a future advances clause and, therefore, it should have first priority. We agree with this argument. The Uniform Commercial Code adopts the system of “notice filing” and there is a provision in the Code for a debtor to question the retention of a security interest in property. See Ark. Stat. Ann. § 85-9-402 Comments, Note 2, and Ark. Stat. Ann. § 85-9-208. The Commercial Code also provides that security agreements may include future advances clauses. Ark. Stat. Ann. § 85-9-204(5).

In a similar situation a bank was held to have retained its security interest although the secured note had been paid in full. See Re Zwicker, 8 UCC Reporting Service, 924.

First National had its instruments properly filed which were notice to any interested party that a claim existed against the property in question. The first chattel mortgage had not been released of record and any of the parties could have learned of the claim, but apparently chose not to do so. The simple fact that the first secured note had been paid is not sufficient evidence to hold that the security interest claimed must fail. This is especially true in view of the fact that a future advances clause was contained in the chattel mortgage, evidence was adduced that Plastics was never out of debt to the bank and the bank made subsequent loans to Plastics.

The Heigels’ claim that their lease, while not recorded, amounted to a landlord’s lien and at least gave them priority over Associated, has no merit. The lease was not assigned to Associated for the purpose of imposing upon Associated an obligation to pay the rent but simply was a matter of security for a loan that Associated made to Plastics. The language in the lease referring to a “landlord lien” could not, of itself, give the Hiegels priority against any secured interest Associated had that was properly perfected.

Affirmed.

We agree.

Harris, C.J., and Fogleman and Byrd, JJ.