text:
    Charles A.D. BLISS and Sharon BLISS v. STATE of Arkansas
    CR 83-116
    668 S.W.2d 936
    Supreme Court of Arkansas
    Opinion delivered April 30, 1984

      Janice Williams Wheeler, and Wayne R. Williams, for appellant.

      Steve Clark, Atty Gen., by: Alice Ann Burns, Dep. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellants were tried in the Circuit Court of Polk County, Arkansas, on a change of venue from Montgomery County, where the alleged offenses arose. They were convicted of rape and sentenced to 50 years. On appeal the appellants complain that the court erred: (1) in failing to quash the informations; (2) in denying the request for a bill of particulars; (3) in denying a hearing on their motion to suppress; (4) in failing to disqualify or recuse from the motion to suppress; (5) in admitting improper photographs; (6) in allowing improper impeachment; (7) in failing to grant a mistrial; (8) in admitting improper hearsay evidence; and (9) in failing to direct a verdict because of insufficiency of evidence. We find prejudicial error and reverse and remand for a new trial.

Charles A. D. Bliss is married to Sharon Aneta Bliss, the mother of a juvenile son. In October of 1978, the child was removed from appellants’ home by the juvenile authorities. The matter was presided over in the Montgomery County Chancery Court with the Hon. Gayle Ford, Chancellor, presiding. The hearing related to allegations of sexual abuse of the male child by both the mother and step-father, appellants in the present case. Chancellor Gayle Ford placed the child in the custody of his natural father. When the natural parents of this male child were divorced custody was granted to the appellant, Sharon Bliss.

On January 25, 1983, the appellants were charged in separate informations with the rape of the minor child by sexual intercourse or deviate sexual activity. Because of the notoriety and publicity, a change of venue from Montgomery County to Polk County was granted. The cases were consolidated for trial before the Hon. Gayle Ford, Circuit Judge. (Judge Ford serves a district where he is both Circuit Judge and Chancellor.)

A number of pretrial motions including a motion to suppress evidence and a motion for a bill of particulars were heard by the court. The motion to suppress involved photographs and other evidence obtained by the use of a search warrant which had been issued by Judge Gayle Ford. The bill of particulars specifically sought to determine which part of the Arkansas rape statute was involved as to each of the appellants. Arkansas Stat. Ann. § 41-1803 (Repl. 1977 and Supp. 1983) states that a person commits rape if he engages in sexual interourse or deviate sexual activity with a person who is less than 11 years of age. At the time the offenses were alleged to have occurred, this child would have been under 11 years of age. Sexual intercourse is defined as penetration, however slight, of the vagina by a penis. On the other hand, deviate sexual activity is descried as sexual gratification by penetration, however slight, of the anus or mouth of one person by the penis of another.

At a hearing on the motion to suppress the trial judge stated he would have to recuse in the matter. Appellants also suggested recusal by the court. A ruling on this motion was not made until the trial was well in progress. Judge Ford did not recuse himself apparently because he suppressed the evidence; yet he allowed the state to use a number of the seized photographs for impeachment purposes. Over appellants’ objections, the photographs were presented to the jury for inspection. Appellants were both found guilty of rape and Judge Ford sentenced each of them to 50 years and a $15,000 fine.

Appellants’ first argument is that the trial court erred in failing to quash the informations. This argument alleges prejudice resulted when the prosecuting attorney failed to furnish the appellants a bill of particulars. They anticipated the bill would inform each of the defendants which part of Ark. Stat. Ann. § 41-1803 they had allegedly violated. Appellants made a motion to dismiss and a motion for a directed verdict at the close of the state’s case. The motion for directed verdict was renewed at the close of all the evidence. Although the record does not reveal the date or time, the court informed appellants that their motion to dismiss had been overruled and that no evidence in support of the motion could be presented at the trial. The jury was instructed on both sexual intercourse and deviate sexual activity. There was no indication in the instructions nor on the verdict forms to indicate of which offense each appellant was found guilty.

The second point argued by the appellants is interwoven with the first point. Appellants contend that they were prejudiced by the failure of the state to furnish a bill of particulars. Arkansas Stat. Ann. § 43-1006 (Repl. 1977) provides that an indictment need not necessarily include a statement of the specific acts constituting the offense. However, upon the request of an accused the state must file a bill of particulars setting out specific acts it relies upon for conviction. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). The request for a bill of particulars was specifically made. It was not complied with as required by Ark. Stat. Ann. § 43-1006. Therefore, it was prejudicial error to fail to furnish the appellants with a bill of particulars.

The third point argued for reversal is based on prosecutorial delay. The child was removed from the home of the appellants on October 10, 1978. The informations against the appellants were filed on January 5, 1983. A delay of over 4 years is generally prejudicial. In this case the prosecuting witness in the 1978 custody hearing had disappeared at the time of the trial. In fact this witness was also a complaining witness in the present criminal action. Both the defense and the state had issued subpoenas for the witness, Judy Gibbs. The appellants’ subpoena was returned with the notation, “Not able to locate.” The state’s subpoena for this witness was directed to Russell Welch and returned with the notation, “Advised Russell.” Mr. Welch was a state police criminal investigator operating out of the Polk County Courthouse. Judy Gibbs was named in the affidavit for a search warrant as a person having knowledge of the guilt of appellants. The search warrant was issued by Judge Ford, based partially upon what Judy Gibbs stated. Between the change of custody order and the arrest in the present case the appellants had resided at the same address. The appellants argued the absence of the prosecuting witness, Judy Gibbs, and others caused prejudice to their defense. During the time between the two trials appellant Charles Bliss’s parents, Emerson and Winifred Bliss, had died as had Wayman Gibbs, the father of appellant Sharon Bliss. The psychiatrist who examined the minor David Alan Bliss in October of 1978, is also deceased. Finally, appellants were unable to locate Dr. S. F. Fowler, M.D., whom they alleged would testify that appellant Charles Bliss had been impotent since childhood. The statute of limitations for rape is 6 years. Arkansas Stat. Ann. § 41-104 (2) (a) (Repl. 1977 and Supp. 1983). Therefore, the prosecution was commenced well within the statutory time. There is no doubt that in some instances prosecutorial delay may cause prejudicial error thereby requiring a dismissal of charges. United States v. Lovasco, 431 U.S. 783 (1977). We have held that the prosecution cannot delay filing of charges in order to gain a tactical advantage over the accused. Scott v. State, 263 Ark. 669, 566 S.W.2d 737 (1978). In Scott, we held that if it cannot be shown that the state had good cause for the delay in filing charges against a defendant the charges should be dismissed. Simply because the statute of limitations does not run for a certain period of time does not justify the state in unduly delaying the bringing of charges. In the interest of fundamental fairness the state should proceed with prosecution as soon as possible. Had the parents of the appellants lived to testify it is apparent they would have testified to matters which they heard and observed. It is equally obvious that the appellants would not have performed sexual intercourse or deviate sexual activity in the presence of the child’s grandparents. We also consider that the victim was 8 years of age at the time he was removed from appellants’ home. Tests indicated he was confused and possibly borderline mentally retarded. Also at that time he equivocally denied the allegations made against the appellants. He was placed in a foster home and later with his biological father. At the time of the trial he was 13 years of age. The charges were filed on January 25, 1983, after appellant Sharon Bliss had followed her son’s school bus and attempted to make contact with him. It may have been that these charges would not have been filed had the mother not attempted to contact her son. Although the delay was unusually long we cannot say that the prosecution delayed in order to gain a tactical advantage over appellants. Therefore, under the circumstances of this case we do not find that the state created prejudicial error in failing to bring charges against the appellants at an earlier date.

It is next argued that the trial court erred in failing to hold a pre-trial hearing on the appellants’ motion to suppress and in failing to recuse on the matter contained in the motions to suppress. The record reflects that the Hon. Gayle Ford, Circuit Judge, signed the search warrant. The court announced a ruling during the trial whereby he suppressed the evidence obtained by use of the search warrant. Although the court suppressed the evidence the state was still allowed to introduce many of the pictures obtained by the search. The photographs were admitted under the guise of rebuttal evidence. The photographs were introduced ostensibly to rebut the testimony of appellants Charles Bliss and Sharon Bliss. Both Charles and Sharon testified that she had never had sex, during their marriage, with anyone except her husband. The photographs were very suggestive and apparently attempted to simulate acts of sexual intercourse between Sharon Bliss and others. Charles Bliss was an experienced photographer and he stated in the hearing that the pictures were simulations. By examining the photographs it is fairly obvious that the pictures were what Charles Bliss stated they were. All of the photographs introduced were made in 1982 and none of them involved the victim in this case. The child had not been in the home after October, 1978. These photographs did not contradict the testimony of either appellant.

Appellants argue the court should have recused on the hearing to suppress. We stated in Adams v. State, 269 Ark. 548, 601 S.W.2d 881 (1980) that Canon 3C of the Code of Judicial Conduct is applicable to criminal cases as well as civil cases. This Canon applies even though no request to disqualify and no objection to the failure to disqualify is necessary. We think the rule applied in Adams is equally applicable to the present case. The trial judge was required to rule upon the validity of a search warrant which he had issued. We think the trial judge should have recused as he had earlier indicated he intended to do.

The seventh point argued by appellants is that the state failed to properly comply with discovery. Although the facts are not entirely clear as to exactly what material was furnished to the appellants we are of the opinion that this matter will not be presented on re-trial of the case since appellants now have the material they sought.

Another argument by appellants is that the trial court improperly permitted impeachment of appellant Dale Bliss’s testimony. This argument is closely related to the earlier discussion concerning the motion to suppress. The photographs discussed earlier were used for the purpose of impeaching Charles Bliss’s testimony. We have discussed this under an earlier argument. Although the trial court admonished the jury that the photographs were admitted solely for the purpose of impeachment and not as evidence of guilt, we are of the opinion that their probative value is outweighed by the prejudicial effect upon the jury. Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983); Unif. R. Evid. 403.

The appellants argue that the court should have granted a mistrial after the prosecutor asked if a mirror had been removed from appellants’ home after a search was made. At the request of the appellants the court admonished the jury to disregard any reference to a search. Usually, an admonition by the court to the jury to disregard a particular comment is sufficient to cure the improper comment. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). The comment will no doubt not be repeated at the next trial.

Another argument contests the sufficiency of the evidence. Without detailing the evidence, we think there certainly was substantial evidence to support the convictions. However, some of the evidence was inadmissible and without it the result could be different. We will not anticipate the sufficiency of the evidence at the next trial because it may vary from that presented at the first trial.

It is argued that the court improperly admitted a psychiatrist’s report and letter. This report was presented by a former deputy prosecuting attorney at the omnibus pretrial hearing. The report indicated that the victim was too emotionally unstable to testify at the time of the report in October, 1978. At the time this hearsay evidence was admitted, it went to the question of whether the state was guilty of prosecutorial delay. Hearsay is a statement made by someone other than the declarant offered to prove the truth of the matter stated. Unif. R. Evid. 801 (c). We have held that where such testimony was offered to show a course of conduct or the basis of action it should not be excluded under Rule 801 (c). Jackson v. State, 274 Ark. 317, 624 S.W.2d 437 (1981). Since this statement was introduced only for the purpose of overcoming a charge of prosecutorial delay it was not introduced to prove the matter stated. It was not prejudicial error to introduce the letter at the hearing on the motion to dismiss for prosecutorial delay.

Reversed and remanded.

Hickman, J., dissents.

Hays, J., dissents.


source: Caselaw Access Project

author:
Robert H. Dudley, Justice.
      P. A. Hollingsworth, Justice, John I. Pürtle, Justice,

license: Public Domain

text:
    Robert A. NEYLAND v. Larry HUNTER and The Trustees of HOLINESS JESUS NAME CHURCH OF THE LIVING GOD, Being C. A. McGHEE, James Ralph THOMAS, Harold INGRAM and William PRESNULL
    83-290
    668 S.W.2d 530
    Supreme Court of Arkansas
    Opinion delivered April 30, 1984
    [Rehearing denied June 18, 1984.]

      Stripling ir Morgan, by: Dan Stripling, for appellant. •

      Stephen E. James, P.A., for appellees.

      Purtle, J., would grant rehearing.

   Robert H. Dudley, Justice.

The appellees claim a prescriptive right to the use of a road that crosses appellant’s land. Neither the appellees nor other members of the public had adversely used the road for a period of seven years at the time suit was filed. The appellees contended below that three statutes have shortened the period for the ripening of a prescriptive right. The trial court agreed and held that appellees acquired a prescriptive right or easement. We reverse. Jurisdiction to construe the three statutes is in this court. Rule 29 (l)(c).

The appellees do not claim an easement across appellant’s land by deed. They claim a right-of-way by prescription. Prescription is the acquisition of title to a property right which is neither tangible nor visible (incorporeal hereditament) by an adverse user as distinguished from the acquisition of title to the land itself (corporeal hereditament) by adverse possession. See Real Property - Easements - Prescription Originating in Private Permissive Use, 6 Ark. L. Rev. 234 (1952). The statutory period for the ripening of title by adverse possession of land is seven years. Ark. Stat. Ann. § 37-101 (Repl. 1962). Adverse possession maintained for the statutory seven year period vests title in the adverse possessor as completely as would a deed from the holder of record title. Montgomery v. Wallace, 216 Ark. 525, 226 S.W.2d 551 (1950). We do not have a comparable statute for the ripening of a prescriptive easement. However, for many years we have considered the period for acquiring a prescriptive right-of-way as analogous to the statutory seven year period for the acquiring of title by adverse possession and for many years have held that both require seven years. Ark. Stat. Ann. § 37-101; Patton v. State, 50 Ark. 53, 6 S.W. 227 (1887).

Unlike adverse possession, prescriptive use need not be exclusive. We have frequently held that when governmental authorities assert their dominion by working a road for seven years the public use is under a claim of right. Patton v. State, supra; Merritt Mercantile Co. v. Nelms, 168 Ark. 46, 269 S.W. 563 (1925); Thompson v. Morris, 218 Ark. 542, 237 S.W.2d 473 (1951).

In the case at bar the appellees did not adversely use the road for seven years. They had adversely used it for only a little over two years. The road had been graded by the county for six years and six months at the time this suit was filed. More than ten families use the road as the most direct route to the county courthouse. The road serves as a mail route.

The appellees contend that two statutes, codified under “Title 76 — Chapter 1 — Highways,” provide new, and shorter, periods for the ripening of easement by prescription. One statute, they argue, would provide a two year period for the ripening of the easement, while the other would provide for an instant easement. Of consequence, neither statute specifically mentions an easement, or right-of-way, or prescriptive use. The statutes are as follows:

§ 76-104 — Direct routes to county court house designated public roads.
Any road that is the most direct route to the County Court House of ten [10] or more families, where said road is a graded road and has been used by the general public as a road for two [2] years shall hereafter be and be termed a public road. [Acts 1923, No. 666, § 3, p. 568; Pope’s Dig., § 6971.]
§ 76-105 — All mail routes become public roads.
Hereafter any road that may be used as a mail route or a free rural mail delivery route, shall immediately become a public road on being designated as such mail route by the proper postal authorities of the United States Government. [Acts 1923, No. 666, § 4, p. 568; Pope’s Dig., § 6972.]

The statutes cannot be literally construed to provide a limitation period for the acquisition of a prescriptive easement. Likewise, an examination of them in their historical context reveals they are not intended for that purpose.

Prior to 1907, seven years of adverse possession of a road or street against a government would ripen into title. City of Fordyce v. Hampton, 179 Ark. 705, 17 S.W.2d 869 (1929). In 1907, the General Assembly enacted Ark. Stat. Ann. § 19-3831 which prohibited acquiring title by adverse possession to municipal streets, alleys, or parks. However, non-municipal thoroughfares were subject to the doctrine of adverse possession until Act 666 was passed in 1923. Raney v. Gunn, 221 Ark. 10, 253 S.W.2d 559 (1952). Section 1 of Act 666 of 1923 is codified under Title 37, Chapter 1, Real Property — Adverse Possession, and is as follows:

§ 37-109 — Title to roads and parks not to be acquired by adverse possession.
Hereafter no title or right of possession to any public thoroughfare, road, highway or public park, or any portion thereof, shall or can be acquired by adverse possession or adverse occupancy thereof, and the right of the public or of the proper authorities of any county to open or have opened any such public thoroughfare, road [,] highway or park, or parts thereof, shall not be defeated in any action or proceeding by reason of or because of adverse possession or adverse occupancy of any such public thoroughfare, road, highway or park, or any portion thereof, which such adverse possession or occupancy commenced or began after the passage of this act. [Acts 1923, No. 666, § 1, p. 568; Pope’s Dig., § 8958.]

The wording of § 37-109 was a clear manifestation of legislative intent to protect rural roads from hostile claims where adverse possession or occupancy began after the passage of the act. Morgan v. Hill, 224 Ark. 39, 272 S.W.2d 67 (1954). Although Section 1 of Act 666 of 1923, § 37-109, copied immediately above, is codified under Real Property — Adverse Possession, and sections 3 and 4 of the same act, § 76-104 and § 76-105, copied two paragraphs above, are codified under Highways, they must be interpreted as one act. In that context, § 76-105 obviously means that, if a road serves as a mail route, it is designated as a public road and cannot be acquired from the county by adverse possession; § 76-104 means that if a road is the most direct route to the county courthouse for ten or more families, has been graded, and has been used by the public for two years or more it is classified as a public road and cannot be acquired by adverse possession.

Twice we have expressly stated that the purpose of Act 666 of 1923 is to protect rural roads from hostile claims of adverse possessors. Raney v. Gunn, 221 Ark. 10, 253 S.W.2d 559 (1952) and Morgan v. Hill, 224 Ark. 39, 272 S.W.2d 67 (1954). Sections 3 and 4 of the act are codified as §§ 76-104 and 76-105. Unfortunately, neither case is annotated under either § 76-104 or § 76-105. Nevertheless, neither statute shortened the period for the ripening of a right to prescriptive use. Both are solely to protect rural roads from adverse possessors. The chancellor erred as a matter of law in holding that § 76-104 and § 76-105 shortened the period for the ripening of a prescriptive easement.

The chancellor also erred in holding that Ark. Stat. Ann. § 76-101 (Repl. 1981) “declares that all roads worked with public funds shall be public roads.” The statute does not contain a limitation period. It means that a public road does not have to be established by a formal order of the county court but that a prescriptive right-of-way can be established by the county working the road for a period of seven years. Patton v. State, 50 Ark. 53, 6 S.W. 227 (1887).

Since neither the appellees nor governmental authorities asserted dominion over the road at issue for a period of seven years prior to the filing of suit and, since appellees do not hold a right-of-way grant, they have no easement to cross appellant’s land. Thus, the case must be reversed. It must also be remanded since appellant asked for damages and an injunction against appellees’ further use of the private road.

Reversed and remanded.

Hickman, J., and Hollingsworth, J., concur.

Purtle, J., dissents.

P. A. Hollingsworth, Justice,

concurring. I concur with the result. However I would hold Ark. Stat. Ann. § 76-101, § 76-104 and § 76-105 unconstitutional because they allow property to be taken without due process of law in violation of the fourteenth amendment to the federal Constitution.

Hickman, J., joins in this concurrence.

John I. Pürtle, Justice,

dissenting. It was the appellant landowner who commenced this action to close a road across his lands. The road had existed to one degree or another for more than ten years. It had been shown on county maps as a county road for many years and the county had maintained it for at least six to seven years. It was a mail route and a bus route and more than ten families lived on the road. Owner Presnull and his subsequent grantees had traveled the road for more than seven years. Appellant admitted he was aware of Presnull’s use of the road from 1973 until the trial in 1983.

All the appellees claimed was a private and public prescriptive right to use this county maintained bus route, mail route and road, to travel to and from home, church and city. They are not interested in whether they have a prescriptive right, adverse possession or corporeal or incorporeal hereditament. They could not care less whether a right to possession of any public thoroughfare, road, highway or public park can be acquired adversely. That subject is simply not relevant. They seek to establish the road — not to destroy it.

The majority opinion quotes Ark. Stat. Ann. § 76-104 and § 76-105 as enacted in 1923. Both statutes were slightly changed by Act 165 of 1983. However, they remain basically unchanged. The result in this case should be unaffected. Arkansas Stat. Ann. § 76-104 (Supp. 1983) provides that the county judge may, at his discretion, designate a road that “is the most direct route to the county courthouse for ten (10) or more families, and which road is graded and has been used by the general public as a road for at least two (2) years.” That statute is clear, plain and unambiguous. It needs no crutches for its interpretation. It means exactly what it says. Neither of the statutes quoted by the majority has any language whatsoever to indicate they were enacted for the protection of the county. These statutes clearly were intended to benefit the public. Act 666 of 1923 has no place in their opinion except to lengthen it.

What difference does it make to a landowner if he loses his property to the public for a road in two or seven years. After standing by and observing the road maintained by the county made into a school bus route and mail route and used by people going to and from church for up to nine years, he now seeks to fence them in. The evidence here would even support a seven year use by people without the consent of the owner.

The best I can figure, the majority holds Ark. Stat. Ann. §§ 76-104 and 105 are probably constitutional but have a meaning other than what they state. This is the most strained and warped construction I have ever had the duty to read. I would affirm the decision of the trial court.


author: Robert H. Dudley, Justice. P. A. Hollingsworth, Justice,

text:
    Jerry CESSOR v. STATE of Arkansas
    CR 83-127
    668 S.W.2d 525
    Supreme Court of Arkansas
    Opinion delivered April 30, 1984

      Robert B. Wellenberger, for appellant.

      Steve Clark, Atty. Gen., by: Alice A?i?i Burns, Dep. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Jerry Cessor, appellant, was charged with capital murder. At trial, the proof of guilt was overwhelming. He was found guilty and was sentenced to life imprisonment, without parole. He appeals. We affirm. Jurisdiction is in this court under Rule 29(l)(b).

On September 3, 1982, Hairl Gene Patterson, a route salesman for Tom’s Toasted Peanuts, commenced his routine Friday route through Arkansas City and McGehee. The appellant, formerly a salesman for Tom’s Toasted Peanuts on the same route, knew that Patterson would possess three to four hundred dollars by the time he completed the route. Various witnesses, including the marshal of Arkansas City, saw appellant, a resident of Dermott, in Arkansas City between 12:00 noon and 3:00 p.m. Between 3:04 and 3:25 the first of several witnesses saw Patterson’s route truck parked, with the door open and the motor running, on the side of Highway 4 midway between Arkansas City and McGehee. Patterson and the sales receipts were missing.

Various law enforcement agencies began to investigate. Patterson was still missing on September 8 when investigators questioned appellant about the possibility he might have observed something on September 3 which would be of assistance in solving Patterson’s disappearance. Appellant told them he had been in Arkansas City on the day Patterson had disappeared and that he had talked to the marshal. He further stated he was there to talk to a man in a bar about construction work in the Arkansas City area. Later, the investigator went to the bar and talked to the manager. She did not know appellant. She knew of no one matching his description and stated that she could not recall ever seeing him. The investigator also found there was no construction work in the Arkansas City area. The police then learned that appellant had gone to either Oklahoma or Texas. A week later, at shortly before 9:00 a.m. on September 15, the police were notified that appellant was in Goudy’s Pawn Shop in Monticello.

Almost a month earlier, on August 23, 1982, the Judge of the Dermott Municipal Court had issued a warrant for the arrest of appellant for nonpayment of a fine for shoplifting. Appellant lived in Dermott. The Dermott Chief of Police had notified appellant by telephone that the warrant of arrest had been issued. The existence of the warrant had been communicated to various nearby law enforcement agencies.

Then, on the morning of September 15, after learning that appellant was at Goudy’s Pawn Shop, the radio operator for the Monticello Police Department dispatched an officer to arrest appellant on the outstanding arrest warrant issued earlier by the Judge of the Municipal Court of Dermott. The arresting officer did not know the reason he was directed to arrest appellant until he took him to the Monticello police station. There, appellant asked why he was being held and a second officer told him that he was arrested pursuant to the Dermott warrant.

The state police investigator assigned to inquire about Patterson’s disappearance drove to Monticello and arrived at the police station between 10:00 and 10:30 a.m. He told appellant he wanted to talk to him about his being in Arkansas City on September 3 and about the misleading statements he had previously made. The appellant responded he was tired of the police "being on my back” and he stated he wanted to take a lie detector test. He was not interrogated. Arrangements were made with a state police polygraph examiner to give appellant an examination at 9:00 a.m. the next morning, September 16, in Pine Bluff. Appellant was then taken to Dermott and placed in jail under the authority of the Dermott warrant. At 7:30 the next morning the state police investigator took appellant from the jail and drove him to Pine Bluff for the polygraph examination. The appellant was not questioned during the trip. After arriving in Pine Bluff, the polygraph operator told appellant about each of his constitutional rights. After each right was read to him, he was asked if he understood, and when he responded with a positive answer, he initialed the printed Miranda form. He also signed a form stating that he volunteered to take the polygraph examination.

The examiner asked appellant whether he shot Patterson. He responded “Yes, sir, I did” and started crying. He then asked to see the state police investigator who had driven him to Pine Bluff. He gave the state police investigator the following confession. He had been behind in the payment of his bills and desperately needed money. He knew the amount of money Patterson would have as he left Arkansas City on Friday. He purchased a .38 caliber RG pistol and a box of shells at the Wal-Mart store in McGehee on Friday morning, September 3. He left Dermott between 10:00 and 11:00 a.m. and arrived in Arkansas City about noon. He talked to the city marshal and later saw Patterson’s truck. He followed the truck and got Patterson to stop by flashing his lights. He then pulled the pistol on Patterson, tied his hands behind him, robbed him of about $300.00 and forced him to get into his car. He drove Patterson to an old shed at Hudspeth and shot him to death. Later, after being taken to the scene, he showed the officers where he had hidden the body. He showed them where he had burned Patterson’s checks, where he had thrown Patterson’s driver’s license and billfold and showed them where he had discarded the rope he had used to tie Patterson’s hands. He told the police the remainder of the box of .38 caliber shells was in his home and he executed a form authorizing them to search for the shells. Like the other items, the shells were found.

At trial, in addition to the confession, the state put in evidence the proof of appellant’s purchase of the pistol and shells on September 3, medical and ballistics proof that his pistol was the murder weapon, and proof that appellant pawned the same pistol on September 15, after the murder. The state also introduced evidence that appellant purchased five feet of nylon rope on the morning of the crime. The rope was identical to that used to tie Patterson’s hands. Patterson’s collections for the day were proven and his empty billfold was shown.

Prior to trial, appellant filed a motion requesting public funds for the employment of a psychologist or psychiatrist, a ballistics expert, and an independent investigator. The trial court ordered that appellant be given a complete record of the state hospital’s psychiatric examination. Prior to trial, appellant, in response to a motion for discovery, stated that he would not rely on an affirmative defense. Under these circumstances, the trial court did not abuse its discretion in denying appellant’s motion for an unnamed private psychiatrist or psychologist. Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1984).

Appellant did not name the ballistics expert he wished to employ, nor did he support his contention by showing what, if anything, an additional ballistics expert could have offered in appellant’s behalf. Appellant did not deny that he killed Patterson with the pistol he had purchased. At trial, he did not cross-examine the state’s expert. Under these circumstances, the trial court did not abuse its discretion in denying appellant’s motion for an additional ballistics expert. See Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982).

We find no error in the trial court’s refusal to authorize the expenditure of public funds for an investigator for appellant. The state called twenty-eight witneses. Nine were law enforcement officers. Seven of these nine had testified and had been cross-examined by appellant’s attorney at the suppression hearing held prior to the trial. The other two only testified about the crime scene and the chain of evidence. Only two experts testified, the ballistics expert and the state medical examiner. The appellant did not contest their testimony and did not cross-examine either of them. The remainder of the witnesses testified about finding Patterson’s truck and possessions, seeing appellant in Arkansas City on September 3 and about appellant’s purchasing the pistol and shells and pawning the pistol. The state provided discovery to the confession by appellant, reports of the scientific tests, copies of written and recorded statements by potential witnesses and a list of all tangible evidence to be used at trial. In light of the state’s compliance with comprehensive discovery, appellant’s confession, and the nature of the defense, the trial court did not abuse its discretion in refusing to appoint an investigator for appellant. See Simmons v. State, 278 Ark. 305, 316, 645 S.W.2d 680, 686 (1983).

Appellant next argues that his confession and the evidence which was seized should have been suppressed because they were the results of the exploitation of an illegal arrest. See Wong Sun v. United States, 371 U.S. 471, 479 (1963) and Coble v. State, 274 Ark. 134, 138, 624 S.W.2d 421, 423 (1981). We find no merit in the argument. While appellant’s arrest was a seizure within the meaning of the fourth amendment, Delaware v. Prouse, 440 U.S. 648 (1979), it was a valid arrest. Prior to the capital murder of Patterson, the appellant had been sentenced to pay a fine and costs. He defaulted. Upon an affidavit of default the judge issued a warrant of arrest. Ark. Stat. Ann. § 41-1103 (1) (Repl. 1977) provides:

Consequences of nonpayment of fine or costs. — (1) When a defendant sentenced to pay a fine or costs defaults in the payment thereof or of any installment, the court, upon its own motion or that of the prosecuting attorney, may require him to show cause why he should not be imprisoned for nonpayment. The court may issue a Warrant of arrest or summons for his appearance. [Emphasis ours.]

The warrant was validly issued and the appellant was legally arrested. The arrest was not a sham to provide an opportunity to question appellant. It was not necessary that the arresting officer knew of the warrant since the police agency directing him to make the arrest had knowledge of the warrant.

We find no merit in appellant’s argument that his confession was taken in violation of his fifth amendment rights. We independently review the totality of the circumstances surrounding a confession to determine whether an accused knowingly, voluntarily and intelligently waived his constitutional rights. Williams v. State, 281 Ark. 91, 663 S.W.2d 700 (1983). Among the factors to be considered in determining the validity of a confession are the age, education, and intelligence of the accused, the advice or lack of advice of his constitutional rights, the length of detention, the repeated or prolonged nature of the questioning, or the use of mental or physical punishment. Barnes v. State, 281 Ark. 489, 665 S.W.2d 263 (1984). Appellant’s age is not in the record; however, he was a married adult with an arrest record going back to 1974 and he had been previously incarcerated in the Arkansas Department of Correction. He had been arrested in Drew County in 1974, 1975 and 1977 and in Chicot County in 1974 and 1980. On each of these occasions he had been advised of his constitutional rights. He was able to read. He was given a Miranda warning prior to the confession in the case at bar. He stated that he understood his rights. He initialed a form to indicate he understood them. The interrogation was short. He confessed immediately after being questioned by the polygraph examiner. He had been incarcerated less than twenty-four hours. Under these circumstances the trial judge did not commit error in allowing the statement into evidence.

Appellant next urges this court to overrule Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983) and to hold that death qualification of the jury in a capital murder case is unconstitutional. We decline to so do.

The appellant contends that the trial court erred in refusing to grant a continuance. The trial court has discretion to determine whether a continuance is appropriate. The denial of a continuance will not be reversed unless there was a clear abuse of discretion which constitutes a denial of justice. Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983). Appellant did not cite to the trial court any witnesses or evidence that could have been developed had a continuance been granted. See Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984). Therefore, appellant has failed to demonstrate any abuse of discretion or any prejudice and the argument is without merit.

No error is found in other objections made during the trial. Rule 11(f) Rules of the Supreme Court. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

Purtle, J., and Hollingsworth, J., concur.

P. A. Hollingsworth, Justice,

concurring. I agree with the result reached by the majority in this case. However, I do not agree with the majority view on death-qualified juries and would overrule Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983).

Purtle, J., joins in this concurrence.


author: Steele FIays, Justice.

text:
    FIRST NATIONAL BANK OF BRINKLEY, ARKANSAS v. M. K. FREY and Eileen Patricia FREY
    84-30
    668 S.W.2d 533
    Supreme Court of Arkansas
    Opinion delivered April 30, 1984
    [Rehearing denied June 4, 1984.]

      Elledge. <¿r Martin, by: Steven W. Elledge, for appellant.

      Moore <b Serio, by: Robert G. Serio, for appellees.
   Steele FIays, Justice.

First National Bank of Brinkley has appealed from a judgment entered on a jury verdict against the bank and in favor of M. K. and Eileen Frey for the conversion of a certificate of deposit. On appeal we affirm the judgment.

Mr. and Mrs. Frey had several promissory notes with the bank and were stockholders of Bri-Ark, Inc., which was in default on several sizeable promissory notes due the bank. The bank sued Bri-Ark, Inc. and the Freys alleging the acts of the corporation were in reality the acts of the Freys. The corporate indebtedness was not disputed and judgment was entered on the pleadings against Bri-Ark, Inc. The Freys denied any individual liability on the Bri-Ark notes, or that any of their own notes were in default; they also counterclaimed, alleging that the bank had committed a conversion by wrongfully refusing to pay a $13,500 certificate of deposit at maturity. The jury awarded the Freys $491.74 for actual damages incurred by the bank’s having withheld payment of the C.D. and interest, and $35,000 for punitive damages. On appeal, the bank asserts five points for reversal, but we find no error.

The bank first contends there was insufficient evidence to support a finding of conversion. When that point is argued, we view the evidence and all reasonable inferences to be drawn from it in a light favorable to the appellees. Taylor v. Terry, 279 Ark. 97, 649 S.W.2d 392 (1983). There was no evidence that the Freys were liable for the debts of Bri-Ark, Inc., and the bank appears to have abandoned that claim in the lower court. The Freys owned several C.D.s from the bank, some of which were held by the bank as collateral for four demand notes which had matured at different times but had been extended. The disputed C.D. for $13,500 was not pledged; however, when Mr. Frey asked for payment the bank refused and the Freys incurred a loss of interest amounting to $421.88 by having to convert another C.D. before its due date.

Conversion is defined as “[a]ny distinct act of dominion wrongfully exerted over one’s property in denial of his right, or inconsistent with it . . .” Cooley, Law of Torts, Fourth Edition, Vol. 2, § 33, p. 498, and as “the exercise of dominion over property in violation of the rights of the owner or the person entitled to possession.” Thomas v. Westbrook, 206 Ark. 841, 177 S.W.2d 931 (1944). Conversion is an “intent to exercise a dominion or control over the goods which is inconsistent with the plaintiff’s rights.” Prosser, Law of Torts, Fourth Edition, § 15, p. 83.

The bank argues that it had a right to withhold payment of the C.D. and, hence, could not be guilty of conversion. The Frey notes had original due dates before January 6, 1982, when the C.D. matured, though each note had been extended to a date after January 6 and none was in a delinquent state when the C.D. matured. The bank does not argue on appeal that payment of these notes had been demanded, or default had occurred, but even if that were its position, that was disputed and the verdict resolved the issue, as the Freys offered proof that they had never received a demand for payment, that they had offered to pay the notes and had been told by hank officers to “leave the notes and just pay the interest.”

No authority is cited to sustain the assertion that the bank was legally entitled to refuse payment of the C.D. when due. The proposition is tantamount to contending as a matter of law that a bank can refuse to honor a certificate of deposit and treat it as an offset against a promissory note of the payee not then delinquent and we decline to make that holding without clear authority. By refusing payment, the bank wrongfully exerted dominion over the certificate of deposit and the trial court was correct in submitting the issue of conversion to the jury.

Nor do we agree with the second point for reversal. The bank alleges that the court erred in refusing to grant its motion for judgment notwithstanding the verdict. As the motion is not abstracted, we cannot determine the specific error charged. The bank argues that the measure of damages in conversion is ordinarily the market value of the property converted, whereas here the compensatory verdict was not the value of the C.D., but the amount of actual damages sustained by the Freys because of the conversion. The proof reflected that the Freys lost 1491.77 in interest and out-of-pocket expense because of the bank’s refusal to honor the C.D., and that was a reasonable measure of the damage. The amounts were exact and would not have been incurred had payment of the C.D. not been withheld. The market value of the property is not the only measure of the damages recoverable in conversion; the circumstances of the case may require a different standard, including expenses incurred. Cooley, Law of Torts, (Student’s Edition), § 241, p. 484; 18 American jurisprudence 2d § 95, p. 218; and see Van Meter Lumber Co. v. Alexander, 214 Ark. 640, 217 S.W.2d 833 (1949).

Another argument of the bank is that it was error to per,mit the Freys’ attorney to question a witness from a volume of banking regulations. Citing Barrow v. Bolton, 235 Ark. 595, 361 S.W.2d 91 (1962), the bank submits that it is improper to inform the jury of the law other than by the court’s instruction. But we cannot determine whether reversible error occurred, as neither the brief nor the abstract tells us what was read to the jury, it may have been immaterial. Certainly, without knowing the content, we cannot say a substantial right was affected. See Unif. R. Evid. 103 (a).

The last two points relate to the punitive damages: 1) The Court Erred in Allowing Jury Instruction Number 14 Regarding the Award of Punitive Damages and 2) The Award of Punitive Damages Was Excessive. We are not able to consider the first argument, as the instruction and the objection are not abstracted and we have said frequently that we will not go to the single record to determine whether reversible error has occurred. Routen v. Van Duyse, 240 Ark. 825, 402 S.W.2d 411 (1966); Tenbrook v. Daisy Mfg. Co., 238 Ark. 532, 383 S.W.2d 101 (1964). As to the argument of excessiveness, the jury heard the proof, which included the bank’s financial statement, and considerable discretion is given to it in fixing punitive damages in an amount it deems appropriate to the circumstances. Vogler v. O’Neal, 226 Ark. 1007, 295 S.W.2d 629 (1956). The award in this case is substantial, but not so great as to indicate the jury may have been influenced by passion or prejudice. The penalty of punitive damages has a dual purpose — it must be an amount sufficient to deter the defendant from similar conduct and sufficient to discourage others from like conduct. Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972); Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961).

Affirmed.


author: Richard B. Adkisson, Chief Justice. Steele Hays, Justice,

text:
    Wilbur COLEMAN v. UNITED FENCE COMPANY and GRAY SUPPLY COMPANY, INC.
    84-48
    668 S.W.2d 536
    Supreme Court of Arkansas
    Opinion delivered May 7, 1984
    [Rehearing denied June 11, 1984.]

      James E. Smedley, for appellant.

      Flail, Tucker F Lovell, for appellee United Fence Company.

      Wright, Lindsey <F Jennings, for appellee Gray Supply Company, Inc.
   Richard B. Adkisson, Chief Justice.

Appellant, Wilbur Coleman, was inj ured when he stepped in a post hole dug on property owned by appellee, Gray Supply Company, Inc. Appellant had parked his car on appellee’s land without permission and had left the car there for approximately two weeks. Subsequently, Gray Supply Company, Inc. contracted with appellee, United Fence Company, to construct a fence on the property. United Fence Company dug post holes and sent word to appellant requesting that he remove his car. When appellant arrived to push his car off the property, he stepped in a post hole and incurred inj ury to his back. The Pulaski County Circuit Court directed a verdict for both appellees, ruling that the evidence failed to establish that appellant was anything other than a trespasser and that there was no proof of willful or wanton conduct on the part of appellees. We affirm.

Appellant first argues that he was an invitee, not a trespasser or licensee, because others in the neighborhood had parked cars on the property and because appellee, United Fence Company, in asking him to move his car, had “invited” him onto the property. A trespasser is one who comes upon land without the consent of the possessor. A licensee is a person who comes upon the land with a privilege arising from the consent of the possessor. An invitee is one induced to come onto property for the business benefit of the possessor. W. Prosser, Law of Torts § 58 (4th ed. 1981) See also Holiday Inns, Inc. v. Drew, 276 Ark. 390, 398, 635 S.W.2d 252 (1982).

Appellant argues that because appellee requested him to move his car, he became something other than a trespasser. However, it is undisputed that he was a trespasser when he parked his car on the property because of the Arkansas rule that the mere acquiescence by a landowner in the public use of private land does not amount to an implied invitation of use. Chicago, R.I. & P. Ry. Co. v. Harrison, 204 Ark. 361, 162 S.W.2d 62 (1942). Appellant’s abandonment of his car on appellee’s property resulted in a continuing trespass on appellee’s property. W. Prosser, supra, § 13. The general rule is that the possessor of land is not liable for injury to trespassers caused by his failure to exercise reasonable care to put his land in a safe condition for them. Restatement (Second) of Torts § 333 (1965). There is no evidence here to support appellant’s claim that he was an invitee; therefore, appellant owed him no duty to maintain his property in a safe condition. Accordingly, we conclude the trial court did not err in directing a verdict for appellees.

Appellant urges this Court to abolish our long-settled distinction between invitee, licensee, and trespasser which we decline to do.

Affirmed.

Purtle, Hays and Hollingsworth, JJ., dissent.

Steele Hays, Justice,

dissenting. The majority concludes the appellant was a trespasser as a matter of law because he parked his car on the property of Gray Supply Company, Inc., without permission. But that does not give due regard to the fact that United Fence sent word to appellant to come and move his car, and while that would not elevate appellant to the status of an invitee, it does, I believe, create an issue of fact as to whether appellant was a licensee and, hence, entitled to a somewhat different standard of care than is owed to an undiscovered trespasser. Prosser, Law of Torts, Fourth Ed., § 60, p. 376.

In Webb v. Pearson, 244 Ark. 109, 424 S.W.2d 145 (1968), we said there was no difference between the duty owing to a licensee and a trespasser and a directed verdict was properly granted against a licensee who slipped on a grease spot on Pearson’s walkway. That was the correct result in that case, because an owner or occupier of land owes no duty to a licensee (as he does to an invitee) to inspect the premises to be certain they are safe, and there was no proof that Pearson knew, or should have known, a dangerous condition existed. See Prosser, Id. § 60 at p. 380. But here we have a different situation. United Fenhe dug holes near the vehicle large enough for a man to step in and left them with no warning signs or markings, at the same time notifying appellant to come onto the property to move his car. The language approved in Garrett v. Arkansas Power & Light Co., 218 Ark. 575, 237 S.W.2d 62 (1951) is appropriate here:

In all of our decisions on the subject — and there are many — we have adhered to the rule that one who goes upon the premises of another as a mere licensee is in the same áttitude as a trespasser so far as concerns the duty which the owner owes him for his protection; that he takes the license with its concomitant perils, and that the owner owes him no duty of protection except to do no act to cause his injury after his presence there is discovered. (Emphasis supplied.)

Appellant, whether a licensee or a discovered trespasser, was entitled to enter the property free of dangers created by United Fence Company which he might not be expected to anticipate. Giving that proof its highest probative value [Farm Bureau Mutual Ins. Co. v. Henley, 275 Ark. 122, 628 S.W.2d 301 (1982)] an issue for the jury arises as to appellant’s status, and whether United Fence breached a duty owed to him. I would reverse as to United Fence. [See De Vazier v. Whit Davis Lumber Company, 257 Ark. 371, 516 S.W.2d 610 (1974).]

Purtle and Hollingsworth, JJ., join in this dissent.


author: George Rose Smith, Justice.

text:
    Raymond HARRILL et al v. BOARD OF COMMISSIONERS OF CLINTON ROAD WATER PIPE LINE IMPROVEMENT DISTRICT #328 OF PULASKI COUNTY
    84-18
    668 S.W.2d 538
    Supreme Court of Arkansas
    Opinion delivered May 7, 1984

      James F. Lane, for appellants.

      Herrod & Vess, by: E. H. Herrod; and Townsend ir Townsend, Ltd., by: Willis Townsend, for appellee.
   George Rose Smith, Justice.

The principal issue on this appeal is the constitutionality of the following statute pertaining to suburban improvement districts such as the appellee water pipe line district:

In case for any reason the improvement contemplated by any district organized under this act is not made, the preliminary expense shall be a first lien upon all the land in the district and shall be paid by a levy of a tax thereon upon the assessed value for county and state taxation, which levy shall be made by the chancery court of the county and shall be collected by a receiver to be appointed by said court Ark. Stat. Ann. § 20-722 (Repl. 1968).

The appellants, landowners within the district, argue that the statute is invalid in its attempt to confer jurisdiction upon the chancery court to levy a tax and in its failure to provide each landowner with personal notice of the court proceeding in which the tax is to be levied. Our jurisdiction of the appeal is under Rule 29 (1) (a).

The district was organized in 1977 or 1978 and during the next few years incurred preliminary expense for fees of engineers, an assessor, and a lawyer, totaling about f40,000. When, however, the commissioners made an assessment of benefits in June, 1982, for the contemplated pipe line, 70 landowners, represented by counsel, appealed the matter to the county court, contending that the plans for the improvement had been materially changed, that the assessment exceeded any conceivable benefit to be derived from the project, and that the district should be terminated and dissolved.

The landowners’ appeal was successful, in that the assessment of benefits was set aside and the case transferred to the chancery court. In September, 1982, the chancellor ordered the dissolution of the district and appointed a receiver to determine the allowable preliminary expenses. The eight appellants — landowners not among the 70 who appealed — do not question the receiver’s court-approved finding that the allowable preliminary expenses were $40,000. Hence that aspect of the case is no longer in issue, the other 70 landowners also having made no complaint about the amount fixed.

In September, 1985, while the proceeding before the receiver was still being contested, the eight appellants asked permission to file an intervention attacking the constitutionality of Section 20-722, supra, on the two grounds we have stated. The chancellor refused to permit the intervention, finding that it was not timely. We do not, however, reach that question, nor other subordinate points argued by the appellants, such as the effect of the commissioners’ having tendered their resignations during the course of the case. Instead, we prefer to dispose of the whole matter by considering on the merits the two constitutional questions, which are presented on undisputed facts.

First, the appellants argue that Section 20-722 is unconstitutional because it does not provide that each landowner be served with personal notice of the proceeding to determine the district’s preliminary expenses. No such notice is necessary. In a dispute between an improvement district and its creditors, the district’s board of commissioners represents the district. It is immaterial that here the commissioners had sought to resign, for the creditors’ claims were resisted by the 70 landowners in an adversary proceeding. The appellants have not shown that their position differs in any pertinent respect from that of the other 70 landowners. Moreover, the appellants’ petition to intervene and their proposed complaint were considered at a hearing at which they were specifically given the opportunity to proffer whatever proof they may have had. They presented no evidence to show that the absence of personal notice has prejudiced them in any way. Their present argument is thus one of form, not of substanc:e. They have had notice and an opportunity to be heard.

Second, it is argued that jurisdiction to levy a tax cannot be conferred on the chancery court and that in any event the landowners must be given an opportunity to contest the property valuation underlying such a tax. Under this particular statute, Section 20-722, the chancellor is not vested with any discretion in the levy of the tax. The chancery court has jurisdiction to determine the preliminary expense, because under the statute it is a first lien on the land — a matter traditionally within the jurisdiction of a court of equity. Bowman Engineering Corp. v. Ark. & Mo. Highway Dist., 151 Ark. 47, 235 S.W. 399 (1921) (a case quite similar to this one).

Once the amount of the district’s debt for preliminary expenses has been determined, the computation of the tax is merely a matter of distributing the burden over the total assessed value of the property within the district. Every landowner is given the opportunity to protest when his land is assessed for general taxation. Ark. Stat. Ann. § 84-437 (Repl. 1980). A second opportunity need not be given. In a case like this one, involving a statute so nearly identical to Section 20-722 that no distinction between the two is possible, we sustained the statutory procedure. Neterer v. Dickinson & Watkins, 153 Ark. 5, 239 S.W. 722 (1922). Still another similar Arkansas statute was held constitutional by the Supreme Court in Missouri Pac. R.R. v. Western Crawford Road Imp. Dist., 266 U.S. 187 (1924). As with regard to the first point argued, the appellants were given an opportunity to proffer whatever testimony they had to support their position. They produced none. The validity of such statutes has been upheld repeatedly and need not be again discussed at length.

Affirmed.


author: John I. Purtle, Justice.

text:
    Charles WILKERSON v. FIRST NATIONAL BANK OF ODESSA, TEXAS
    84-56
    668 S.W.2d 941
    Supreme Court of Arkansas
    Opinion delivered May 7, 1984

      Thurman Ragar, Jr., for appellant.

      Ramsey, Cox, Lile, Bridgeforth, Gilbert, Harrelson if Starling, by: L. Layne Livingston, for appellee.
   John I. Purtle, Justice.

The trial court upheld the registration of a Texas judgment against the appellánt in Lincoln County Circuit Court. For reversal appellant argues the registration should be set aside because of improper venue. We hold venue was proper.

The First National Bank of Odessa, Texas, obtained a judgment against the appellant in the 161st District of Ector County, Texas, on November 28, 1981. The bank made application for registration of the foreign judgment in Lincoln County, Arkansas, on March 24, 1983. On March 26, 1983, summons was served on appellant in Lincoln County. On April 21, 1983, the court entered default judgment against appellant. A motion to set aside the judgment was filed on May 19, 1983. Appellant filed an affidavit stating that he was at all relevant times a resident of Jefferson County. Appellee’s response was filed June 7, 1983. The court refused to set the judgment aside.

Both parties agree that this cause of action is transitory. The foreign judgment was registered in Lincoln County where appellant was summoned. Chapter six of title 27 of the Arkansas statutes sets venue. By process of elimination, only section 613 (Repl. 1979) applies to registration of foreign judgments. It states: “Every other action may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned.” Venue over registration of foreign judgments actions is not provided for in any other section or rule. Therefore it must be included in “[e]very other action” as used in section 613. Chapter eight of title 29 concerns foreign judgments. Section 804 (Repl. 1979) provides that summons may issue and be served in any manner authorized by the law of this state for obtaining jurisdiction of the person. The summons was issued and served as provided by Ark. Stat. Ann. § 27-613. A transitory action may be brought in any county in which the defendant may be found. Robinson v. Mo. Pac. Transp. Co., 218 Ark. 390, 236 S.W.2d 575 (1951).

Affirmed.


text:
    Daniel REDMON v. STATE of Arkansas
    CR 83-154
    668 S.W.2d 541
    Supreme Court of Arkansas
    Opinion delivered May 7, 1984
    [Rehearing denied June 11, 1984.]

      Wayne A. Gruber and Jim F. Akins, for appellant.

      Steve Clark, Atty.-Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.

      Adkisson, C.J., would grant rehearing.

   John I. Purtle, Justice.

Appellant was tried in the Fourth Division of the Pulaski County Circuit Court and convicted of capital murder and sentenced to life without parole. For reversal he argues: 1) that there was no evidence to corroborate the testimony of two accomplice; and 2) that the total evidence was insufficient to support the verdict. We agree that there was insufficient evidence to corroborate the testimony of the accomplices.

About 8:30 p.m. on May 7, 1982, Hoyt Green was working in his yard when two men approached him and tried to rob him. He had a garden hoe in his hand in such a manner as to appear ready to strike the two men who had approached him. The two men were heard by a witness to order Green to put the hoe down. Three shots were heard. The victim’s daughter looked out a window and saw her father fall and two men run away. Mr. Green was found on the hoe beside his house in a dying condition. The hoe was later determined to have human blood on it. Mr. Green never spoke before he died. A witness nearby heard gunshots at the scene of the murder and observed two men run around the corner. They got into a parked Buick automobile, with the motor running, which was occupied by one or two men, and drove away. Eddie Coleman, one of the suspects, owned a Buick automobile. A handgun with three expended shells in the cylinder was found at Wolfe Street and Wright Avenue a short time later.

Officers went to a residence later in the evening for the purpose of arresting appellant and another suspect. Both men were found hiding in the attic of the house. Appellant had a fresh wound on his upper arm.

Two accomplices testified that they had made a deal with the state to plead guilty and receive 20 year sentences for first degree murder. Their testimony, if believed, was clearly sufficient to convict the appellant. However, the question presented for review by this court is whether there was corroborating evidence sufficient to justify the conviction. Arkansas Stat. Ann. § 43-2116 (Repl. 1977) specifically prohibits conviction of an accused upon the testimony of an accomplice unless it is corroborated by other evidence tending to connect the defendant with the offense committed. Our cases in support of this statute are too numerous to require citation. The corroborating evidence must be sufficient to establish the commission of the offense and tends to connect the accused therewith. Even though it need only connect the accused to the crime it must do more than create suspicion. Such connecting evidence may be circumstantial but it must be substantial. It need not be sufficient of itself to sustain a conviction. It may even be slight and not altogether satisfactory and convincing, but if it is substantial it is still sufficient to support the testimony of an accomplice and uphold a conviction. Olles v. State, 260 Ark. 571, 542 S.W.2d 755 (1976).

What is the corroborating evidence in this case? There is no dispute that the crime was committed. Hoyt Green was murdered in his own yard by being shot three times by one of two men who were observed by at least two witnesses. The victim called for help shortly before the shots were fired. He was observed holding a hoe before he was murdered. Appellant had a fresh wound on the upper part of his arm. Three shots were heard at the murder scene. A gun with three expended cartridges was found at Wolfe Street and Wright Avenue shortly after the murder. A witness observed a Buick with the motor running parked around the corner from the murder scene. He also saw two men run to the Buick and get in as the vehicle pulled away. The hoe which the victim held prior to his murder was determined to have human blood on it but in insufficient quantity to further classify it.

All of the information in the preceding paragraph was presented by witnesses who were not accomplices. However, not one shred of the testimony connected the appellant to the murder. From the evidence, other than that of the accomplices, any black man of the general description of appellant could have been convicted. Except for the accomplices, no witness identified the appellant at the scene nor in the Buick automobile nor at any other time or place connected with this murder. He made no statement himself but he has a constitutional right to remain silent.

Pursuant to Ark. Stat. Ann. § 43-2116 and our precedent we are bound as a matter of law to set aside this conviction. Pace v. State, 267 Ark. 610, 593 S.W.2d 20 (1980). No one should be deprived of liberty on mere suspicion or conjecture. The most we have here is a mere inference and it is not of the nature such as to point to appellant’s guilt so clearly that any other conclusion would be inconsistent. Pace supra and Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978).

Reversed and dismissed.

Adkisson, C.J., dissents.


author: Robert H. Dudley, Justice.

text:
    Elisa BALL (MOORE) and Andrew L. CHILDRESS v. Donald R. CAMERON and FOLK CONSTRUCTION CO., INC.
    84-44
    668 S.W.2d 942
    Supreme Court of Arkansas
    Opinion delivered May 7, 1984

      Byrd ir Leslie, by: Robert B. Leslie, for appellants.

      Anderson ir Kilpatrick, by: Overton S. Anderson, for appellees.
   Robert H. Dudley, Justice.

This tort action arose out of a car wreck. Jurisdiction is in this court pursuant to Rule 29(1 )(o). During opening statement the appellees’ attorney told the jury: “. . . As I say, they get to talk first and last to you. Now, that’s all set in our system of justice, ladies and gentlemen, by some burdens that are put on the Plaintiffs in a case like this. The law, ladies and gentlemen, is suspicious of claims like this. And they offset the advantages that the Plaintiff has by putting certain burdens on the Plaintiff. . . .”

Appellants’ attorney objected and asked that the jury be instructed to disregard the statement. The trial court, out of the hearing of the jury, sustained the objection but said that a ruling on a limiting instruction would be passed until the jury was recessed. The judge also told appellees’ attorney to “steer away from that.” During the first recess appellants’ attorney moved for either a limiting instruction or a mistrial. The trial court refused both. Unfortunately, the appellees’ attorney did not steer away from the matter, but in closing argument, stated: “You can reason from the fact that the law puts the burden of proof on the Plaintiff to prove the Defendant guilty of negligence, the law is suspicious of claims like this."

If a trial judge has undertaken to correct some impropriety by instructing the jury to disregard it, we accord great latitude to the trial court in ruling on a motion for a mistrial and we reverse only if there is a manifest prejudice. Back v. Duncan, 246 Ark. 494, 438 S.W.2d 690 (1969). However, when as here, an attorney makes an improper statement of the law, and the attorney is made aware of the impropriety by a court ruling, but the trial judge does not undertake to correct the matter by instructing the jury to disregard it, and the attorney then substantially repeats the statement, it occurs to us that prejudice has most likely occurred and we do not hesitate to reverse and remand for a new trial.

Since the case is remanded for retrial, we will discuss an evidentiary ruling which is likely to again arise. The trial court correctly ruled that a state trooper was not qualified as an expert witness. The appellant sought to have the trooper give the exact speed of one of the automobiles from an examination of its skid marks. It is sufficient to state that the witness did not know what the friction coefficient was, much less how to calculate it. For qualifying an expert witness on the estimation of speed from skid marks, see B. & J. Byers Trucking v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984).

Reversed and remanded.


author: Steele Hays, Justice.

text:
    FIRST ARKANSAS LEASING CORPORATION v. The Honorable Lee A. MUNSON, Pulaski County Chancellor
    84-4
    668 S.W.2d 543
    Supreme Court of Arkansas
    Opinion delivered May 7, 1984

      Wright, Lindsey ir Jennings, for petitioner.

      Steve Clark, Atty. Gen., by: Kay J. Jackson Demailly, Asst. Atty. Gen., for respondent.
   Steele Hays, Justice.

This case comes to us on a petition for writ of prohibition by First Arkansas Leasing Corporation. The respondents, Seth Ward and Seth Ward II, had placed a $4,500 bid on computer equipment owned by FALCO, the sale subject to confirmation by FALCO (a condition the Wards claim was not made known to them). FALCO refused the Wards’ offer and reached a tentative agreement to sell the equipment to a third party for $14,800. The Wards filed a complaint in chancery court seeking a preliminary injunction to prevent the sale of the equipment to the third party and requesting specific performance by FALCO. The trial court entered an order requiring the chancery clerk to accept $14,800 from the Wards as a security bond. Two weeks later, FALCO filed its answer to the complaint and admitted that the chancery court had jurisdiction over the subject matter of the litigation. The lower court then entered an order requiring the chancery clerk to pay the Wards’ bond to FALCO and FALCO to deliver the computer equipment to the Wards. The Wards filed an amended complaint seeking a declaratory judgment of their rights under the contract of sale and FALCO filed a timely motion to dismiss the amended complaint, citing the trial court’s lack of jurisdiction over the subject matter of the suit. In the alternative, FALCO moved that the case be transferred to a court of law. In an order dated October 17,1983, the trial court entered an order denying the motion. It is from that order that FALCO seeks a writ of prohibition charging that a court of equity does not have subject matter jurisdiction over a breach of contract claim for monetary damages only.

The petitioner argues that the Wards’ claim is based solely on breach of contract, that the court never had proper jurisdiction over the subject matter and that once the restraining order was granted there were no equitable issues left to be decided. However, the petitioner’s arguments are misplaced and, under our holdings on prohibition and equity jurisdiction, the court below properly retained jurisdiction.

Prohibition is an extraordinary and discretionary writ and should be used cautiously. It should never be granted unless the petitioner is clearly entitled to relief and the court against which it is sought is wholly without jurisdiction. Wade v. State, 264 Ark. 321, 571 S.W.2d 231 (1978). It is never issued to prohibit an inferior court from erroneously exercising its jurisdiction but only where the inferior tribunal is wholly without jurisdiction. Wisconsin Brick v. Cole, 274 Ark. 121, 622 S.W.2d 192 (1981). We also have a longstanding general rule on equity jurisdiction that once a chancery court acquires jurisdiction for one purpose, it may decide all other issues. Bierbaum v. City of Hamburg, 262 Ark. 532, 559 S.W.2d 20 (1977). And while on appeal we may hold that a case should have been transferred to one court or the other, it is also settled that if the court below in ordering or denying such a transfer acted erroneously, the remedy is by appeal after the matter proceeds to a final judgment, and prohibition is not the remedy. The writ cannot be used as a remedy to transfer between law and equity courts. Ark. Nursing Homes v. Rogers, 279 Ark. 433, 652 S.W.2d 15 (1983); St. Paul-Mercury Indem. Co. v. Taylor, Judge, 229 Ark. 187, 313 S.W.2d 799 (1958).

In this case, the court was not wholly without jurisdiction. It took the case properly under the complaint requesting an injunction and specific performance. Appellant admitted in its answer that the court had jurisdiction over the subject matter. The subsequent developments and amended complaint arguably made the case one that was proper for law rather than equity, but under the clean-up doctrine the court could certainly retain jurisdiction and could not be said to be wholly without jurisdiction. Bierbaum, supra. In Bierbaum, a suit was filed seeking a mandatory injunction against the city asking that it be required to move a sewer pumping station illegally built on a lot owned by Bierbaum. The city did not deny that it had built the pumping station on the wrong lot and counter claimed asking that the court condemn the property where the station was located and award damages to Bierbaum. The trial court denied Bierbaum’s request for the inj unction and declared the city had a right to condemn the property, but the case was transferred to the circuit court for a determination of damages. We held that the court should have retained jurisdiction of the cause, under the clean-up doctrine, to determine damages. Similarly in the instant case, the court had subject matter jurisdiction originally and all that remains for the court is to determine monetary damages, and under the clean-up doctrine it would be allowed to so act.

As prohibition will not lie to transfer cases between equity and law courts, and the court here was not wholly without jurisdiction, the writ is denied.


author: P. A. Hollingsworth, Justice. Robert H. Dudley, Justice,

text:
    Teresa WILLIAMS v. O’NEAL FORD, INC.
    83-230
    668 S.W.2d 545
    Supreme Court of Arkansas
    Opinion delivered May 7, 1984
    [Rehearing denied June 11, 1984.]

      Seay & Bristow, by: Bill W. Bristow, for appellant.

      Penix, Penix, Mixon <b Lusby, for appellee.
   P. A. Hollingsworth, Justice.

On March 14, 1979, Teresa Williams signed a sale agreement with O’Neal Ford, agreeing to trade her 1973 Dodge Charger toward the purchase of a newer automobile. The sale was contingent upon Mrs. Williams securing the necessary financing for the transaction. By agreement, her car remained in O’Neal Ford’s custody while she sought financing. Some three weeks later, after being unable to obtain the financing, she returned to O’Neal Ford to pick up her car. However, the car had been sold to a used car wholesaler by O’Neal Ford. Mrs. Williams demanded $1,200, the trade-in allowance listed on the March 14 agreement. O’Neal Ford refused to pay the demanded amount. Several days after Mrs. Williams’ demand of $1,200, O’Neal Ford repurchased the car and offered to return it to Mrs. Williams. She refused the return of the car stating that she was due the $1,200. O’Neal Ford informed Mrs. Williams that she would be charged a storage fee for each day the car remained on the premises. The fee would eventually consume the value of the car.

Mrs. Williams brought suit against O’Neal Ford, alleging conversion of the 1973 Dodge Charger and praying for $ 1,200 in compensatory damages and $25,000 in punitive damages. A jury awarded her $1,200 in compensatory damages and $22,500 in punitive damages. A motion for judgment notwithstanding the verdict was granted by the trial court as to the punitive damages and the compensatory damages were allowed to stand. The appeal is before us pursuant to Rule 29 (1) (o) involving an issue in the law of torts.

Appellant, Teresa Williams, contends that the trial court erred in setting aside the jury award of punitive damages. Our examination of the record reveals there is substantial evidence to support an award of punitive damages. We reverse.

We have held a judgment notwithstanding the verdict is proper where there is no substantial evidence to support the jury verdict, and one party is entitled to a judgment as a matter of law. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture. Findley, Administratrix v. Time Insurance Co., 269 Ark. 257, 599 S.W.2d 736 (1980). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the party against whom the judgment n.o.v. is rendered, here, appellant Teresa Williams.

In Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979), we stated that “although the taking was proper, the retention of the personalty after demand for its return constituted a submissible fact question on the issue of punitive damages.” Here, the requisite malice could be inferred from acts that are analagous. We will discuss the acts present in this case.

Teresa Williams’ testimony is clear that no one from O’Neal Ford mentioned the possibility of getting her car back until she retained an attorney, and he put O’Neal Ford on notice of the potential legal action. The following testimony by Clyde Booth, general manager of O’Neal Ford, was presented to the jury:

Q.: All right. Now I want to ask you, after being put on notice that your company was going to be sued for punitive damages to punish you did you all do anything at any time up to this point to give her that $1,200?
A.: The only thing that I know we — the only thing that I can recollect is that we offered her her car back. I don’t think at any time we offered her $1,200.
Q.: And sitting here right today you are not willing to give her $1,200 are you?
A.: No.
Q.: Or any portion of it?
A.: Yes, I’ll give her — now, at this point I would give her — I would return her car, the same thing that we offered.

The jury was aware of the circumstances of all the parties. They knew that Teresa Williams was a young black woman whose husband was away in the service of his country at the time of this occurrence; that she had three small children to transport to school and other places; and that she had essentially no experience in the marketplace. In voir dire this jury was asked if they felt merchants in the area should treat a black person in the same fashion as the merchant treats a white person. The response was affirmative in voir dire and is reflected by their award of punitive damages. The jury, acting as the conscience of the community, saw fit to punish the conduct of O’Neal Ford. Taking into account the jury’s superior vantage point on these matters including the credibility of the witness and viewing the evidence in the light most favorable to appellant, we hold there was substantial evidence to support the jury verdict. See Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).

Reversed.

George Rose Smith, Hickman, and Dudley, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. The single issue is whether the trial judge correctly set aside the award of punitive damages.

The appellant, Teresa Williams, wanted to purchase a new Ford LTD automobile. She testified that, on March 14, 1979, her father towed her 1973 Dodge Charger to O’Neal Ford, Inc., appellee, a Ford dealer in Jonesboro. She chose the car which she wished to purchase and said she wanted to trade her car toward the purchase price. The parties agreed upon a “trade-in allowance” of $1,200 for appellant’s automobile and appellant signed an agreement to that effect. The trade was contingent upon appellant securing a loan to pay the balance of the purchase price. Appellant did not deliver the certificate of title on the 1973 Dodge to appellee. Appellant testified that appellee’s salesman told her that, since her 1973 Dodge was in such bad condition, she could leave it at appellee’s place of business and they would look after it for her while she was obtaining a loan. She left her car with appellee under those conditions.

A legal analysis of the facts to this stage of events shows that a trade of automobiles had occurred, conditional upon appellant’s obtaining a loan for the balance, and a bailment was in effect. There was a delivery of the car by the bailor, appellant. The bailment was upon an implied contract that the bailee, appellee, would safely keep the car and then, if the bailor obtained a loan for the balance of the purchase price, take title to the car and allow a $1,200 trade-in allowance in accordance with the sales agreement. On the other hand, if the bailor could not obtain a loan, the bailee would redeliver the car to the bailor. There is no evidence whatsoever that there was an unconditional sale of appellant’s car to appellee for a cash price of $1,200.

After appellant’s car had remained in front of appellee’s place of business for a few days, it was moved to a lot behind the building where other used cars were located. Subsequently, one of appellee’s salesmen mistakenly conditionally sold appellee’s car, along with several others, to a wholesale used car dealer. The $350 sale was conditioned upon delivery of the certificate of title. Appellee never delivered title.

An analysis to this stage reveals that there was substantial evidence that a conversion had occurred. A conversion by a bailee is committed by an action in derogation of a bailor’s possessory right. When appellee conditionally sold appellant’s car and delivered it to a used car wholesaler the implied contract of bailment was breached.

Meanwhile, appellant was going to various financial institutions trying to borrow the balance necessary to complete the trade. On April 8, 1979, upon a final rejection by a lender, appellant returned to appellee’s place of business to get her Dodge. Appellee’s salesman could not find her car and then found that it mistakenly had been sold. He so informed appellant. Appellant immediately demanded $1,200 for her car. Appellee refused to pay this amount.

The next day appellant sought legal counsel who placed appellee on notice that, unless $1,200 was paid, a suit for punitive damages would be filed. The basis of appellant’s $1,200 demand is ambiguous but it is noteworthy that appellant does not argue that there had been an unconditional sale of the Dodge for $1,200. Appellee took prompt steps to recover the car. A few days later appellee notified appellant that her car had been recovered and was available for her.

The conversion ended at this point. The action in derogation of the bailor’s possessory right had ceased. The bailee sought to redeliver the car to the bailor, but she refused to accept it. The jury awarded $1,200 compensatory damages for the breach to this point and these compensatory damages are not at issue.

A bailee may be liable for punitive damages if he converts goods in an intentional violation of the possessory rights of the bailor. See Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979). But here there was no intentional act. To this point, when the conversion ended, there had been no intentional act, no fraud, no malice, nor had there been oppression.

The situation remained a standoff, with appellant refusing to accept the car and appellee refusing to pay $ 1,200 cash. Appellant then filed suit and the jury awarded $22,500 in punitive damages. The majority upholds the punitive award because appellee would not pay appellant $ 1,200 cash for her car. The majority position is untenable.

If there had been an unconditional sale of appellant’s car to appellee for $1,200, the appellee would have been entitled to possession at all times and there could have been no conversion and hence no damages, compensatory or punitive, for conversion. Thus, even the majority must agree there was not an unconditional sale. They must agree there was a bailment and a conversion. When the bailee attempted to redeliver the car according to the implied terms of the bailment, the appellant-bailor refused to accept it. She demanded $1,200 cash, with no trade, as though there had been an unconditional sale for $1,200. She and her attorney threatened a suit for punitive damages if appellee did not pay the $1,200.

The majority opinion states that liability for punitive damages accrued during this latter dispute. Yet, the conversion had ended and therefore the punitive damages cannot be for the conversion. The majority can only be punishing the appellee for refusing to pay the $1,200 without a trade of cars as agreed, yet appellee had no contractual obligation, expressed or implied, to pay this amount. The appellee had not unconditionally purchased the car for $1,200. There was only a conditional trade. The appellant still held the certificate of title. A valid dispute existed between the parties over the manner of terminating the bailment. Appellee’s contention that it did not owe $1,200 cash had a valid basis but the majority punishes appellee for refusing to modify the contract and purchase appellant’s car. The majority has created a very dangerous precedent in allowing punishment damages for refusing to modify a contract. I dissent.

George Rose Smith and Hickman, JJ., join in this dissent.