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

text:
    B. Frank MACKEY v. STATE of Arkansas
    CR 74-102
    519 S.W. 2d 760
    Opinion delivered January 20, 1975
    [Rehearing denied March 24, 1975.]

      Wright, Lindsey & Jennings, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Lyle Browñ, Justice.

Pulaski County Judge B. Frank Mackey was convicted of violating the county purchasing procedure act. Ark. Stat. Ann. § 17-1601 et seq. That act requires bidding on most county purchases where the estimated purchase equals or exceeds $1,000. It also prohibits a purchasing official from splitting any item with the intent to avoid bidding procedures. The four indictments on vPhich Judge Mackey was convicted may be summarized as follows:

Indictment 77664 charged that appellant on eight separate days in September, 1973, purchased corrugated metal pipe with the intent of splitting a single purchase of $5,-325.48 into eight separate purchases under $1,000 to avoid bidding procedures.

Indictment 77666 charged that appellant on seven separate days in July, 1973, purchased corrugated metal pipe with the intent of splitting a single purchase of $6,083.78 into seven separate purchases under $1,000 to avoid bidding procedures.

Indictment 77668 charged that appellant on August 9, and 14, 1974, purchased a quantity of culvert with the intent of splitting a single purchase of $1,802.82 into two separate purchases under $1,000 to avoid bidding procedures.

Indictment 77671 charged that appellant purchased personal property assessment forms at a total cost of $8,068.72; and that eight separate orders were made, splitting the orders in amounts under $1,000 to avoid bidding procedures.

For reversal appellant contends (1) that the actual purchases described in the indictments were made by people other than appellant and that the sole participation of appellant was the approval of the claims for the purchases; (2) that the State failed to prove criminal intent; and (3) that it was error to give an accessory instruction.

The first witness called by the State was Frank Win-burne, a certified public accountant who had been retained by the grand jury to audit the county records with regard to a multitude of purchases. Through him was introduced a summary of the purchases described in the four indictments. From a study of those records and conferences with county officials and employees he ascertained that no bids were taken on the purchases described in the four indictments. He further ascertained that the orders described in the first three indictments (metal pipe culverts) were all placed with the manufacturers by appellant’s employees; that the order for the assessment forms was placed with the printing company by the county assessor; and that appellant had nothing to do with the purchases except to pass on the claims filed by the sellers.

Official county records of the involved purchases were introduced through the county clerk. The amounts of the purchases are not questioned, nor is it contended that bids were taken. Mr. A1 Stafford, owner of Arkansas Culvert Company, verified the purchase and delivery of the metal pipe and culverts. The witness said he had no dealings with appellant in connection with any of the purchases. He assumed that the orders were placed by the county road and bridge supervisor, W. T. Morgan. Witness Robert E. Hill, representing Democrat Printing and Lithographing Company, produced the records of purchases of personal property assessment forms which formed the basis of the fourth indictment. He verified the amount of each invoice and delivery. He testified that the purchases were made by L. E. Tedford, the county assessor. “All Judge Mackey had to do with the purchase was that he ultimately had to pay for it.”

The county comptroller, C. B. Rotenberry, described the procedure for processing claims against the county. The supplier makes out one claim form for supplies furnished during a given month. He attaches thereto the various invoices supporting the total amount of the claim. The invoices are checked by the comptroller and he satisfies himself that the purchase has been authorized, the products delivered, and the correct billing extended. Thereupon the comptroller affixes his signature on the outside of the claim form below this imprint: “The within claim, together with all written and printed matter thereto attached, have been by me carefully examined and checked, and same is hereby certified as correct in amount, and a legal demand against Pulaski County in the sum of $_” Below the comptroller’s signature is this printed form: “Examined and the sum of $ _ allowed out of appropriation for expense of _this _day of _, 19-

County Judge.”

Mr. Rotenberry testified he examined the invoices supporting the claims upon which the first three indictments were based and saw no reason not to approve them. He said he noted that the purchases were made on different invoices with different dates of purchase; that each invoice was under the limits requiring bidding, and he considered them separate and distinct purchases. With reference to the assessment supplies he said he contacted the county assessor and verified the invoices before approving the claim therefor.

The State also called Theron Morgan. He has worked for Pulaski County under the last five county judges. His work is principally concerned with bridge and road construction and repair. Since 1969 he has been the road and bridge commissioner, working, of course, under the direction of the county judge. He verified having made the purchases described in the first three indictments and related the three particular jobs to which the materials were assigned. In fact he said he had been doing the purchasing for road and bridge work for the past 23 years — “18 years under Judge Campbell and five under Judge Mackey”. In that capacity he executed the purchase orders and approved the invoices when they were filed with the county, usually at the end of the month. After his (Morgan’s) approval “Mr. Rotenberry gets it from there, checks it out and then presents it to the judge”. He asserted he was sure that “all this culvert was in the ground with water pouring through it before Judge Mackey knew the culvert had been bought”.

Witness Morgan described his method on construction projects, which can be reasonably interpreted as some explanation for “installment” purchase of materials: “When we start to repair a road like these three, we figure out what material we are going to use as we go along. We do not put our plans on the drawing board. We have a road built before most anyone else could get it on paper. We travel a road and figure out ahead of time how many culverts we are going to use. We know in general terms where our trouble spots are. Then we have to figure out the square foot area of culvert that will be required as we go along.”

Appellant B. Frank Mackey testified that with an annual budget of over three million dollars he had to rely on employees for much of the paper work required of the office. For that reason he said W. T. Morgan was authorized to make purchases for the road and bridge department and the comptroller, Mr. Rotenberry, was counted on to audit all invoices for purchases of any nature. In addition, a full-time state auditor is assigned to Pulaski County. The witness said the state auditor, who goes over all county accounts, had never criticized the purchasing procedures. He said the first knowledge he had of the purchase of the materials in question was when the claims reached his desk. He said he noted they were approved by Mr. Rotenberry as being a just claim, that he examined the claims and saw nothing to indicate there was any problem with regard to the manner in which the purchases had been made. With respect to the purchase of assessment forms, again he said he had no connection with the actual purchase. He testified that it was approved by Mr. Rotenberry and initially authorized by the county assessor, and he relied on the latter to conform to the purchasing requirements.

Other than evidence of the four transactions forming the basis for the four indictments there is evidence of divers other transactions which generally followed the same pattern as those forming the basis of the four convictions. For example, there was evidence of a lease-purchase contract for a bulldozer costing $51,081; there was evidence of the purchase of asphalt sealing materials for $2,750; and there was evidence of a transaction with Dixie Culvert Company dated July 5, 1973, for a total of $1,802.58 which was split into two invoices. We are unable to tell whether the recited additional transactions were introduced to support indictments which were dismissed during the course of the trial; or to support indictments wherein the jury returned verdicts of not guilty; or to substantiate the indictments wherein the jury was unable to reach a verdict. Additionally, the transactions may have been introduced to show an overall scheme of operation. Our dilemma is caused by the fact that only those indictments upon which convictions were returned are in the record. Other indictments are referred to only by case number. However, since the State’s own evidence relative to the four purchases forming the basis of the convictions shows that those purchases were made, not by Judge Mackey, but by Mr. Morgan and Mr. Tedford, evidence of other transactions are of no benefit. We shall have more to say about that later.

The county purchasing procedure act imposes a penalty on an official who intentionally violates the provisions of the act. Ark. Stat. Ann. § 17-1613 (Repl. 1968). The State did not produce a single witness to testify that splitting practices were followed. The State relied solely on the suspicious fact that on eight separate days in September, 1973, corrugated metal pipe was purchased, each purchase order being under $1,000; that on seven separate days pipe was purchased, each order being under $1,000; that on August 9, and 14, 1974, two purchases were made, each under $1,000; and that nine separate invoices were approved for the purchase of tax assessment forms. It is significant that the suspicion is not corroborated by proof of fraud, personal gain, or a showing that the suppliers were paid more than the fair market price for the products. Of course, bare suspicion of guilt is not enough and we hold that the State did not meet its burden of proof; in other words, we find no substantial evidence of guilt, either as a principal or accessory, of intentional violation of the act.

Another controlling factor contributing to our action is that Judge Mackey, in approving the claims, was acting in his capacity as presiding judge of the county court. The acts of approving the claims did not constitute purchases; the purchases had already been made during the months previous to their approval. The legislative act of which he was accused of violating has a single purpose, that of regulating purchasing procedures; hence the title of the chapter, “County Purchasing Procedure”. The appellant was tried on the theory that he violated the purchasing act by splitting purchases. Ark. Stat. Ann. § 17-1603 (d) (Repl. 1968). The overwhelming proof was to the effect that appellant’s sole participation was in approving claims for purchases made by other parties, and there is no evidence of conspiracy between the judge and those making the purchases. In fact the grand jury specifically found no evidence of fraud.

Finally, the State argues in essence that appellant is criminally liable for the acts of his subordinates. To support that contention it cites Russell v. Tate, 52 Ark. 541, 13 S.W. 130 (1889). That case holds that the mayor was civilly liable for ordering the payment of an illegal appropriation. Also cited is Davis v. Jerry, 245 Ark. 500, 432 S.W. 2d 831 (1968). That was a civil proceeding. We there held that the county judge should be enjoined from failing to follow the county purchasing procedure act. Even if there might be circumstances under which a county judge could be criminally liable for the acts of his subordinates we cannot agree that such liability should be attached under the facts in this case. In fact the only Arkansas case in point which has been called to our attention does not favor the State’s position. Robinson 6 Warren v. State, 38 Ark. 641 (1882).

Reversed and remanded.

George Rose Smith, Jones and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. The County Purchasing Procedure Act, Acts 1965, No. 52 provides:

“Ark Stat. Ann. § 17-1601. ‘From and after the passage and approval of this Act it shall be unlawful for any County Official within the several counties of the State of Arkansas to make any purchases with county funds in excess of $1,000.00, unless the hereinafter method of purchasing is followed. ...’ ”

Under Section 2 of the Act, Ark. Stat. Ann. § 17-1602(d) the Act provides:

''''Purchase shall mean and include not only the outright purchase of a commodity but also the acquisition of commodities under rental-purchase agreements or lease-purchase agreements. ...”

Subsection (b) of Section 2 [Ark. Stat. Ann. § 17-1602 (b)] makes the following requirement:

“Commodities shall mean all supplies, goods, material, equipment, machinery...purchased for or on behalf of the county.”

Section 3 of the Act [Ark. Stat. Ann. § 17-1603] provides:

“All purchases of commodities made by any county purchasing official with county funds, except those specifically exempted by this act, shall be made as follows:
(a) ‘Formal Bidding’ shall be required in each instance in which the estimated purchase price shall equal or exceed $1,500.00.
(b) ‘Informal Bidding’ shall be required in each instance in which the estimated purchase price shall equal or exceed $1,000.00 but be less than $1,500.00.
(c) ‘Open Market Purchases’ may be made of any commodities where the purchase price thereof is less than $1,000.00.
(d) No purchasing official shall parcel or split any item or items of commodities or estimates, with the intent or purpose to change the classification or to enable the purchase to be made under less restrictive procedure. ”

Section 5 of the Act [Ark. Stat. Ann. § 17-1605] provides that all contracts shall be let to the lowest responsible bidder. Section 7 requires the purchasing official to make every effort to notify all eligible bidders before purchases are made. Section 8 requires all bids to be open in public and read at the time and place specified. Section 9 [Ark. Stat. Ann. § 17-1609] makes the following requirement:

“(a) No contract shall be awarded or any purchase made until the same has been approved by the County Court, and no contract shall be binding on any county until the County Court shall have issued its order of approval.
(b) The Order of the County Court shall be properly docketed, and all documents and bids pertaining to the solicitation of bids and awarding of contracts under the purchasing procedure of this act shall be filed with the County Clerk, together with the order of the court which shall be filed by said County Clerk.
(c) No claim filed with the county for payment of any commodity, the purchase of which is regulated by this act, shall be paid, or no warrant shall be issued by the county clerk for the payment of same, until the order of the county court approving same shall have been issued and filed with the county clerk.”

Before passing to the facts, I should here note that while Ark. Stat. Ann. § 17-1609, supra, has to do with the approval of a contract before a purchase is made, the procedure for filing, presenting and allowance of claims by the County Court is regulated and controlled by Chapter 7 of Title 17 of the statutes — see Ark. Stat. Ann. § 17-701 et seq.

Now on the facts appellant readily admitted that he had allowed claims against the county in excess of THREE MILLION DOLLARS and that the County Purchasing Procedure had been followed only three times in the taking of bids. The State produced a lease-purchase contract signed by B. F. Mackey, County Judge on March 20, 1973, whereby the county acquired a D-6 Bulldozer at a total cost of $51,081.00. Frank Winburne, the accountant hired by the County Grand Jury to investigate the County’s purchasing procedure testified that he attended a meeting wherein appellant, Therion Morgan, Conrad B. Rotenberry and Mr. Tedford, the Pulaski County Assessor, were present. When asked about the purchase of the bulldozer without bids appellant took the position that the equipment was used (Tr. 59). Mr. Morgan stated it was new. At the trial appellant readily admitted that no bids were taken on the lease-purchase of the bulldozer but at that time took the position that the bulldozer was actually purchased in 1972, which would have barred an indictment on that item because of the one year statute of limitation.

On cross-examination appellant admitted that he had purchased from American Coating Company a slurry seal of asphalt for Mission Róad in the amount of $2,750.00 without requiring bids. He justified this on the basis that it was an experiment. However he admitted that the vendor had been trying to get him to try his product for four years.

Appellant’s only explanation for not requiring bids on the county assessment forms was that he relied upon Mr. Tedford to conform to whatever purchasing requirements there were. Since the majority has touched so lightly on the assessment form purchase that it is impossible for me to comprehend what actually transpired, I undertake to set the matter out in some detail.

State’s Exhibit No. 9 shows that on September 18, 1972, Requisition No. 7356, was given to Democrat Printing & Lithographing Company for 62,000 “Sets Quad Personal Assessment Lists for 1973.” On January 15, 1973, the Democrat Printing & Litho. Co. presented its claim to the County Court for payment in the amount of $8,068.72. Attached to the claim were invoices which referred to “YOUR NO. req. 7356” and showed the following information.

11/14/72 7500 sets Personal Assessment Blanks $947.62

tax 28.43

976.05

11/22/72 » " » » " 947.62

tax 28.43

976.05

11/29/72 » " " " " 947.62

tax 28.43

976.05

12/5/72 " " " " " 947.62

tax 28.43

976.05

12/11/72 7500 sets Personal Assessment Blanks $947.62

tax 28.43

976.05

12/15/72 " " t- n tt 947.62

tax 28.43

976.05

12/18/72 " " » " " 947.62

tax 28.43

976.05

12/20/72 tt tt tt tt m 947.62

tax 28.43

976.05

12/22/72 2,000 sets personal 252.74

assessment blanks tax 7,58

$260.32

On January 15, 1973, Mr. Tedford issued another requisition No. 8255 to Democrat Printing & Lithographing Co. for “see Attached invoices” in the amount of $8,068.72. The attached invoices were the invoices above described. Thus we see that there was no splitting of purchases by Mr. Tedford. The splitting was done by Democrat Printing & Litho. Co. which was obvious from the information presented with the claim.

Other invoices in the record include the presentation and allowance of a claim from Dixie Culvert Manufacturing Co., in the amount of $1,802.58, that was charged to “Road & Bridge.” Those invoices show that both invoices were dated “7-5-73”. One was #87476, and the other was #87477. Invoice #87477, was in the amount of $526.54 and invoice #87476 was in the amount of $1,284.82. These purchases were admittedly made without taking bids.

After appellant had admitted that in August 1973, the county had purchased $2,664.61 worth of steel from AFCO Steel Company without taking bids, the record on cross-examination shows the following:

“Q. When a new road is sought to be built or a new bridge is sought to be built or one is sought to be rebuilt, who has final approval of whether it will be done and how it will be done?
A. Mr. Morgan has final approval over how it will be done, and he and I usually talk together about these things and determine when and how it ought to be done.
Q. You mean, you avail yourself of his professional services in deciding whether or not to do it?
A. Yes,- sir.
Q. Did it occur to you when you purchased that steel from AFCO that it was over a thousand dollars?
A. I didn’t know it until the invoices reached my desk.
Q. Did you bring that to the attention of Mr. Morgan?
A. No, sir; because I knew it went into a bridge and I knew where the bridge was being constructed that it went into.
Q. Did you advise him in the future not to do that?
A. No, sir; I did not.
Q. Have you ever advised him not to make purchases over a thousand dollars without taking bids?
A. He has knowledge of that, sir.
Q. He has knowledge. Have you advised him?
A. Yes, sir.
Q. When did you advise him?
A. I don’t remember the exact date.
Q. Within the last five years, I assume?
A. I’m sure it was; yes, sir.”

I submit that the record contains more than substantial evidence to sustain the conviction herein — in fact it looks to me that it is supported by the overwhelming evidence.

For these reasons I respectfully dissent.

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


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    ARKANSAS DEPARTMENT OF LABOR, Dale CLINE, Director v. AMERICAN EMPLOYMENT AGENCY, et al
    74-200
    517 S.W. 2d 949
    Opinion delivered January 20, 1975

      Silas H. Brewer, Jr., for appellants.

      William A. Lafferty, Terry Matthews, James L. Sloan, Smith, Williams, Friday, Eldredge & Clark, by: Oscar E. Davis, Guy Amsler Jr., for appellees.
   John A. Fogleman, Justice.

In these consolidated actions appellees challenged the issuance of directives by Dale Cline, as Commissioner of Labor, which admittedly amounted to the adoption of rules and regulations governing operations of private employment agencies. The attack was centered upon a prohibition against the use of fictitious names by agents and employees of the agencies and the requirement that all agencies use a standard form of contract, or receipt, drawn so as to require the negotiation and execution of a new and separate contract on each referral of a job applicant to an out of state or out of city employer. Appellees also complained that the directives required the disclosure of the identity of the prospective employer to the applicant before he signed the contract, and that this would effectively bypass the agency in contracts between the applicant and the employer and deprive the agency of compensation for having brought the two together. The circuit court entered the following judgment:

2. That on or about June 13, 1972, Director Dale Cline of the Arkansas Department of Labor issued a “standard contract” form for use by all private employment agencies in the state effective July 1, 1972. Director Cline informed all private employment agencies that use of the new “standard contract” form would be a prerequisite to renewal of a license for such agencies to operate in the state. Such action by Director Cline constituted adoption of administrative rules or regulations affecting operations of private employment agencies in this state. Director Cline is without statutory authority to adopt rules and regulations regarding use of “standard contract” forms by private employment agencies in this state. Therefore, the directive of Director Cline regarding use of “standard contract” form is hereby declared null and void.
3. That on June 21, 1972, the Arkansas Department of Labor issued letters to plaintiffs advising that their contract forms and their applications for license renewal were being disapproved for non-compliance with the “standard contract” form adopted by the Arkansas Department of Labor for general use (T. 135) by private employment agencies in the state effective July 1, 1972. Such action by the Arkansas Department of Labor constituted adoption of administrative rules or regulations governing operations of private employment agencies in this state. The Department of Labor is without statutory authority to issue administrative rules and regulations governing operations of private employment agencies in this state and the directives issued by the Arkansas Department of Labor on June 21, 1972 are therefore declared to be null and void.
4. On June 13, 1972, the Director of the Department of Labor issued a directive to all private employment agencies regarding registration and use of fictitious or “desk” names effective July 1, 1972. This directive further advised that the practice of using fictitious or “desk” names would not be permitted after July 1, 1972. The directive issued by the Director of Labor on June 13, 1972 constituted adoption of administrative rules or regulations regarding use of fictitious or “desk” names. The Director of Labor is without statutory authority to issue administrative rules or regulations regarding use of fictitious or “desk” names, and the directive of the Director of Labor issued on June 13, 1972 is hereby declared null and void. Notwithstanding the above, however, the practice by private employment agencies of using fictitious or “desk” names may violate Ark. Stat. Ann. § 81-1003 (Repl. 1960), and this order in no way affects the right of the Director of Labor for the State of Arkansas to initiate duly authorized procedures to revoke the license of any private employment agency engaging in the practice of using fictitious “desk” names.
5. That the “Rules Governing Private Employment Agencies” adopted on September 22, 1969 by Defendant Arkansas Department of Labor and Defendant Dale Cline’s predecessor in office were adopted by defendants outside their statutory authority and are, therefore, void in their entirety.
6. That the defendants be, and they are hereby, prohibited from enforcing any of the administrative rules or regulations set forth above.

Appellant lists two points for reversal, viz:

I
Appellants possess legislatively conferred rule-making authority regarding regulation of private employment agencies, and the lower court’s contrary holding is erroneous as a matter of law.
II
Appellants properly exercised lawfully conferred rule-making authority regarding regulation of private employment agencies in the circumstances of this case.

As to point II, we agree with appellees that the action of the trial court was correct, insofar as the rules pertaining to the standard contract and the use of fictitious names are concerned, for a reason not relied upon by the circuit judge. It was stipulated that, in the promulgation of these directives, there had been no compliance with Ark. Stat. Ann. § 5-703 (Supp. 1973), a section of the Arkansas Administrative Procedure Act [Ark. Stat. Ann. § 5-701, et. seq. (Supp. 1973)]. Appellant contends that this act exempts it from its provisions. It is in error. The Employment Security Division of the Arkansas Department of Labor is specifically exempted, but neither the Department of Labor nor the Commissioner of Labor is. We can neither extend the exemption to them, nor can we find any legislative intent to extend the exemption beyond the agencies carefully and specifically enumerated.

Appellant finds express authority for the rules promulgated by him in Ark. Stat. Ann. §§ 81-101 - 123 (Repl. 1960). We are unable to find that authority. Giving the Commissioner of Labor power to administer and enforce all rules and regulations which it is the duty of the Department of Labor to administer and enforce, as § 81-102 does, certainly does not confer the power to adopt them. Granting to the Department of Labor and the Commissioner of Labor all the powers and duties previously conferred upon the Bureau of Labor & Statistics and the Commissioner of Labor & Statistics, as § 81-106 does, is not a grant of any powers or authority these agencies did not have.

Appellant places his principal reliance upon §§ 81-107, 81-109 and 81-110. In § 81-107 (a) the legislature gave appellant the power, jurisdiction and authority to enforce all labor laws in the state the enforcement of which was not otherwise specifically provided for, and all rules made pursuant to § 81-110. We find no grant of rule-making power in § 81-110, which relates solely to the notice and hearing required before any rule is adopted, amended or repealed. So § 81-107 (a) only empowers the Commissioner to enforce rules he is otherwise authorized to make, and any rules he might make under any implied rule-making power inherent in his duties to enforce labor laws.

Appellant also argues, however, that there is no limitation upon the Commissioner’s rule-making power because the legislature, after having specifically authorized, by § 7 (d) of Act 161 of 1937, the Commissioner of Labor to propose to the Industrial Board rules for the prevention of industrial or occupational accidents or diseases, and for rendering public buildings safe, amended § 7 by Act 273 of 1951 to omit subsection (d). In this connection, we note that § 10 of Act 161 remains intact and appears as Ark. Stat. Ann. § 81-109. By that section the Commissioner is specifically empowered, in addition to other powers and duties conferred upon him by law, to make reasonable rules for the prevention of accidents or of industrial or occupational diseases, or for making places of employment, places of public assembly and public buildings safe. We cannot find any other language in §§ 81-101-123 expressly granting rule-making power. Any express grant must be found in the laws the Commissioner is called upon to enforce.

We turn then to Ark. Stat. Ann. §§ 81-1001 - 1007 (Repl. 1960) relating to employment agencies. It requires that they be licensed by the Commissioner of Labor and authorizes the Commissioner to bring actions for violation of the provisions of the required bond, conditioned that licensees will not violate any of the duties, terms, conditions, provisions or requirements of Act 4 of the Extraordinary Session of 1923 (Ark. Stat. Ann. §§ 81-1001 - 1007). It also authorizes the Commissioner to revoke any license granted under the act, for violations of the act. We have rejected the argument that this act granted any discretion to the Commissioner in issuing a license. Cline v. Plaza Personnel Agency, Inc., 252 Ark. 956, 481 S.W. 2d 749. In doing so, we used this significant language:

It is also argued that the naked authority to issue a license carries with it, by implication, the power to exercise reasonable discretion in granting or refusing to grant such a permit. The fallacy in that argument lies in its assumption that the licensing officer may decide for himself what is a reasonable basis for rejecting an application. Discretionary power may be delegated by the legislature to the licensing authority, but it is essential that reasonable guidelines be provided in the statute. Walden v. Hart, 243 Ark. 650, 420 S.W. 2d 868 (1967). Inasmuch as the statute now in question affords no guidance whatever for the licensing authority, we must conclude that no discretion in the matter has been invested in the Director.

It only follows that the Commissioner could not have either express or implied authority to impose additional conditions upon the granting of licenses by rules and regulations he might adopt.

Appellant does not point out, nor do we find in §§ 81-1001 - 1007 any express grant of rule-making power. Sec. 3 of Act 4 of the Extraordinary Session of 1923 (see Ark. Stat. Ann. § 81-1003) makes rather stringent requirements of licensed employment agencies regarding records to be kept, the collection of fees, the giving and publication of information and advertisements and such matters. It does not interfere with the right of the parties to contract, and we have said that the portion of this section which limited the amount of the fee a licensed agency might charge was unconstitutional. Alsup v. State, 178 Ark. 170, 10 S.W. 2d 9. Although the constitutionality of the section is not in issue here, both the administrative agencies and the courts of this state should be extremely sensitive to, and give due regard to, constitutional limitations in this field. We should certainly not construe an act to confer a power which infringed upon constitutional rights to contract with reference to fees in such matters. It is our duty to construe an act so that it will meet constitutional tests. Gibbs v. State, 255 Ark. 997, 504 S.W. 2d 719. In any event, we nowhere find express authority for making the rules promulgated by appellant.

Of course, this does not necessarily mean that the Commissioner does not have implied power to adopt rules which are necessary to enable him to properly and effectively perform his duty to enforce these laws. See 1 Am. Jur. 2d 894, Administrative Law § 97; 73 CJS 416, Public Administrative Bodies & Procedure, § 95. Appellant states that the manifest purpose of these directives by him is to ensure full disclosure of pertinent information to all utilizing the services of private employment agencies. No other reason for these rules is suggested by him. This is necessary, he says, to his enforcement of the statute making it unlawful for employment agencies to publish any false or misleading information, representation, notice or advertisement.

There was testimony that fictitious or “desk names” for employees were resorted to by agencies to protect them from telephone harassment at their homes. Married women are also permitted to use their maiden names. There was also testimony that the Commissioner’s contract requirements required the agencies to disclose the name of the employer to the applicant in a contract submitted to the applicant for signature, and that a new contract must be signed before each reference. This enabled the applicant to decline to sign the contract and make a direct application to the employer, and, if he obtained employment, to avoid paying the agency, even though he utilized the information furnished by it.

Even if appellant does have the implied rule-making power he asserts, we cannot agree with appellant’s argument that either of his directives was necessary to expedite his enforcement of the prohibitions stated in § 81-1003 in the following language:

***No licensed person conducting an employment agency shall publish or cause to be published any false or fraudulent or misleading information, representation, notice or advertisement; all advertisements of such employment agency by means of cards, circulars, or signs and in newspapers and other publications, and all letterheads, receipts, and blanks shall be printed and contain the licensed name and address of such employment agent and the word “agency,” and no licensed person shall give any false information, or make any false promise or false representation concerning an engagement or employment to any applicant who shall register or apply for an engagement or employment or help.

As a matter of fact, we do not see how they would aid at all.

We note that appellant also argues that his directives were valid as interpretive rules which he says are permitted, though not binding on the courts, whenever an administrative agency finds that it is necessary or advisable that its interpretation of a legislative act be stated in order that the application of the act to be made by the agency may be known. We cannot see just what the Commissioner was attempting to interpret by these directives. If the Commissioner considered the prohibition against publication of false, fraudulent or misleading information or that against giving false information, or making a false representation concerning an engagement or employment to be applicable to the use of fictitious names by employees of an agency, we unhesitatingly disagree.

Since we find no error in the trial court’s action, the judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Abb JOHNSON v. The EUDORA BANK and Myrtle HANDIE
    74-188
    517 S.W. 2d 957
    Opinion delivered January 20, 1975

      Dickey, Dickey & Drake, Ltd., for appellant.

      W. K. Grubbs Sr. and Holloway and Haddock, for appellees.
   Conley Byrd, Justice.

This action was commenced by appellant Abb Johnson pursuant to Ark. Stat. Ann. § 85-4-301 et seq. (Add. 1961), to recover from appellee Eudora Bank (hereinafter referred to as “Bank”) upon a $2,500 check executed by appellee Myrtle Handie to Johnson. The check had been sent through the Commercial Bank and Trust Company in Monticello on or about March 17, 1972, and the Eudora Bank had held the check as a cash item until September 29, 1972, when it stopped payment at the request of Handie. The “Bank” admitted that Handie had executed the check but denied that the check was deposited in Johnson’s account or that the “Bank” had improperly dishonored the check. In addition the “Bank” by way of cross-complaint alleged that the check was executed for the purchase of a car and that it had been held at the request of Handie until Han-die received the title papers to the car. The “Bank” prayed that if Johnson should have judgment against it, it should have judgment with a purchase money lien over against Han-die.

Handie answered the cross-complaint of the “Bank” and by way of counterclaim alleged that Johnson, his agent, servant or employee had misrepresented the condition of the automobile and that he had failed to deliver legal title. By way of relief Handie sought damages in the amount of $3,500.

The trial court ruled that Johnson was entitled to a judgment against the “Bank” in the amount of $2,500 but that in the event the jury should grant Handie a rescission of the purchase contract between her and Johnson, then Johnson would be entitled to possession of the automobile upon restitution of $570 downpayment and the judgment against the “Bank” would be set aside. The jury found the issues in favor of Handie and from a judgment entered thereon Johnson appeals setting forth the following points for reversal, to-wit:

“POINT I. The lower court erred in not granting the appellant’s motion for directed verdict and motion for judgment notwithstanding the verdict, against the appellee, Handie.
POINT II. The lower court erred in giving court’s Instruction No. 16.
POINT III. The lower court erred in overruling the appellant’s motion for directed verdict against the appellee, “Bank,” and further erred in granting to the “Bank” the right of subrogation.”

POINT I. Under this point Johnson contends that there is no substantial evidence to support the jury’s finding that Jim Livingston d/b/a West Side Motor Company was his agent, servant or employee. We find no merit in this contention. The record shows that from 1962 to 1965, Johnson owned and operated a used car lot in Pine Bluff and that during part or all of that time Jim Livingston worked for him as a salesman. At the time of the occurrence herein, Johnson was a salesman for Trotter Ford, a new and used car dealer in Pine Bluff, and as such would not have been permitted to operate a used car lot while in Trotter’s employment. Jim Livingston had little or no financial means and depended upon Johnson to finance the operation of West Side Motor Company. Handie purchased the automobile in question from Jim Livingston d/b/a West Side Motor Company, but when Livingston made out or filled in the check signed by Handie, he filled in Johnson’s name without any mention of West Side Motor Company. However, when Livingston filled in the title papers he showed West Side Motor Company as the seller-dealer. Because West Side Motor Company did not have an automobile dealer’s license, the State Motor Vehicle Division would not accept the title that Livingston had given to Handie. Sometime in August, the “Bank” received a substitute title from Hertz Rent-a-Car made out to Handie. When the “Bank” notified Handie to come in and consummate her financial arrangements for the automobile loan, she then requested that the “Bank” stop payment on the check.

Johnson testified that he only floor-planned the automobiles for Livingston for $100 on each automobile purchased and that to do that he had made financial arrangements with a Monticello bank. He stated that Livingston would go either to St. Louis or New Orleans and buy a number of automobiles. Livingston’s vendor would send the titles with a sight draft to Livingston’s bank who would pay for the titles, then the title would be sent to Johnson’s bank at Monticello who would pay Livingston for the titles by extending credit to Johnson. In turn Johnson’s bank would release the titles when Livingston paid the amount of the floor-planning on each automobile. Johnson could not say whether he had ever seen the title to the car here involved. Livingston on the other hand testified that he would go to New Orleans and purchase a quantity of automobiles and cause sight drafts and the titles to be sent directly to Johnson’s bank in Monticello. Reginald Glover, an employee of the Monticello bank testified that he only did business with Johnson and knew nothing about West Side Motor Company.

Thus when we consider that Livingston had previously worked for Johnson; that he had little or no financial means; that Livingston purchased automobiles and sent sight drafts through Johnson’s bank; and that the check in question was made out to Johnson by Livingston, we find that there is substantial circumstantial evidence to support the jury’s finding that Livingston was Johnson’s agent.

POINT TI. As far as the record shows the first time Handie claimed the right to rescind the contract occurred after all parties had rested. Thus Johnson had no opportunity to determine whether Handie, who had the use of the automobile during the time from March through September of 1972, had properly revoked her acceptance of the delivery of the property and had no occasion to make inquiries with respect thereto. Consequently, we find that the trial court abused its discretion in considering the pleadings as amended to conform to the proof when it gave instruction No. 16. It must be remembered that the proof here admitted would also have been admissible to prove the damage issue prayed for and therefore no objection could have been sustained to the admissibility of the evidence.

POINT III. Johnson here contends that the “Bank” should not be allowed the right of subrogation to Handie’s rights against Johnson, under Ark. Stat. Ann. § 85-4-407 (Add. 1961). We need not consider the provisions of the Uniform Commercial Code with reference to subrogation because subrogation is not here involved. The record shows that Johnson at the trial conceded that his $2,500 judgment against the “Bank” could be reduced by the amount that Handle should recover against him. Consequently, the trial court committed no error in accepting the parties’ practical solution in offsetting the conflicting judgments.

Reversed and remanded.


author: Carleton Harris, Chief Justice.

text:
    John Lee RANSOM v. STATE of Arkansas
    CR 74-132
    518 S.W. 2d 490
    Opinion delivered January 27, 1975

      Harold L. Hall, Public Defender, by: Jewel Brown, Dep. Public Defender, for appellant.

      Jim Gay Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, John Lee Ransom, was charged by information with first degree murder, but subsequently entered a plea of guilty to the crime of second degree murder and was sentenced to 21 years confinement in the Arkansas Department of Correction, the maximum sentence that could be imposed. Thereafter, Ransom filed a petition under the provisions of Criminal Procedure Rule I, alleging various grounds for relief; however, at the hearing held on April 10, 1974, appellant abandoned all allegations except one, viz., that as a matter of right, 5 l/2 months spent in pre-trial incarceration should have been credited on the sentence imposed. This is the sole basis of appeal.

The trial court refused to grant relief, stating that Ransom spent his time in jail under a first degree murder charge and credit for time in jail would not apply where a plea was later entered to second degree murder. In disposing of this appeal, it is not necessary that this question be discussed.

Petitioner relies upon the case of Shelton v. State, 255 Ark. 932, 504 S.W. 2d 348, but we do not agree that this case supports appellant’s argument. The sole question there was whether Shelton was entitled, as a matter of right, to credit for the full time he was incarcerated, and we affirmed the circuit court’s ruling that Shelton was not, as a matter of right, so entitled. It is argued, however, that language in the opinion indicates that, in a proper case, the credit would be held to be mandatory. It might be added that nothing in the Shelton opinion reflects that Shelton was indigent, and this is an important fact.

The case that is actually applicable to the facts here at hand is Smith v. State, 256 Ark. 425, 508 S.W. 2d 54 (1974), such case containing a comprehensive discussion of the question of when one is entitled to credit on his sentence for jail time served. Federal cases which hold that the state’s refusal to give credit for pre-trial detention is an unconstitutional discrimination on the basis of wealth prohibited by the Fourteenth Amendment are listed, it being pointed out that financial inability to post bond should not cause an indigent to spend more time in confinement than one whose wealth enables him to be admitted to bail. Smith contains language on this point which is particularly pertinent to the case at hand, this court stating:

“We think the result appellant seeks would be clearly indicated if he had been held in confinement before trial solely because of his indigency. But this is not the case. Although petitioner argues vigorously that discrimination in the matter of jail-time credit because of indigency violates the Fourteenth Amendment, he does not even allege that he was unable to make bail because of indigency.” [Our emphasis].

Likewise, there is no allegation in the petition in the present case that Ransom spent the 5 Vz months in jail (which he here seeks credit for) while awaiting trial because of indigen-cy, i.e., a financial inability to make the bail which had been set by the circuit court. The record only reflects that prior to the commencement of the hearing, counsel stated that petitioner wished to proceed solely upon one issue, “That the petitioner’s sentence should be reduced by the 5 Vz months spent in jail awaiting trial inasmuch as the petitioner received the maximum sentence for Second Degree Murder.” It is not shown whether his then counsel (at the time of the plea), a practicing attorney of Little Rock, was retained or appointed, and we reiterate that there is absolutely nothing in the record to indicate that the time spent in jail was occasioned by in-digency.

Accordingly, in determining this case, it is only necessary to refer to the language used in Smith, herein quoted.

It follows that there is no merit in the argument advanced here on appeal.

Affirmed.

Byrd, J, concurs.

      See, however, Ray v. State, 256 Ark. 695, 509 S.W. 2d 830 (1974).

      The only time in which the word “indigent” appears in the record is that Ransom’s petition says that he is an “indigent inmate”. This fact, of course, does not mean that he was indigent prior to the trial, or at the time of trial. Appellant’s statement of the case includes the sentence, “Appellant’s bond was reduced to Ten Thousand Dollars on the 9th day of November, 1972, but due to appellant’s indigency, bond was never executed. ” The statement of the case, of course, is not evidence, and cannot be considered by this court. The record does not reflect that a hearing was held to reduce bond, but only that, after hearing, the bail was set at 110,000.


author: George Rose Smith, Justice.

text:
    THE CORNER, INC v. STATE of Arkansas
    74-87
    518 S.W. 2d 506
    Opinion delivered January 27, 1975

      Woodward & Kinard, Ltd., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, a nonprofit corporation operating a private club in Miller county, appeals from one of two companion orders that were entered by the circuit court in two cases that were consolidated for a hearing. In the first case the prosecuting attorney, under Ark. Stat. Ann., Title 34, Ch. 1 (Repl. 1962), obtained on August 23, 1973, a temporary order padlocking the club until a final hearing could be had after the 5-day notice required by Section 34-104. That case was heard on August 30, with the court entering an order that permitted the club to reopon but enjoined future violations of law upon the premises. The appellant does not question that order, which conformed to the statute, as we have construed it. Lawson v. State, 226 Ark. 170, 288 S.W. 2d 585 (1956).

The appeal is from the court’s order in the companion case. The prosecuting attorney filed that complaint four days after he filed the first one. He asked that the appellant corporation be involuntarily dissolved, as a public nuisance, under Ark. Stat. Ann. § 64-1918 (e) (Repl. 1966). Only three days later, on August 30, both matters were presented to the court, despite the appellant’s insistence that it was entitled to 20 days for the filing of its answer in the second case. The court offered to postpone the hearings only upon condition that the club remain padlocked. The appellant refused to agree to that condition. The court then found that the two cases presented similar issues, that some 30 witnesses were expected to testify in each case, and that there was no need for the testimony to be heard twice. Both cases were accordingly tried together on August 30. In the second case the court entered the order now on review, dissolving the corporation as a public nuisance.

The court was in error. The second case was not a summary proceeding such as the first one. It was a plenary proceeding in which the State asked that the corporation be permanently and finally dissolved, presumably at a financial loss to its members. In such a proceeding, as in any other lawsuit, the statute allows the defendant 20 days in which to file an answer or other pleading. Ark. Stat. Ann. § 27-1135 (Repl. 1966). The cases uniformly hold that the courts cannot reduce the time allowed by the legislature for the filing of an answer. Elum v. Kling, 90 So. 2d 881 (La. App. 1956); McCarty v. McCarty, 300 S.W. 2d 394 (Mo., 1957); Lakeland Water Dist. v. Onondaga County Water Authority, 24 N.Y. 2d 400, 248 N.E. 2d 855 (1969). We took a similar position in Henry Quellmalz Lbr. & Mfg. Co. v. Roche, 145 Ark. 38, 223 S.W. 376 (1920), where, upon facts not quite like those here, we said: “The court called the case for trial before the twenty days under the statute required of Roche to answer had elapsed. This was error.”

Reversed.


author: George Rose Smith, Justice. J. Fred Jones, Justice,

text:
    Wayne BRIDGES and Lamar HUGHES v. STATE of Arkansas
    CR 74-89
    519 S.W. 2d 756
    Opinion delivered January 27, 1975
    [Rehearing denied March 3, 1975.]

      Jeptha A. Evans, for Bridges; William G. Wright, for Hughes, appellants.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Dep. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Wayne Bridges, Lamar Hughes, and Mike Hurst were jointly tried upon a charge of embezzlement, were found guilty, and were each sentenced by the jury to imprisonment for three years. Bridges and Hughes have appealed, arguing several points for reversal. Their most serious contention is that the State’s testimony, even if accepted as true, established the offense of larceny rather than that of embezzlement. This contention must be sustained.

The offense occurred at the Rock Tavern, in the city of Paris, at about closing time on the night of March 8, 1973. Charlotte Kuykendall, an employee, was in charge of the tavern. Four customers were present: The appellants Bridges and Hughes, both age 23, their codefendant Hurst, and Sue Sims.

The proof tends to show that Charlotte asked the other four to co-operate with her in faking a robbery, in return for her promise to provide them with at least a case of free beer. The others agreed. One of the five, probably Bridges, took some $300 from the cash register and hid it outside the building. Charlotte then called the police and reported the alleged robbery.

The police arrived and evidently became suspicious, for they took all five participants to headquarters for questioning. Both appellants at first gave written statements describing an armed robbery committed by two men who came in the tavern after closing time. Both soon retracted their statements, Bridges admitting orally that the robbery had been faked and Hughes making a similar written admission. The missing money was quickly found.

The charge of embezzlement was based upon Ark. Stat. Ann. § 41-3927 (Repl. 1964), reading in part as follows:

If any clerk, apprentice, servant, employee, agent or attorney of any private person . . . shall embezzle or convert to his own use . . . without the consent of his master or employer, any money . . . belonging to any other person, which shall have come to his possession, or under his care or custody, by virtue of such employment, ... he shall be deemed guilty of larceny, and on conviction, shall be punished as in case of larceny.

The statute has been in force since 1838 and has been construed in many cases. In Atterberry v. State, 56 Ark. 515, 20 S.W. 411 (1892), an employee of a store had taken articles of clothing that were kept for sale. We held the offense to be larceny, saying that the articles “were legally in the possession of the owner, even if for a time left in the custody of the salesman; and an appropriation of them by the latter was a trespass on the possession of the former, within the meaning of the law defining larceny.” That holding was reaffirmed recently in Edwards v. State, 244 Ark. 1145, 429 S.W. 2d 92 (1968), where we held that a clerk in charge of a bus station, who took money from a drawer, was properly chargeable with larceny, as he merely had custody of his employer’s property.

In Fleener v. State, 58 Ark. 98, 23 S.W. 1 (1893), we held that the statutory reference to property “belonging to any other person” means any person other than the employee rather than any person other than the employer. We went on to say:

This is not in conflict with Powell v. State, 34 Ark. 693, which was an indictment against a general household servant, who, having the custody of some tools under the superior possession of the master, appropriated the tools to his own use. This was held to be larceny, and not embezzlement, and the decision is in accord with the weight of authorities. The same authorities hold that when the servant comes into possession of the property before the master, and his possession is by reason of his relation as such servant, and he appropriates it to his own use before it comes into the possession of the master, and while yet in his possession, the fraudulent appropriation thus made is embezzlement, and not larceny. See note 98 Am. Dec. 126-129.
The rule of construction in New York, Missouri and Minnesota, and perhaps other States, is considered necessary in order that there be not a hiatus in the law, as there would otherwise seem to be.

The crime of embezzlement is purely statutory and is separate and distinct from larceny. Compton v. State, 102 Ark. 213, 143 S.W. 897 (1911). In Hall v. State, 161 Ark. 453, 257 S.W. 61 (1923), we sustained the State’s right to allege separate counts of larceny and embezzlement arising from the same transaction, where it might be doubtful which would be established by the proof. In that connection we said:

Larceny and embezzlement belong to the same family of crimes. If the actual or constructive possession of the property was in the owner, then the wrongful conversion would be larceny, and not embezzlement. There must be lawful possession in the defendant at the time of the conversion to constitute embezzlement. The distinguishing feature of embezzlement is that the taking essential to larceny is not required, a breach of trust taking its place.

In the case $t bar the possession of the property, as in Alterberry and Edwards, seems to have been that of the owner, the employee having mere custody. Consequently the State’s proof established larceny, rather than embezzlement as charged in the information. The Attorney General is mistaken in arguing that the appellants waived the point now at issue by not objecting to the information. The information was not fatally defective; it simply charged the wrong offense, in the light of the subsequent proof. The defendants were under no duty to alert the prosecution to that possibility.

On the other hand, we cannot sustain the contention, argued by Hughes, that the evidence is insufficient because (a) Hughes had no position of trust with regard to the money and (6) Charlotte Kuykendall did not physically take the money from the cash register. If, as the State’s proof tended to show, all five of those present, in return for a promised reward, abetted Charlotte by agreeing to conceal the truth, they were guilty as principals under Ark. Stat. Ann. § 41-118.

Hughes also argues that the trial court erred in refusing to grant his repeated requests for a separate trial. The original pretrial motion for a severance was properly denied, as no basis for the motion was then shown. During the trial, however, it developed that Hughes’s counsel was handicapped in his cross-examination of the officers, because the court refused to allow the jury to consider in Hughes’s defense certain admissions by the other participants that were detrimental to Bridges. Problems also arose concerning cross-implicating confessions. Grooms v. State, 251 Ark. 374, 472 S.W. 2d 724 (1971); Moshy and Williams v. State, 246 Ark. 963, 440 S.W. 2d 230 (1969). In view of those circumstances a severance should be granted if the cases are retried.

We need not discuss the appellants’ other contentions, for they involve matters not apt to arise upon retrial.

Reversed and remanded for further proceedings.

Jones, J., dissents.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority opinion in this case and I would affirm.

When Fleener v. State, 58 Ark. 98, 23 S.W. 1, was decided in 1893, the statute was subject to strict construction then as it is now. In Fleener we held that the statutory reference to property “belonging to any other person” means any person other than employee rather than any person other than employer. The decision in Fleener was predicated upon the logical reasoning reflected in Powell v. State, 34 Ark. 693, and it is my opinion the reasoning in Powell is still sound. The Powell decision was based on the weight of authority holding that:

“[W]hen the servant comes into possession of the property before the master, and his possession is by reason of his relation as such servant, and he; appropriates it to his own use before it comes into the possession of the master, and while yet in his possession, the fraudulent appropriation thus made is embezzlement, and not larceny.”

The majority apparently rely on our decision in Atterberry v. State, 56 Ark. 515, 20 S.W. 411, where in sustaining a conviction for larceny of goods by a clerk in a store who had authority to sell them, we said:

“They [the goods] were legally in the possession of the owner, even if for a time left in the custody of the salesman, and an appropriation of them by the latter was a trespass on the possession of the former, within the meaning of the law defining larceny.”

In Atterberry the defendant was charged with larceny. This court in Atterberry pointed out:

“The articles taken were kept for sale by their owner in a store in which E. C. McBel had authority to be present and sell the goods. They were legally in the possession of the owner, even if for a time left in the custody of the salesman. ...”

The appellants in Atterberry objected to an instruction given by the trial court pertaining to the appellants as accessories to larceny and in refusing to charge the jury that:

“In larceny the larceny is complete the moment the goods are taken in possession by the person stealing same; and that if, after that, one receives the goods knowing them to have been stolen, this, of itself, could not constitute the crime of larceny on the part of one so receiving them.”

The question before this court in Atterberry was stated as follows:

“The appellant alleges as a ground for reversal that the verdict is not supported by the evidence. In determining it we are called to decide whether the evidence warranted a finding that he was guilty of any offense, and if so, whether it was larceny, or some other crime, as embezzlement or receiving stolen property.”

The above statement by the court is the only place in Atterberry where the word embezzlement appears.

Assuming that the appellants in Atterberry argued that the evidence was directed to the crime of embezzlement rather than to larceny, the crime charged; the appellants in Atterberry would have been contending the reverse of what the appellants contend in the case at bar. In the case at bar the appellants contend, and the majority so hold, that the crime charged was embezzlement and that the crime proved was larceny. In Atterberry we affirmed the judgment and in the case at bar the majority have reversed.

In the case at bar the employee or servant was not one who merely “had authority to be present and sell goods.” While the servant in the case at bar did have authority to be present and sell beer, she had the more responsible and apparently the exclusive authority over the cash register and possession and control of its contents. She ran the place for her employer. It was not the beer that was stolen from the premises in this case; it was the cash from the cash register that was embezzled. In Atterberry this court did not say a conviction for embezzlement would not have been sustained under the evidence in that case if the indictment had charged embezzlement rather than larceny. Certainly we did not say that the judgment would have been reversed had embezzlement been charged and the conviction was based thereon.

In the case at bar I do not contend the judgment should have been reversed if larceny had been charged and the appellants had been convicted for larceny. It is simply my contention that the judgment in this case should not be reversed and the state put to the expense of another trial under the pleadings and evidence in this case. In other words, I would affirm the judgment under the charge of embezzlement on the evidence of record in this case. I do not say I would not have affirmed a conviction for larceny under the evidence in-this case had the appellants been charged with the crime of larceny.

I would affirm.


author: Lyle Brown, Justice.

text:
    SOUTHWESTERN ELECTRIC POWER CO. & BEAVER WATER DISTRICT v. Ted P. COXSEY, Chancellor
    74-216
    518 S.W. 2d 485
    Opinion delivered January 27, 1975

      Richard L. Arnold, G. William Lavender, Leonard Greenhaw and Waller R. .Yihlork, for petitioners.

      James F. Dickson, for Amicus Curiae, Carroll Electric Cooperative Corp.
   Lyle Brown, Justice.

Carroll Electric Cooperative Corporation (Carroll) filed a petition for declaratory judgment. The defendants, appellants here, were Southwestern Electric Power Company (Swepco) and Beaver Water District (Beaver). It was alleged that Swepco was furnishing electric energy to Beaver and that such territory being serviced came under a certificate of convenience and necessity issued by the Arkansas Public Service Commission (APSC) to Carroll. The defendants demurred to the complaint, contending that the APSC had exclusive jurisdiction of the matter. The demurrers were overruled and Swepco and Beaver come to this court seeking a writ of prohibition directed to the Benton County Chancery Court. It is agreed that the single issue before us is whether APSC is the exclusive forum for the resolution of the dispute.

Carroll is a cooperative organization engaged in the sale of electric energy to its members in Benton County and surrounding areas. It operates in areas allocated to it by APSC. Swepco is in the same business in an area roughly described as the western one-fourth of the State, including certain allocated areas in Benton County. Beaver is a water district chartered by the Circuit Court of Benton County. It impounds, transmits and sells water to various municipalities in northwest Arkansas.

The APSC, several years ago, awarded to Carroll a certificate of convenience and necessity to serve consumers in Sections 4, 5, 6, 7, and 8 in Township 18 north, range 29 west in Benton County. In that area are located water pumps and a water treatment plant belonging to Beaver. In 1972 an electric service contract was executed between Swepco and Beaver. The contract provided for electric service at an existing point of connection located outside the described sections and in Swepco’s allocated territory. From that point the electricity would run over lines belonging to Beaver and into the area we have described as being allocated to Carroll. The energy so transferred would serve Beaver’s water pumps and water treatment plant. It was the described contract and the service thereunder that generated the complaint filed by Carroll.

In support of its contention APSC is vested with exclusive authority in the matter before us, Swepco relies substantially on several statutes. The first citation is Ark. Stat. Ann. § 73-201 (d), (d) 1, and (d) 2 (Supp. 1973). It is contended that those statutes support the proposition that all three parties to this litigation are public utilities. We are next referred to the powers and duties of the APSC as reflected in Ark. Stat. Ann. § 73-202 (a) (Repl. 1957). That statute makes it the duty of the APSC to “supervise and regulate every public utility in this Act defined, and to do all things, whether herein specifically designated, that may be necessary or expedient in the exericse of such power and jurisdiction, or in the discharge of its duty”. It is next pointed out that complaints against utilities shall be made in writing to the APSC “setting forth any act or thing done or omitted to be done by any public utility . . . .” Ark. Stat. Ann. § 73-216 (Repl. 1957). It is contended that 73-216 and rules adopted by the APSC provide a full and complete procedural scheme for the filing, hearing, and determination of complaints. Statutory-wise it is finally pointed out that the law makes it the duty of the APSC to bring suit against any person or corporation in violation of the Act, Ark. Stat. Ann. § 73-235 (Repl. 1957).

Petitioners, Swepco and Beaver, rely heavily on our case of Southwestern Gas and Electric Co. v. City of Hatfield, 219 Ark. 515, 243 S.W. 2d 378 (1951). The final determination to be made in that case was which of two competing electrical companies would in the future serve the electric distribution systems in the towns of Hatfield and Cove. The case was. naturally before the APSC because it involved the sale of a utility, which action is required by statute to first gain the approval of APSC, Ark. Stat. Ann. § 73-253 (Repl. 1957). The primary question — in fact the only question — raised by Carroll in the instant suit is whether, under existing certificates from the APSC, it has the exclusive legal right to service Beaver. The legislative and administrative duties of APSC were exercised when the certificates were awarded. Carroll is saying: “We hold an exclusive franchise from the APSC to service the area upon which Swepco has encroached. We want Swepco ejected.”

Justice Millwee, in the Hatfield case, affords a thorough and scholarly treatment of the problem before us. We think the rule in Hatfield can be succinctly paraphrased. The APSC is a creature of the Legislature and its duties are primarily legislative and administrative; it is not a judicial body. However, when the final act in a given case before the Commission is legislative, that body is empowered to determine legal questions which are incidental and necessary to the final legislative act. In the case before us the end result would determine, as argued by Swepco and Beaver, which electrical corporation would serve Beaver; however, that result would hinge on the court’s interpretation of the franchises already in existence. Of course the judgment of the Commission, if unfavorable to Swepco, would not prohibit any interested party from seeking legislative action by APSC to reallocate the territory. In oral argument Swepco advanced the theory that a judgment unfavorable to it might be res judicata as to such relief, but we do not agree, Ark. Stat. Ann. § 73-230 (Repl. 1957).

Since we conclude that the legal principles enunciated in Hatfield control our conclusion here, we see no point in analyzing every citation of authority. Furthermore, we have carefully considered those cases and conclude that they are not particularly helpful.

In Prentiss v. Atlantic Coastline Company, 211 U.S. 210 (1908) is recited by Justice Holmes a clear distinction between legislative and judicial powers as it applies to public utilities administrative bodies. We approved the quotation in Hatfield:

A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power.

In the case at bar the APSC has already fulfilled its legislative and administrative duties by making a determination awarding the area which includes Beaver to Carroll. The latter now seeks to get that order enforced. That is a judicial function. In fact, the Legislature contemplated there would at times be need for court action to enforce APSC orders.. The statute, Ark. Stat. Ann. § 73-235 (Repl. 1957) authorizes the APSC to take such court action. That authority is certainly not exclusive of the fundamental right of a certificate holder to likewise resort to the court for the enforcement of its rights under an existing certificate.

Petition denied.


text:
    James H. COLEMAN v. STATE of Arkansas
    CR 74-133
    518 S.W. 2d 487
    Opinion delivered January 27, 1975

      Harold L. Hall, P.D., by: Robert L. Lowery, Deputy, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant James H. Coleman sought credit for time spent in pretrial incarceration by petition for postconviction relief under Criminal Procedure Rule 1. Credit was denied by the circuit court which sentenced him. We affirm.

Coleman was found guilty of robbery by a jury on October 12, 1973, and sentenced to five years in the Department of Corrections pursuant to the jury verdict. He contended that since the sentence was imposed by the jury, the conclusion that he was denied credit for time spent in jail prior to his trial is inescapable. Yet we have no means of knowing whether the jury was aware of the time he had spent in jail.

The trial judge found that appellant was first confined on the charge of robbery on March 30, 1973, that bail was fixed at $5,000, but that appellant remained in confinement until the date of his trial, and held that he was not entitlted to credit for this time spent in jail. Coleman testified that he was unable to make bond because he did not have the money and had no property to put up as security for bail. The judge noted that the record disclosed the following: on May 7, 1973, Coleman’s case was passed to enable him to employ a lawyer; on May 15, the public defender was appointed to represent him; on June 4, Coleman entered a plea of not guilty and waived trial by jury, whereupon the case was set for trial before the court without a jury on July 18; on July 16, the case was passed until September for setting, on motion of Coleman; and on August 29, the case was set for jury trial on October 12.

Our statute on the subject provides that the matter of allowing credit for time spent in pre-trial incarceration is addressed to the discretion of the trial court. Ark. Stat. Ann. § 43-2813 (Supp. 1973). We held in Shelton v. State, 255 Ark. 932, 504 S.W. 2d 348 that when the sentence imposed plus the time spent in jail awaiting trial did not exceed the maximum penalty, a prisoner is not entitled as a matter of right to credit for the full time spent in jail. As we recognized, however, in Smith v. State, 256 Ark. 425, 508 S.W. 2d 54, constitutional standards prevent the exercise of this discretion when it results in an accused’s being held in jail awaiting trial solely because of his indigency. Of course, it seems clear that appellant was endeavoring to employ a lawyer and first asserted his indigency after his case was passed to enable him to do so. And then, after having waived trial by jury, he withdrew his waiver on the eve of trial, and demanded trial by jury, resulting in the necessity of a resetting and the delay occasioned thereby. It can be plainly seen these delays were not due solely to his indigency, and the allowance of credit on his sentence for whatever time elapsed because of his actions certainly was discretionary with the trial court. It seems possible however, that some of his pretrial incarceration may have been due solely to his indigency.

There is nothing in the record to indicate that Coleman ever sought credit for his jail time in the trial court. Postcon-viction relief is not available to an accused who could have asserted the ground of his attempted collateral attack in the trial court before sentence was pronounced, but did not. Johnson v. State, 253 Ark. 1, 484 S.W. 2d 92; Murphy v. State, 255 Ark. 398, 500 S.W. 2d 394; Clark v. State, 255 Ark. 13, 498 S.W. 2d 657; Cooper v. State, 249 Ark. 812, 461 S.W. 2d 933, Ballew v. State, 249 Ark. 480, 459 S.W. 2d 577; Cox v. State, 243 Ark. 60, 418 S.W. 2d 799.

Our statutes cover sentencing procedures very thoroughly. See Ark. Stat. Ann. §§ 43-2301 - 2305 (Repl. 1964, Supp. 1973). Of course, there is a presumption of regularity attendant upon every judgment of a court of competent jurisdiction. Norrell v. Coulter, 218 Ark. 870, 239 S.W. 2d 280; Cutsinger v. Strang, 203 Ark. 699, 158 S.W. 2d 669; Stumpff v. Louann Provision Co., 173 Ark. 192, 292 S.W. 106; Hooper v. Wist, 138 Ark. 289, 211 S.W. 143. This strong presumption of validity applies to criminal convictions and sentences, which entitles them to every reasonable intendment in their favor. State v. Plum, 14 Utah 2d 124, 378 P. 2d 671 (1963); State v. Superior Court, 82 Ariz. 237, 311 P. 2d 835 (1957); State v. Cowan, 25 Wash. 2d 341, 170 P. 2d 653 (1946); Paul v. State, 177 S. 2d 537 (Fla. Ct. App. 1965); People v. Tannehill, 193 C.A. 2d 701, 14 Cal. Rptr. 615 (1961); People v. Crispell, 60 N.Y.S. 2d 85, 185 Misc. 800 (1945. See also, Smith & Parker v. State, 194 Ark. 1041, 110 S.W. 2d 24; 24 CJS 656, Criminal Law, § 1605 (7). In the absence of any showing to the contrary, it will be presumed that a sentence is pronounced and that the circuit court did its duty according to the statutes unless the failure to do so appears upon the face of the record. Brickey v. State, 148 Ark. 595, 231 S.W. 549; Brown v. State, 13 Ark. 96. See also, Morrison v. State, 159 Ark. 323, 251 S.W. 873.

After a jury verdict has been returned, §§ 43-2301, 2303 require that the court must ask the defendant if he has any legal cause why the judgment shall not be pronounced according to the verdict. The privilege is commonly known as the right of allocution. Even when the record is silent, it is to be assumed that such a statute was followed by the trial court, in the absence of evidence showing that it was not. Nahas v. State, 199 Ind. 117, 155 N.E. 259 (1927); State v. Hunter, 82 S.C. 153, 63 S.E. 685 (1909). See also, 1 Freeman on Judgments (5th ed.) 830. On collateral attack, the burden of showing non-compliance with such a statute is upon the accused. People v. Sheehan, 4 A.D. 2d 143, 163 N.Y.S. 2d 313 (1957); 24 CJS 656, Criminal Law § 1605 (7). See also, State v. Terry, 98 Kan. 796, 161 P. 905 (1916). In this case, it does not appear from the face of the record, and there is certainly no evidence to show, that the court did not afford to appellant the opportunity to ask for credit for his jail time prior to sentencing or that any objection was ever offered to the pronouncement of the sentence without crediting the pretrial jail time against the term imposed by the jury.

Since the appellant has failed to make the required showing, the judgment is affirmed.


author: Frank Holt, Justice. George Rose Smith, Justice,

text:
    Curtis HAYNIE v. STATE of Arkansas
    CR 74-130
    518 S.W. 2d 492
    Opinion delivered January 27, 1975

      Forest A. Newcomb, attorney for inmates, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Michael S. Gorman, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellant guilty of robbery and also that the robbery was committed with the use of a firearm. On appeal, appellant only challenges the validity of the 15 year sentence which was imposed by the court for the use of a firearm in the commission of the robbery. Appellant first asserts, through present court appointed counsel, there is no substantial evidence to support the jury’s finding that a firearm was used in the commission of the felony.

On appellate review, in determining the sufficiency of the evidence, it is well established that we ascertain that evidence which is most favorable to the appellee and affirm if any substantial evidence exists. Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974). In the case at bar, the 90 year old robbery victim testified that appellant and one of his two companions forcibly took his billfold and a small gun from his back pocket. He identified appellant, the only one of the trio on trial, as holding the pistol on him. The victim further testified that he was hit in the head with the pistol or something that was “iron.” Certainly, this evidence alone amply supports the jury’s finding that appellant employed a firearm as a means of committing the robbery.

Appellant next contends that the trial court erred in imposing a sentence for the use of a firearm during the commission of a felony instead of allowing the jury to set the sentence. The jury returned a verdict of guilty of robbery and fixed appellant’s punishment at 21 years imprisonment. At the same time, in response to an interrogatory, the jury affirmatively found that the robbery was committed with the use of a firearm. Thereupon, the court assessed an additional 15 year sentence which is authorized by Ark. Stat. Ann. § 43-2336 (Supp. 1973). The sentence was made consecutive which is required by § 43-2337. Appellant correctly argues that any punishment for violation of this statute should be set by the jury and not by the court and is contrary to our decisions. Johnson v. State 249 Ark. 208, 458 S.W.2d 409 (1970); Redding v. State, 254 Ark. 317, 493 S.W. 2d 116 (1973); and Cotton v. State, 256 Ark. 527, 508 S.W. 2d 738 (1974). However, we find no merit in this contention since no objection was made to the court’s action. Consequently, the issue cannot now be raised for the first time on appeal. Ark. Stat. Ann. § 43-2725.1 (Supp. 1973); Ford v. State, 253 Ark. 5, 484 S.W. 2d 90 (1972); Robinson v. State, 256 Ark. 675, 509 S.W.2d 808 (1974); and Williams v. State, supra.

Appellant next contends that the information did not properly charge him with the use of a firearm in the commission of a felony in violation of § 43-2336, supra. Therefore, the court erred in submitting that issue to the jury. The robbery information, in pertinent part, reads:

The said defendant on the 12th day of January, 1974, in Jefferson County, Arkansas, did then and there wilfully, unlawfully, feloniously, violently and by force and in--timidation, armed with a pistol, take approximately $125.00 in money, the property of David Montague.(Emphasis ours.)

In Johnson v. State, supra, we found two procedural defects, one of these being that “the use of a firearm was not alleged in the information.” In Redding v. State, supra, the opinion recites that the defendant was charged with the “crime of robbery with the use of a firearm.” There we said that the procedural defect of not alleging in that information the use of a firearm did not exist. In the case at bar, even though the use of a firearm was not alleged as a separate count or paragraph, a casual reading of the information reflects that it unambiguously asserts and gives notice to appellant that the robbery was committed by the use of a firearm. By Initiated Act #3 of 1936, Ark. Stat. Ann. § 43-1006, § 43-1008 (Repl. 1964), which relaxed the common law technical pleading requirements, it is only necessary to name the offense and the defendant in charging an offense and it is unnecessary to state the acts constituting the offense “unless the offense cannot be charged without doing so.” Henderson v. State, 255 Ark. 870, 503 S.W.2d 889 (1974); and Estes v. State, 246 Ark. 1145, 442 S.W.2d 221 (1969). See also Thompson v. State, 205 Ark. 1040, 172 S.W.2d 234 (1943). Here the information was certain as to the name of the court, the county in which the alleged offense was committed, the defendant’s name and the name of the offense: i.e., robbery. It was unnecessary to allege the acts constituting the offense of robbery. However, the information stated with certainty that the robbery was committed with the use of a firearm. We hold the information sufficient. Furthermore, the record here reveals no objection to the information or the manner of the submission of the issue, the use of a firearm, to the jury. As indicated previously, the issue cannot be raised for the first time on appeal.

Moreover, if appellant’s counsel construed the words “armed with a pistol” in the information as being descriptive rather than constituting a possible enhancement of sentence, he certainly was apprised sufficiently when the court submitted the interrogatory to the jury as to whether the alleged offense was committed by the use of a firearm. Although we hold the information sufficient, the better practice would be that the allegation of the use of a firearm be worded with greater specificity to obviate the argument in a case such as the one at bar.

Appellant finally asserts for reversal he was denied effective assistance of counsel because appointed counsel failed to object to the procedure used in charging (the information) and imposing the sentence for the use of a firearm in the commission of a felony. As previously discussed, we are of the view the information sufficiently informed the appellant of the charge of using a firearm, which by statute results in an enhancement of a sentence upon a robbery conviction. § 43-2336, supra. As to the court’s imposition of the additional sentence following the jury’s finding, in answer to an interrogatory, that a firearm was used by the appellant, he correctly asserts, as previously discussed, that this did not comport with the procedure prescribed in Redding v. State, supra, and Cotton v. State, supra. However, as appellant acknowledges, it is necessary to object to the court’s action and when no objection is made, as here, the issue cannot be raised for the first time on appeal. We recognize that our federal constitution mandates that the defendant have the benefit of effective assistance of counsel. Franklin and Reid v. State, 251 Ark. 223, 471 S.W.2d 760 (1971). However, we have held that the defendant shoulders the burden of demonstrating that his counsel’s alleged incompetence constituted prejudicial error and, further, the mere showing of “errors, omissions or mistakes, improvident strategy, or bad tactics” is not alone sufficient. Counsel is accorded a broad latitude in exercising his judgment for a client’s defense. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973); Clark v. State, 255 Ark. 13, 498 S.W.2d 657 (1973).

In Leasure v. State, supra, we said:

[W]e will presume, in the absence of a contrary showing, that: a duly licensed, appointed attorney is competent; a charge of inadequate representation can prevail only if the acts or omissions of an accused’s attorney result in making the proceedings a farce and a mockery of justice, shocking the conscience of the court, or the representation is so patently lacking in competence or adequacy that it becomes the duty of the court to be aware of and correct it.

See also Credit v. State, 247 Ark. 424, 445 S.W.2d 718 (1969); and Poole v. United States, 438 F.2d 325 (8th Cir. 1971); and Slawek v. United States, 413 F.2d 957 (8th Cir. 1969). The strategy and tactics used during a trial involve the elements of trial counsel’s discretion and judgment, which very well might be such that skilled and experienced counsel would honestly disagree. Johnson v. State, supra.

In the case at bar, we cannot say that the appellant, through his counsel, could have been unaware of the possible enhancement of his sentence by the use of a firearm which was alleged in the information. Neither can we say confidently that the failure of appellant’s counsel to object to the additional punishment for the use of the firearm demonstrated a farce and a mockery of justice. It could very well be, inasmuch as the jury had imposed the maximum sentence for robbery, that the strategy and judgment of appellant’s counsel was dictated by the belief the trial court would, most likely, be more lenient in the imposition of a sentence for the use of a firearm than would the jury. Certainly, it is not for us to say this was improvident strategy.

Appellant urges us to abandon our standard or test of competence of counsel and adopt the “reasonably competent” attorney standard which a few other jurisdictions, the cases from which are cited, follow. This we decline to do. If we should dc so, we think it would result in disrupting the established function of a trial judge. The lawyer’s part in a trial is adversary advocacy. The part of the judge is impartiality to insure fairness and delineate the law. “It is no part of the judge’s function to evaluate the relative efficacy of trial tactics” which “would destroy the concept of an impartial judge, a concept basic to our system. ” Mitchell v. United States, 104 U.S. App. D.C. 57, 259 F.2d 787 (1957), cert. denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958). There it was recognized the supervision by a judge of trial counsel’s judgment upon tactical problems could very well invade the accused’s constitutional right to the assistance of counsel. To the same effect is Leasure v. State, supra. Suffice it to say, however, that under either standard, in the case at bar, we cannot say that appellant was denied effective assistance of counsel.

Affirmed.

Smith, Brown, and Byrd, JJ., concur.

George Rose Smith, Justice,

concurring. Owing to the absence of proper objections in the trial court I concur in the result, but I do not agree with the majority’s conclusion that the information was sufficient to charge the offense of robbery with a firearm. The majority have not quoted the charging sentence of the information, by which the prosecuting attorney accused “Curtis Haynie of the crime of robbery committed as follows. . .” The word “firearm” was not used at all, which distinguishes this case from Redding v. State, where the defendant was accused of “the crime of robbery with the use of a firearm.”

In the case at bar the information, in giving the details of the crime, did state that the defendant was armed with a pistol. That detail was not an essential part of the information. In fact, in Ridgeway v. State, 251 Ark. 157, 472 S.W. 2d 108 (1971), the information, in charging an assault with intent to kill, stated that the assault had been made with a deadly weapon, namely, a knife. The proof, however, showed that the defendant had committed the assault by shooting the prosecuting witness twice with a pistol. We affirmed the conviction, rejecting the argument that there was a fatal variance between the information and the proof. Hence in the case at bar the prosecution could have obtained a conviction by showing that the robbery was committed with a knife or even with no weapon at all.

If the State intends to subject the accused to the possibility of fifteen years’ additional confinement because a firearm was used, the information ought to be explicit in making that intention clear. That is, the information ought to charge robbery committed with the use of a firearm. Certainly a rule to that effect would impose no burden whatever upon the prosecuting attorney, but it would unmistakably inform the accused of the precise offense being charged. Surely that is the minimum to which he is entitled.


text:
    Billy Nathan NORTHERN, Jr. v. STATE of Arkansas
    CR 74-134
    518 S.W. 2d 482
    Opinion delivered February 3, 1975

      Rubens & Rubens, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Sam /. Bratton Jr., Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, Billy Nathan Northern, Jr., was charged by felony information with the crime of robbery with a firearm. On trial, after the jury had been instructed on the various degrees of the crime, it returned a verdict of guilty of the misdemeanor crime of petit larceny and assessed Northern’s punishment at one year in the county jail. From the judgment entered in accordance with the verdict, appellant brings this appeal. For reversal, four points are asserted, viz-,

“1.
THE COURT ERRED IN ADMITTING APPELLANT’S STATEMENT WHEN THE STATE FAILED TO SATISFACTORILY EXPLAIN THE ABSENCE OF RAYMOND GAIA.
II.
THE COURT ERRED IN ALLOWING THE PROSECUTING ATTORNEY TO QUESTION DEFENDANT ABOUT THE VARIOUS CRIMES FOR WHICH HE WAS CHARGED.
III.
THE COURT ERRED IN NOT ALLOWING DEFENDANT’S ATTORNEY TO VOIR DIRE THE JURY ON THE SECOND DAY OF THE TRIAL AFTER IT WAS LEARNED THAT LOCAL PAPERS HAD PRINTED ARTICLES WHICH WERE READ BY SOME OF THE JURORS WHICH STATED THAT DEFENDANT WAS CHARGED WITH FOUR FELONIES.
IV.
IN THE EVENT THAT THE LOWER COURT’S JUDGMENT IS AFFIRMED, APPELLANT SHOULD BE GIVEN CREDIT FOR THE TIME HE REMAINED IN JAIL AWAITING TRIAL.”

We proceed to.discuss these points in the order listed.

I.

Appellant specifically objected to the introduction of his confession wherein the robbery was admitted, but the objection was overruled. Appellant, a diabetic, contended he was not involved and that he only confessed after he was denied his insulin for a great period of time. According to appellant, after he was arrested by West Memphis police officers, he was taken to the police headquarters in West Memphis and questioned by Officers R. G. Martin and Raymond Gaia. During the in-chambers hearing on the voluntariness of the confession, Northern stated, inter alia, that he was denied the use of a telephone to call a lawyer, missed breakfast because of being fingerprinted, and was thereafter questioned relative to the robbery. He said that he asked Martin to obtain his insulin for him because he was getting sick, and needed something to eat, but the officer replied that he (appellant) had to “go to the lineup first”. He was then taken to Marion to the county jail for the lineup, after which he asked Detective Captain Gaia if he could have his insulin, but was advised that he could not until the investigation was over. Appellant was then taken back to the police station and the interrogation relative to the robbery was resumed. He said that he reached for a telephone to call a lawyer and also to call his father to obtain his insulin, but Gaia “slapped my hand down.” According to his testimony, he was taken back to his cell, was getting very sick, “puking”, and shaking; Gaia called him back and took him to his office; Gaia was the only person present at that time. Northern was again questioned, told that in order to get his insulin, obtain a lower bond, and make it easier on himself, he had best cooperate. He said he vomited in the bathroom, was sick at his stomach, dizzy, and completely exhausted. Appellant stated that he decided the only way he would get out was to write a statement as requested.

Northern said that he wrote on the paper as dictated by Officer Gaia, but that what he wrote was not true.

Donald Glover Sharp, who was being held in the jail at Marion on a charge of possession of marijuana and no driver’s license, testified that he was in the lineup with Northern and heard the latter ask Gaia if he could make a phone call because he needed his “shot” and that Gaia replied, “After the investigation.”

Sergeant Martin testified that appellant was questioned by himself and Captain Gaia at the same time and that, to his knowledge, Gaia never talked to Northern by himself. He stated that Northern did not try to use the phone and was not mistreated in any manner, nor promised any reward or leniency in return for a confession. The officer said that he learned Northern was a diabetic when the latter commenced writing his statement and at that time the prisoner stated, “Excuse me. I am a diabetic, and 1 am nervous.” Martin said that Gaia asked appellant if he wanted to call somebody and received the reply, “No, 1 can wait until 1 get to Marion.” The court held the confession to be voluntary and accordingly admissible. Officer Martin then reiterated this testimony before the jury, reciting that both he and Captain Gaia were present the entire time, and that Northern was never present with just Gaia. Gaia did not testify.

Counsel for appellant contended, and contends here, that in order to establish the voluntariness of the confession, it was essential for the state to either place Gaia on the witness stand, or give a satisfactory reason why he was not testifying. The court asked counsel if he (defense counsel) had subpoenaed Gaia, stating that defense counsel had the same right as the state, and if he wanted the testimony, he could have taken the deposition. Counsel contended that it was up to the state to produce the witness, and not the defendant. Appellant was correct. In Smith v. State, 254 Ark. 538, 494 S.W. 2d 489, we pointed out that under our case law, there is a presumption that an in-custody confession is involuntary and the burden is on the state to show the statement to have been voluntary, i.e., freely and understandably made without hope of reward or fear of punishment. See also Mitchell v. Bishop, Supt., 248 Ark. 427, 452 S.W. 2d 340. In Smith v. State, 256 Ark. 67, 505 S.W. 2d 504 (1974), we stated that whenever an accused offers testimony that his confession was induced by violence, threats, coercion or offers of reward, the burden is on the state to produce all material witnesses who were connected with the controverted confession or give adequate explanation for their absence. Accordingly, in the case before us, under the testimony of Northern, it was necessary that the state offer Gaia as a witness or give an adequate explanation for his not being present. We do not think this was done. Martin testified that Captain Gaia was no longer with the West Memphis Police Department, having resigned two or three months earlier. He said that Gaia was still in town two weeks after he resigned, and that he understood that Gaia was in Crystal Springs, Florida, but did not know exactly where Gaia could be located. The state’s attorney, at the time of defense counsel’s objection, stated that the state could bring witnesses to testify that efforts had been made to locate Gaia if the court deemed it necessary; further, that the state had an affidavit from Gaia’s wife to the effect that she didn’t know where he could be found, and had no means of locating him. From other remarks between counsel at the time, it is apparent that appellant’s counsel had already indicated to the state that Gaia’s testimony would be important.

While counsel for the state said that he could bring witnesses into court to testify to efforts made to locate Gaia, this was not done; nor was the affidavit from the wife filed with the court. In addition, the record reflects that no subpoena was issued for Gaia, although in another criminal case against another defendant, set for the next day, a subpoena had been issued for Gaia. Accordingly, as far as Gaia’s whereabouts arc concerned, the record only reflects that he might be located in Crystal Springs, Florida, and there is nothing in this record (except the statements of the state’s attorneys) to indicate whether the state had made an effort to locate this witness. Of course, the fact that Gaia had been subpoenaed in another case for the very next day but was not subpoenaed in the Northern case indicates that the state never had any intention of using Gaia in the case presently before us.

Under the holdings in the two Smith cases, the Crittenden County Circuit Court committed error, and this error will necessitate a reversal.

II.

The questions asked by the prosecution, to which the appellant objected, did not refer to any charge against Northern; rather, appellant was simply asked if he had robbed certain persons on particular dates. The answer in each instance was in the negative. No error was committed. See Moore v. State, 256 Ark. (April 8, 1974), 507 S.W. 2d 711, and cases cited therein.

III.

This point is not likely to arise on a re-trial and accordingly there is no need for discussion.

IV.

Since appellant’s conviction (s being reversed, this point becomes moot and requires no discussion.

Because of the error set out under Point I, the judgment is reversed and the cause remanded.