author: Steele Hays, Justice.

text:
    Johnny Eugene JOHNSON v. STATE of Arkansas
    CR 81-71
    623 S.W. 2d 831
    Supreme Court of Arkansas
    Opinion delivered November 16, 1981

      Thomas M. Carpenter, of Lessenberry ir Carpenter, and Richard E. Holiman, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant was charged with the crimes of arson and first degree murder following a fire at a Little Rock rooming house resulting in the death of one of the occupants. The jury’s verdict acquitted him of the charge of murder but convicted him of arson, imposing a sentence of 10 years imprisonment with a recommendation of leniency. On appeal he raises a single issue: whether he can be convicted of arson and acquitted of murder where the offenses arise out of the same conduct. We affirm the judgment on the sentence.

Appellant contends that, by inference, Ark. Stat. Ann. § 41-105 (1) (a) (Repl. 1977) prohibits his conviction of the lesser included offense of arson where he has been acquitted of the greater offense of first degree murder. We find no merit to this contention.

Ark. Stat. Ann. § 41-105 (1) (a) (Repl. 1977) provides:

When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the other, as defined in subsection (2);

Subsection (2) provides:

A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged; . . .

The appellant has been convicted of only one offense — arson. Section 41-105 (1) (a) only prohibits two convictions where one offense is included in another and, therefore, his conviction of a single offense, the lesser one, is not in violation of the statute.

Appellant relies on Swaite v. State, 272 Ark. 128, 612 S.W. 2d 307 (1981), for the proposition that when a person is acquitted of the greater offense which necessarily includes a lesser offense as an element, then acquittal is required on the lesser offense. This reliance is misplaced.

In Swaite there were convictions of both the greater and lesser offenses arising from the same conduct and we held that under § 41-105 conviction of the lesser offense must be set aside. Unlike Swaite, the present case involves a single conviction. We disagree with the argument that an acquittal of the murder charge was dispositive of the arson charge. The first degree murder charge required proof that appellant committed arson and in the course of and in furtherance of that crime caused the death of a person “under circumstances manifesting extreme indifference to the value of human life.” In this case arson was one of the elements of proof necessary to find appellant guilty of first degree murder. It may be that the jury found the death did not result from “circumstances manifesting an extreme indifference to the value of human life,” or simply chose not to convict on that charge for reasons not apparent in the record. Whatever may be said of that, we find no inconsistency in the verdicts as appellant contends.

Appellant argues under authority of Turner v. Arkansas, 407 U.S. 366 (1972), the arson conviction violates the constitutional protection against double jeopardy. The cases are distinguishable. In Turner the defendant was charged with murder in the course of a robbery and acquitted. Later he was tried for robbery and convicted. The United States Supreme Court reversed, holding the state is collaterally estopped from relitigadng those issues already resolved in the defendant’s favor at the murder trial since that determination made his conviction on the robbery charge a logical impossibility. In the present case the acquittal of first degree murder and the conviction of arson are in a single prosecution and are neither illogical nor inconsistent. Appellant has cited no case in which the Fifth Amendment protection against double jeopardy has been extended to cases where all the issues are resolved in one trial resulting in one conviction. We cannot perceive how in a single trial an accused could be said to be in jeopardy twice from but a single conviction.

Finally, appellant points out that the trial court disregarded the jury’s recommendation of leniency by requiring the appellant to serve one-third of his sentence before becoming eligible for parole. But jury recommendations are advisory only and are not binding on the trial judge. Lingo v. State, 271 Ark. 776, 610 S.W. 2d 580 (1981); Tucker v. State, 248 Ark. 979, 455 S.W. 2d 888 (1970). We find no abuse of discretion.

Affirmed.


source: Caselaw Access Project

author: Richard B. Adkisson, Chief Justice.

license: Public Domain

text:
    Charles RAGLAND, Commissioner of Revenues, Department of Finance and Administration, State of Arkansas v. K-MART CORPORATION
    81-136
    624 S.W. 2d 430
    Supreme Court of Arkansas
    Opinion delivered November 23, 1981

      James R. Eads, Jr., Joseph V. Svoboda, H. Thomas Clark, Jr., Timothy J. Leathers, Kelly J. Jennings, Wayne R. Zakrzewski, by: Cassandra Wilkins-Slater, for appellant.

      C. Brantley Buck of Rose Law Firm, P.A., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellee, K-Mart, is a retail discount chain operating seven stores in Arkansas. Appellant conducted a use and sales tax audit of K-Mart for the period of April 1,1974, through December 31,1977. This audit resulted in the assessment of a use tax deficiency of $17,280.13 and a sales tax deficiency of $55,475.89. Each sum includes interst and 10% penalty. K-Mart paid the assessed sums under protest and filed suit for refund under the procedure permitted by Ark. Stat. Ann. § 84-4721 (Repl. 1980).

This appeal is from a Pulaski County Chancery Court decree holding: (1) that preprint advertising supplements printed out of state and delivered to Arkansas newspapers for distribution are exempt from the Arkansas Use Tax, Ark. Stat. Ann. § 84-3105 (Repl. 1980) and, (2) that K-Mart is entitled to retain money collected as sales tax from consumers since the amount collected is in excess of the sales tax authorized by Ark. Stat. Ann. § 84-1903 (Repl. 1980). We will consider each issue separately.

I

USE TAX

K-Mart contracted with an out-of-state printer to produce preprint supplements advertising its merchandise and contracted with newspapers within the state to distribute the supplements along with the newspaper on specified days. Arkansas newspapers charge K-Mart a fee based upon the newspapers’ general circulation. The record reflects that, generally, supplements to a particular newspaper carry the logo, name, of all newspapers in which it is scheduled to appear. This is known as a “gang logo.” However, one Arkansas newspaper required, during the taxing period in question, that the supplements bear the date of insertion and its name only.

Appellee argues and the chancellor concluded that preprint advertising supplements are a component part of the newspaper like many other pre-printed sections (e.g. comics) and are, therefore, exempt from the Arkansas sales and use tax. Specifically, Ark. Stat. Ann. § 84-1904 (f) (Repl. 1980) exempts from sales tax “gross receipts or gross proceeds derived from the sale of newspapers” and Ark. Stat. Ann. § 84-3106 (B) (Repl. 1980) specifically exempts from use tax any tangible personal property exempt from sales tax. However, in this case we do not reach the question of whether unassembled component parts of a newspaper are exempt as “newspapers” under § 84-1904 (f) since we decide that the supplements here in question are not a component part of a newspaper and therefore cannot possibly be exempt as “newspapers.”

In deciding what a component part of a newspaper is, we must first define “newspaper.” There is no statutory definition, but the term was defined in Continental Life Ins. Co. v. Mahoney, 185 Ark. 748, 49 S.W. 2d 371 (1932) in the context of statutes requiring legal notices to be published:

[T]he definition of a newspaper, within the meaning of the statute, is to be taken in its popular sense, which is one to which the general public would resort in order to be informed of the news and intelligence of the day, and which is published at stated intervals and carries reports of those happenings of general importance and interest to the ordinary individuals.

“Newspaper” has also been defined as “a paper that is printed and distributed daily, weekly, or at some other regular and usually short interval and that contains news, articles of opinion (as editorials), features, advertising, or other matter regarded as of current interest. ...” Webster, Third New International Dictionary.

In Friedman’s Express v. Mirror Transp. Co., 169 F. 2d 504 (3rd Cir. 1948), the court held that comics were an integral part of the newspaper for the purpose of an Interstate Commerce Commission exemption, and the court in Sears Roebuck & Co. v. State Tax Comm’n, 370 Mass. 127, 345 N.E. 2d 893 (1976) followed this reasoning in holding that preprint advertising supplements were within the definition of “newspaper.” However, we decline to follow the Sears case, relying instead on Caldor, Inc. v. Heffernan, Tax Comm’r, 183 Conn--(42 Conn. L.J. No. 43, p. 6) (1981), in which the court concluded that advertising supplements were not within the sales tax exemption given to newspapers.

We have considered the following factors in determining that preprint advertising supplements are not a component part of a newspaper:

1. Ownership. K-Mart purchased the supplements and ownership continued until the newspaper was delivered. Although the supplements were mailed to the newspaper, control, as an incident of ownership, remained with K-Mart until the distribution process of the newspaper was beyond recall. The newspaper was merely paid a fee for distribution of the supplements.

2. Preparation. These supplements were prepared by an entity totally independent of the newspaper and are not necessarily printed on the same type of paper as other parts of the newspaper.

3. Regular feature. Advertising preprint supplements are not a regular feature of any newspaper. A supplement defines itself as such, as opposed to purporting to be a component part of the newspaper. Furthermore, advertising supplements do not necessarily appear in each edition of a particular newspaper. Their appearance in the paper and the extent of its distribution is dictated by K-Mart’s advertising policy.

4. Privity of contract. The newspaper pays for the insertion of comic and similar supplements whereas K-Mart pays the newspaper to distribute the preprint advertising supplements.

5. “Supplement to” followed by “gang logo.” Unlike other supplements of a newspaper that bear only the logo of the specific newspaper of which they are a part, advertising preprint supplements bear the words “supplement to” followed by a “gang logo.”

6. Distribution. The advertising supplements are sometimes distributed separate and apart from the newspaper. In this case they were offered as free handouts at K-Mart stores, and it is stipulated that these handouts were subject to use tax.

Any tax exemption provision must be strictly construed against the exemption, and to doubt is to deny the exemption; the taxpayer has the burden of clearly establishing the exemption beyond a reasonable doubt. S.H. & J. Drilling Corp. v. Qualls, 268 Ark. 71, 593 S.W. 2d 178 (1980); Western Paper Co. v. Qualls, 272 Ark. 466, 615 S.W. 2d 369 (1981). In this case K-Mart has not met this burden. Therefore, we conclude that advertising preprint supplements are not a component part of the newspapers in which they appear and are not exempt from use tax as newspapers under § 84-1904 (f). The judgment of the trial court on this issue is reversed.

II

SALES TAX

K-Mart collected as sales tax from consumers the amount in question which was in excess of the tax authorized by Ark. Stat. Ann. § 84-1903 (Repl. 1980). This statute levies a 3% sales tax on the gross proceeds derived from all sales to any person.

Appellant relies on Cook v. Sears Roebuck & Co., 212 Ark. 308, 206 S.W. 2d 20 (1947). Sears collected sales tax in the amount provided by statute but refused to remit to the State any of the taxes so collected. This Court held that to allow Sears to retain money collected as a sales tax would be to completely disregard the doctrine against unjust enrichment. However, that case did not reach the issue of whether the system of collecting the tax was authorized by statute which is the issue we address in this case.

Ark. Stat. Ann. § 84-1908 (Repl. 1980) places on the seller the responsibility for collecting this tax from the purchaser and authorizes appellant to set up by regulation a bracket system of collecting the tax due. Pursuant to this statute appellant promulgated Art. 9 of the Gross Receipts Tax Regulations:

The tax in all instances is to be collected by the retailer, except as to the sale of new and used motor vehicles, etc. (See automobiles).
The amount of tax to be collected on each sale is 3% of the gross proceeds thereof, but for the convenience of the seller in collecting the tax, the following brackets are to be followed:
1 cent to 14 cents inclusive — no tax
15 cents to 44 cents inclusive — 1 cent
45 cents to 74 cents inclusive — 2 cents
75 cents to $1.14 inclusive — 3 cents
Scales accordingly.
Use of the above bracket system does not relieve the seller from the duty and' liability to remit an amount equal to 3% of the gross receipts derived from all sales during the taxable period.

Collection of this tax in accordance with the above regulation resulted in the overcollection of the sum at issue. The trial court found that the consumers who paid the tax cannot be identified and a refund of the overcollection is not possible.

Ark. Stat. Ann. § 84-1906 (Repl. 1980) provides for the computation and remittitur of the tax to the State:

The tax shall be computed by multiplying the tax rate times the amount of the total combined gross receipts or gross proceeds derived from all taxable sales during the preceding month, without regard to the amount that may be allocated to gross receipts tax on the taxpayer’s books of account. Such taxpayer shall compute and remit to the Commissioner the required tax due for the preceding calendar month, the remittance or remittances of the tax to accompany the returns herein required. . . .

Ark. Stat. Ann. § 84-1907 (Repl. 1980) requires the keeping of adequate records to substantiate and prove the accuracy of such returns:

It shall be the duty of every taxpayer required to make a return and pay any tax under this act [§§ 84-1901 — 84-1904, 84-1906 — 84-1919] to keep and preserve suitable records of the gross receipts or gross proceeds of sales taxable and nontaxable under this act, including such books of account and such analyses of sales as may be necessary to determine the amount of the tax due hereunder and all invoices, credit memoranda, refund slips, and other records of goods, wares, merchandise, and other subjects of taxation under this act as will substantiate and prove the accuracy of such returns. . . .

The tax levied is 3% of the gross proceeds and it is clear from reading these statutes that the tax payable is to be computed by multiplying the tax levied times the combined gross proceeds derived from all taxable sales during the preceding month. This amount is required to be remitted to the State monthly and records are to be duly kept to prove the accuracy of such remittitur. Appellee has followed the statutes explicitly in computing and remitting the tax on its sales. The judgment of the trial court on this issue is affirmed.


author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justice, Per Curiam.

text:
    Daniel Odell ENGLISH v. STATE of Arkansas
    CR 81-67
    626 S.W. 2d 191
    Supreme Court of Arkansas
    Opinion delivered November 23, 1981
    [Supplemental Opinion on Denial of Rehearing January 11, 1982.]

      John W. Settle, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

After a jury trial, appellant was convicted of rape and burglary and sentenced as a habitual offender to life imprisonment and fined $15,000 for rape and to 40 years for burglary. The sentences were set to run consecutively. On appeal we reverse and remand for a new trial.

The evidence showed that on November 9, 1980, at approximately 7:30 p.m. appellant entered the victim’s apartment through an open window and raped her. Five days later appellant returned to the victim’s home “around midnight” and knocked on her door; she recognized him as her previous attacker and called the police. A few minutes later appellant was arrested in a parking area one block from the victim’s home. Appellant was placed in the back seat of a police vehicle and was carried directly to the victim’s residence where she made a positive identification.

Ark. Stat. Ann. § 41-1001 (Supp. 1981) provides that a person who has been “convicted” or “found guilty” of previous offenses may be sentenced to an extended period of imprisonment (as a habitual offender). Appellant argues, and we agree, that the trial court erred in allowing the State to introduce into evidence as a previous conviction proof of a “court probation” proceeding in which there was no conviction or finding of guilt (Sebastian County Circuit No. CR-1978).

In Cantrell v. State, 258 Ark. 833, 529 S.W. 2d 136 (1975), we defined court probation:

Under the ‘court probation’ procedure, the trial court retains jurisdiction over one admittedly guilty of a felony, but gives him a chance to rehabilitate himself, by a formal refusal to accept his guilty plea. By retaining jurisdiction, however, the trial court can revoke the ‘probation’ by accepting the plea at a later time, if the person commits another offense.

Such a proceeding does not constitute a "conviction” or “finding of guilt” under the above statute until the plea is finally accepted and, therefore, is inadmissible for sentence enhancement purposes.

The Arkansas Criminal Code which became effective January 1, 1976, Act 280 of 1975, codified this common law “court probation” procedure in Art. 3, Disposition of Offenders, (A.S.A. §§ 41-801 — 1351 [Repl. & Supp. 1981]) by providing in Ark. Stat. Ann. § 41-803 (5) (Supp. 1981) that “If a defendant pleads guilty or is found guilty of an offense . . . the court may suspend imposition of sentence or place the defendant on probation .... ” Placing the defendant on probation without imposing a sentence was the essential element in “court probation” as it is under the Arkansas Criminal Code. All other statutory sentencing procedures require that a judgment of conviction be entered, and the sentence begins to run from the time of the sentence and it is immaterial whether the trial court suspends (a) the imposition of the sentence or (b) the execution of the sentence. See Canard v. State, 225 Ark. 559, 283 S.W. 2d 685 (1955); Culpepper v. State, 268 Ark. 263,595 S.W. 2d 220 (1980). The Criminal Code further provides in Art. 3, § 803 (1) that “No defendant convicted of an offense shall be sentenced otherwise than in accordance with this article.” It is, therefore, clear that apart from statute this common law “court probation” procedure is no longer available as a sentencing alternative. See McGee v. State, 271 Ark. 611, 609 S.W. 2d 73 (1980).

Other objections raised by appellant are not considered since they will not likely be raised in the same context upon retrial.

Reversed and remanded.

Purtle and Dudley, JJ., concur.

John I. Purtle, Justice,

concurring. I concur in the results reached by the majority, but I am not sure that we are in agreement on the grounds for the action taken. So far as I am concerned, the term “court probation” is merely a phrase used when a trial court places a defendant on probation. I do not know that there has ever been a legal definition for the words “court probation.” The term has been used most frequently in one particular area of the state, but it has been used all across the state at one time or another. It is my opinion that there is “court probation” whether the probation is prior to acceptance of a plea or finding of guilt or whether imposed after the acceptance of a plea or finding of guilt. No significance should be given to the term “court probation.” The court is the only source of a sentence of probation and in this sense, of course, it is court probation. I suppose it could be contrasted with that type of probation used by the Board of Pardons and Paroles, in which case it would be proper to refer to the probation as “parole probation.”

The majority opinion correctly states that Ark. Stat. Ann. § 41-1001 (Supp. 1981) provides that a person who has been convicted or found guilty of a previous felony may be convicted as an habitual offender. The question then to be determined by this court is what is a conviction or finding of guilt. Ark. Stat. Ann. § 41-803 (1) (Supp. 1981) states:

No defendant convicted of an offense shall be sentenced otherwise than in accordance with this Article.

This language is absolutely no help in determining the meaning of a conviction or finding of guilt. It simply states that a defendant must be convicted before he is sentenced. Certainly, if there is a docket entry or a court order in which the defendant is convicted or found guilty, there is no question to be decided. However, when the docket entry or the order specifically states that the guilty plea has not been accepted or the trial court has suspended making a finding of guilt or innocence, there is equally no question concerning conviction or finding of guilt. We must then look elsewhere to determine what is meant by conviction or finding of guilt.

The majority cite the case of Canard v. State, 225 Ark. 559, 283 S.W. 2d 685 (1955), as standing for the proposition that it is immaterial if the trial court suspends imposition of the sentence or execution of the sentence. This interpretation is unclear. Canard pled guilty and the court immediately signed an order sentencing him to serve one year in the state penitentiary. However, the court suspended the sentence on certain conditions. In fact, the Canard decision stated that it was immaterial whether the court postpones the pronouncement of sentence or the execution of the sentence already pronounced. It is obvious that either way the statement was based upon an existing guilty plea or a finding of guilt. There was no suspension of a finding of guilt because the court entered such finding on the date of the guilty plea. The majority also cites Culpepper v. State, 268 Ark. 263, 595 S.W. 2d 220 (1980). Culpepper also entered a plea of guilty and the court immediately sentenced him to five years suspended with three years on probation based upon certain conditions. Therefore, both Canard and Culpepper dealt with cases where a guilty plea was entered, accepted and sentence pronounced. These cases do not deal with the situation where the court has not accepted a plea and pronounced sentence such as offered in the case now before us. In Culpepper we stated:

There is a substantial difference between advising a defendant that he is sentenced to five years suspended subject to certain behavioral requirements and in advising a defendant that the imposition of sentence will be suspended or postponed for five years conditioned on the same behavioral requirements. . . .

The primary purpose of my concurrence is to state that I feel the courts still have the power to postpone or suspend the acceptance of a guilty plea or finding of guilt. The court is in a far superior position to determine the possibility of rehabilitation in a particular case than is an appellate court. It seems to me that the trial court has the most powerful tool for rehabilitating a person who has committed a crime when the court is able to suspend the final action on a case for a definite period of time. In my opinion, Ark. Stat. Ann. § 41-1201 (3) (b) (Repl. 1977) permits the court to suspend imposition of sentence or place him on probation without entering a judgment of guilt or conviction; it states:

(3) When the court suspends the imposition of sentence on a defendant or places him on probation, the court shall enter a judgment of conviction only if;
(b) it sentences the defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment.

In McGee v. State, 271 Ark. 611, 609 S.W. 2d 73 (1980), we stated:

... we recently recognized that specifying a period of probation in no way limited a trial court on revocation when no sentence had been imposed or pronounced. Nothing that we said in Culpepper v. State, supra, was meant to suggest otherwise. Under the 1976 Criminal Code, a sentence is not imposed until the court pronounces a fixed term of imprisonment as opposed to simply specifying a definite period of time of probation. See Ark. Stat. Ann. § 41-801 (2) and §41-1208 (6) (Repl. 1977). . . .

Supplemental Opinion on Denial of Rehearing delivered January 11, 1982

I guess the best way to sum up my position on this matter is in the words of Chief Justice Fogleman’s concurring opinion in McGee v. State, supra, wherein he stated:

... no legislation has in any way impaired or abolished court probation in which the circuit court’s probation postpones acceptance of a guilty plea, retaining jurisdiction, but giving the accused an opportunity to rehabilitate himself. . . .

Therefore, in my judgment, we should clearly state that a trial court has the authority to hold an accused in the status of suspension or probation for a fixed period of time without making a docket entry of or entering an order of conviction or making a finding of guilt.

Per Curiam.

Two issues were raised which may arise again on a retrial.

The prior convictions were proved by the circuit clerk of Sebastian County testifying, basing her testimony on docket sheet entries from her office. The docket sheets themselves were also admitted. According to our decision in Reeves v. State, 263 Ark. 277, 564 S.W. 2d 503 (1978) that was proper evidence to prove prior convictions.

The appellant argues the evidence of identifcation was improperly admitted. We have examined the record in the light of Lindsey v. State, 264 Ark. 430, 572 S.W. 2d 145 (1978) and conclude that we cannot say the trial court was clearly wrong in permitting the evidence to be admitted based on the record made.


author: George Rose Smith, Justice.

text:
    Booker T. WESTBROOK v. STATE of Arkansas
    CR 81-68
    624 S.W. 2d 433
    Supreme Court of Arkansas
    Opinion delivered November 23, 1981

      Julius D. Kearney, for appellant.

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

On August 29, 1977, the appellant shot and killed the Dermott Chief of Police in the course of a struggle between the two men for possession of the officer’s pistol. The appellant was charged with capital murder. After the first trial a judgment imposing the death penalty was reversed for errors prejudicial to the defendant. Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979). The venue was changed to Ashley county. This appeal comes from a second trial at which the appellant was again found guilty of capital murder and was sentenced to life imprisonment without parole. We find no prejudicial error in the four points that are argued or elsewhere in the abstracts and briefs submitted by counsel.

First, it is argued that the court should have granted the defendant’s motion to quash the jury panel for racial discrimination in its selection. There was actually no positive proof of the percentage of black citizens in the county, nor of an actual underrepresentation of blacks on the jury panel, nor of any discrimination by the jury commissioners in the selection of the jury panel. It is now argued that various sections of the statutes, especially Ark. Stat. Ann. § 39-102 (Supp. 1981), afford jury commissioners a possible means of discriminating against blacks in the selection process. Even so, the statutes are not unconstitutional on their facé, because they can be put into effect without any racial discrimination whatever. Waters & Adams v. State, 271 Ark. 33, 607 S.W. 2d 336 (1980). Here the essential fact of actual, purposeful discrimination has not been shown.

Second, it is again urged that the defendant was entitled to the appointment of an independent psychiatrist at public expense. That contention was rejected on the first appeal and is barred by the law of the case. Moreover, the defendant was twice sent to the State Hospital for examination, with findings that he was without psychosis, and expert witnesses gave testimony favorable to him on the issue of his mental capacity.

Third, on a related point it is argued that the trial judge, after a hearing in chambers, should have acquitted the defendant on the ground of mental disease or defect. Ark. Stat. Ann. § 41-609 (Repl. 1977). The testimony was in decided conflict with respect to the defendant’s mental capacity. The trial judge properly refused to take the issue from the jury, to whom it was later submitted at the trial. As the Commentary to Section 41-609 of the Criminal Code points out, the statute permits the trial judge to acquit the defendant “in cases of extreme mental disease or defect where the lack of responsibility on the part of the defendant is clear,” it being contemplated that the defendant will then be hospitalized. That was not the situation in this case. Quite the contrary, the trial judge would have been wrong if he had acquitted the appellant upon the conflicting proof presented at the hearing.

Fourth, it is argued that the trial judge, in addition to giving AMCI 4009 on the issue of mental disease or defect, should also have given an instruction under Section 41-602 with regard to the defendant’s possession of the kind of culpable mental state required for the commission of the offense charged. That same contention was rejected in Robinson v. State, 269 Ark. 90, 598 S.W. 2d 421 (1980). Also, the defense failed to offer an instruction that would have submitted the issue to the jury. Hence there is now no basis for complaint. Hays v. State, 219 Ark. 301, 241 S.W. 2d 266 (1951).

Affirmed.


author: Darrell Hickman, Justice.

text:
    James W. ROBINSON v. STATE of Arkansas
    CR 81-52
    624 S.W. 2d 312
    Supreme Court of Arkansas
    Opinion delivered November 23, 1981

      John L. Kearney of Kearney Law Offices, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

This is the second appeal of this case. We reversed Robinson’s conviction and ordered a new trial in Robinson v. State, 269 Ark. 90, 598 S.W. 2d 421 (1980) because of erroneous jury instructions. Robinson shot and killed his girl friend and her mother in a shopping center in Pine Bluff, Arkansas. He was convicted a second time and sentenced to life imprisonment without parole. The facts of the case are contained in our first opinion.

On this appeal there is only one significant issue and that relates to the trial court’s refusal to rule that a psychological examiner was an expert witness on insanity. When the judge so ruled, counsel for Robinson requested a continuance which was denied, and later requested a mistrial, which was also denied.

All three rulings were within the discretion of the trial court and we cannot find a manifest abuse of that discretion. The judgment is affirmed.

Robinson’s defense was not guilty by reason of insanity. Several expert witnesses testified for the State. Robinson called as one of his witnesses a psychologist who had given Robinson a battery of psychological tests. After the witness answered that he held a master’s degree in clinical psychology and had practiced for thirteen years it was requested that the witness be ruled an expert. The State sought to question the witness further and it was elicited that the witness was merely a psychological examiner, not a clinical psychologist or consulting psychologist. The witness conceded that his findings had to be supervised by a psychiatrist or consulting psychologist and that in this case such a supervisor was not present when he tested or consulted with Robinson. He could offer no report approved by such a supervisor. The defense argued that the witness had testified in several trials and the question of his expertise had never been raised. But the judge correctly pointed out that that argument was simply makeweight. There was no other evidence of the extent of the experience or ability of the witness.

An extensive hearing, both in chambers and in front of the jury, was held. It consisted mostly of argument. Finally the judge ruled that the witness could not offer an opinion on the mental state of Robinson, but would be limited to testifying as a psychological examiner and “layman.”

Robinson has two main objections to the judge’s ruling. First, he argues that the witness was qualified as an expert and, second, that the defense was surprised because this same witness had been ruled an expert at the first trial and, therefore, the defense needed time to produce another witness.

It is always discretionary with the trial court whether a person is qualified as an expert in a particular field. That discretionary decision will only be overturned if we find it manifestly wrong. Parker v. State, 268 Ark. 441, 597 S.W. 2d 586 (1980); Smith v. State, 258 Ark. 601, 528 S.W. 2d 389 (1975), cert. denied 425 U.S. 912 (1976). Based on the information given to the judge and the arguments of counsel, the judge concluded that the psychologist was not qualified to offer an opinion as to insanity or mental illness. He sustained objections to questions that touched on that area. He ordered stricken such answers as the defendant “was suffering from a mental illness,” and that one of the tests “suggested that [Robinson] had a strong drive to escape present reality;” another test suggested that [Robinson] was extremely emotionally unstable. The psychologist was allowed to describe the tests Robinson was given and the results of those tests, but his findings were essentially excluded. It is argued that Ark. Stat. Ann. § 28-1001, Rule 702 (Repl. 1979) controls the situation and that the court had to permit the testimony. That rule reads:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, or training, or education, may testify thereto in the form of an opinion or otherwise.

Every opinion offered must have a basis, whether expert or lay; that is, a witness must be qualified by education or circumstance to have an opinion that will carry some weight and be of assistance to the fact finder. Whether one is qualified is a question of law to be decided by the trial judge. Gibson v. Heiman, 261 Ark. 236, 547 S.W. 2d 111 (1977).

Neither party argued to the court below, nor to us on appeal, the import of Ark. Stat. Ann. §§ 72-1501 — 72-1518 (Repl. 1979) which define the role, qualifications and responsibilities of various types of psychologists. We can find nothing in these statutes which clearly says that a psychological examiner is qualified to offer his own opinion on mental illness or insanity unless he is supervised.

The fact that the witness was allowed to testify at the first trial without objection is irrelevant to whether he was actually qualified as an expert. This was a separate trial. Both parties were starting anew bound only by any limitations of law laid down in the first case. There is no indication that the issue was raised in the first trial. See Robinson v. State, supra. The issue is whether the court ruled properly during this trial.

Counsel for Robinson claimed surprise by the turn of events and made a motion for a continuance which was denied. Again, the question is whether the trial court abused its discretion. Parker v. State, supra. The preparation and presentation of a case for trial promises few gratuities. The witness never appeared to have been qualified to testify as the defense suggests, and there were no good reasons shown why the defense should not have known that the witness held limited credentials in the field of mental illness. The court did permit the witness to testify within the area of his expertise and we find no manifest abuse of discretion that resulted in prejudice.

It is argued that photographs admitted in both of Robinson’s trials inflamed and prejudiced the jury. We held in Robinson v. State, supra, that the photographs were admissible and that ruling became the law of the case. Gibson v. Gibson, 266 Ark. 622, 589 S.W. 2d 1 (1979); Wilson v. Rodgers, 256 Ark. 276, 507 S.W. 2d 508 (1974).

We have examined the record as we are required to do in a case of imprisonment for life without parole, and finding no prejudicial error, affirm the conviction.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Robert JACKSON v. STATE of Arkansas
    CR 81-25
    624 S.W. 2d 437
    Supreme Court of Arkansas
    Opinion delivered November 23, 1981

      James W. Haddock of Holloway ir Haddock, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

In 1980 appellant Robert Jackson was convicted of first degree murder. He appealed contending that evidence was wrongfully seized during a warrantless search. While that appeal was pending, the Supreme Court of the United States handed down Payton v. New York, 445 U.S. 573 (1980). It held that a warrantless and nonconsensual entry into a suspect’s home to make a routine arrest results in an invalid arrest unless exigent circumstances exist. The exclusionary rule then prohibits the introduction of evidence seized during an invalid arrest. State v. Block, 270 Ark. 671, 606 S.W. 2d 362 (1980). After Payton, supra, came down we remanded appellant’s case for an evidentiary hearing to see if exigent circumstances existed which would justify appellant’s warrantless arrest in his home and that, in turn, would determine the validity of the seizure of evidence. Jackson v. State, 271 Ark. 71, 607 S.W. 2d 371 (1980).

Upon remand, the trial court allowed two police officers to testify about statements which others gave to them about appellant. These statements, coupled with their observations, led them to believe exigent circumstances existed. Appellant contends that this type of statement is hearsay and should not have been admitted. We affirm the ruling of the trial court.

In a hearing to determine whether exigent circumstances existed a police officer may testify about the information he relied upon to justify a warrantless arrest and seizure of evidence. This testimony is admitted to show the bases of the officers’ actions, not to prove its truthfulness. Statements may be admissible to show they were made as opposed to showing the truth of the matter asserted. This type of evidence is not hearsay. Rule 801 (c), Arkansas Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), provides:

Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

This rule is consistent with our earlier cases holding that a statement made out of court is not hearsay if offered for the purpose of proving the statement was made. Nowlin v. State, 252 Ark. 870, 481 S.W. 2d 320 (1972); Liberto & Mothershed v. State, 248 Ark. 350, 451 S.W. 2d 464 (1970); City of Springdale v. Weathers, 241 Ark. 772, 410 S.W. 2d 754 (1967); Motors Insurance Corp. v. Lopez, 217 Ark. 203, 229 S.W. 2d 228 (1950).

Moreover, a warrantless arrest is to be evaluated on the basis of the collective information of the police. Woodall v. State, 260 Ark. 786, 543 S.W. 2d 957 (1976). Rule 4.1 (d), A. R. Grim. P., Vol. 4A (Repl. 1977) embodies this principle and is applicable:

A warrantless arrest by an officer not personally possessed of information sufficient to constitute reasonable cause is valid where the arresting officer is instructed to make the arrest by a police agency which collectively possesses knowledge sufficient to constitute reasonable cause.

Affirmed.


text:
    Marty CRAFTON v. STATE of Arkansas
    CR 81-45
    624 S.W. 2d 440
    Supreme Court of Arkansas
    Opinion delivered November 23, 1981

      Andrew Fulkerson, for appellant.

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

Appellant seeks reversal of a judgment sentencing him as a habitual offender to consecutive terms of 25 years for first degree battery and 10 years for possession of a firearm by a felon. The charges arose from a tavern quarrel with Hugh Jones. Witnesses said appellant drew a pistol, which he and Jones struggled over, and Jones sustained a bullet wound in the leg. Appellant argues six points, but we find no reversible error.

Three days before trial the information was amended to charge the appellant as a habitual offender. Citing Ellingburg v. Lockhart, 397 F. Supp. 771 (E. D. Ark. 1975), appellant argues the trial court’s refusal to strike the amended information was a denial of his constitutional right to adequate notice of the charges against him. The cases are distinguishable. In Ellingburg, it was not until the jury had returned a verdict on the original charge that the defendant learned the information had been amended to include a recidivism charge. This issue was treated by this court in Finch v. State, 262 Ark. 313, 556 S.W. 2d 434 (1977). There the amended information was submitted on the day of trial and after the jury was seated. Mr. Justice Fogleman stated at 262 Ark. 316, 317:

Appellant contends that the trial court erred in allowing the state to amend its information after the trial had started in order to permit the imposition of more severe punishment on him. Proper amendments of informations have been permitted under Ark. Stat. Ann. § 43-1024 (Repl. 1964) after the jury has been sworn but before the case has been submitted to it, so long as the amendment does not change the nature or degree of the crime charged, if the accused is not surprised. Washington v. State, 248 Ark. 318, 451 S.W. 2d 449; Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304; Johnson v. State, 197 Ark. 1016, 126 S.W. 2d 289; Ingle v. State, 211 Ark. 39, 198 S.W. 2d 996. See also, Ridgeway v. State, 251 Ark. 157, 472 S.W. 2d 108.
This amendment did not change either the nature or the degree of the crime. Nor does our habitual criminal act. See McIlwain v. State, 226 Ark. 818, 294 S.W. 2d 350; Osborne v. State, 237 Ark. 170, 371 S.W. 2d 518. It simply authorizes a more severe punishment. Higgins v. State, 235 Ark. 153, 357 S.W. 2d 499. It does not create a distinct additional offense or independent crime but simply affords evidence to increase the punishmen t and to furnish a guide for the court or j ury in fixing the final punishment in event of conviction of the offense charged. See Commentary, Ark. Stat. Ann. § 41-1001, Arkansas Criminal Code; Hathorne v. State, 459 S.W. 2d 826 (Tex. Cr. App., 1970), cert. den. 402 U.S. 914, 91 S. Ct. 1398, 28 L. Ed. 2d 657; Morelock v. State, 2 Tenn. Cr. App. 423, 454 S.W. 2d 189; State v. Thompson, 299 S.W. 2d 468 (Mo., 1957); Gamron v. Jones, 148 Neb. 645, 28 N.W. 2d 403 (1947); Ervin v. State, 351 P. 2d 401 (Okla. Crim. App., 1960); Smith v. State, 227 Ind. 672, 87 N.E. 2d 881 (1949); 5 Wharton’s Criminal Law & Procedure (Anderson) 435, § 2218. It is based upon the theory that one who is a persistent offender warrants an increased punishment for the offense of which he is found guilty, for the protection of the community, because he has not been deterred by previous punishment. See 4 Wharton’s Criminal Procedure (12th Ed.) 285, § 631.

No continuance was sought by appellant and nothing prejudicial appears to have been suffered due to the timing of the amended information. We hold that the denial of the motion to strike was not improper.

Appellant argues that the trial court erred in refusing to conduct the j ury voir dire in accordance with Ark. Stat. Ann. § 43-1903. But this issue, being raised for the first time on appeal, is not properly before this court. Appellant contends that the objection was preserved below in his “Motion For Individual Sequestered Voir Dire.” The motion and supporting argument to the trial court were based on the contention that the accused was entitled under the Sixth Amendment to voir dire the prospective jurors separately and in private. However, there was no mention of § 43-1903 either in substance or by name. Appellant was permitted to individually voir dire the prospective jurors but was not allowed to have them individually sequestered. An objection must be sufficiently specific to apprise the trial court as to the particular error complained of in order to preserve the right to appellate review. A. R. Grim. P., Rule 36.21; Ark. Stat. Ann., Vol. 4A (Repl. 1977); Rowland v. State, 262 Ark. 783, 561 S.W. 2d 304 (1978); Pope v. State, 216 Ark. 314, 225 S.W. 2d 8 (1949).

Furthermore, we have no way of determining whether the voir dire proceedings were conducted improperly as the record indicates there was no request that voir dire be reported. Appellant has attempted to remedy the omission by submitting a reconstruction of the voir dire proceedings, based on recollection, pursuant to Rule 6 (d) Ark. Rules of Appellate Proc., Vol. 3A (Repl. 1979). But the rule requires that counsel first submit his own statement of the omitted proceedings to opposing counsel and, if necessary, to the trial court. It is clear the procedures outlined in Rule 6 (d) are to be pursued in the trial court and not in this court on appeal. See Wicks v. State, 270 Ark. 781, 784, 606 S.W. 2d 366 (1980), where we said:

[The appellant] has the burden of supplying a transcript of the proceedings below. Graham v. State, 264 Ark. 489, 572 S.W. 2d 385 (1978). That burden includes responsibility for obtaining a transcript or its reconstruction. Graham v. State, 264 Ark. 804, 575 S.W. 2d 149 (1979). The correct procedure to obtain what used to be called a bystander’s bill of exceptions is specified in detail in Appellate Procedure Rule 6 (d) (1979). The appellant has apparently made no effort to pursue his available remedy and is not entitled to different relief.

Appellant contends jurors Hensley and Yopp should have been excused for cause. For the reasons stated above regarding the omission of the voir dire proceedings we are unable to consider these arguments.

Next, appellant submits that error occurred in the trial court’s refusal to dismiss the charge of possession of a firearm by a felon. He argues first, the statute violates the Eighth Amendment protection against cruel and unusual punishment, applicable to the states via the Fourteenth Amendment, in prohibition of punishment of a “status offense;” second, he contends the statute violates the Fifth and Fourteenth Amendments because of vagueness; and finally, it violates the Fifth Amendment protection against double jeopardy.

Appellant’s reliance on Robinson v. California, 370 U.S. 660, reh. den. 371 U.S. 905 (1962), as authority to invalidate the felon in possession statute as a status offense is unfounded. In Robinson, the United States Supreme Court struck down a California statute making it a crime to be addicted to narcotics. Unlike our felon in possession statute, the California statute required no act to have been committed, but merely punished the status or condition of being a narcotic addict. We find nothing similarly offensive in our statute. It does not punish the status of being a felon, rather, i t punishes the act of carrying a firearm by one who has been convicted of a felony. As to the other parts of the argument, i.e. vagueness and double jeopardy, we can find no objection on these grounds preserved below and consequently, we do not consider them on appeal. Rule 36.21, Rules of Crim. Proc.

As a final point, appellant contends that the overlapping use of prior convictions to enhance the sentences was improper, citing the Kentucky case of Boulder v. Commonwealth, 610 S.W. 2d 615 (1980). But again, appellant asks us to reverse upon a ground not offered initially to the trial court. Appellant cites us to page 144 of the transcript, where he renewed his motion to strike the habitual offender amendment to the information “as changing the degree of the crime charged” because it increased appellant’s exposure from 15 to 40 years on the battery and from 5 to 10 years on the FPF. A general, broadside objection to the instructions was included “for the same reasons.” But it is evident that the point urged on appeal is not the same point argued to the trial court and, hence, runs counter to the rule. Smith v. State, 268 Ark. 282, 595 S.W. 2d 671 (1980); and Pace v. State, 265 Ark. 712, 580 S.W. 2d 689 (1979).

The judgment is affirmed.


author: Per Curiam.

text:
    Ernest L. WALKER v. STATE of Arkansas
    CR 81-73
    624 S.W. 2d 439
    Supreme Court of Arkansas
    November 23, 1981

      George C. Howard, of Howard, Mann ir Slaughter, Chicago, 111., for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

George C. Howard, of Chicago, Illinois, one of the appellant’s counsel, has filed a second motion to be relieved as counsel of record. That motion will not be considered unless and until Howard complies with Rule XIV, Rules Governing Admission to the Bar, Ark. Stat. Ann. Vol. 3A (Repl. 1979), pertaining to practice by comity. See Walker v. State, 274 Ark. 124, 622 S.W. 2d 193 (1981). A formal statement will have to be filed with the clerk of this court, not merely an expression of willingness as indicated in this second motion.

Furthermore, counsel must be prepared to show this court that no prejudice will result to Walker’s case if the motion is granted. Evidently the record of the trial is in counsel’s possession and a dispute exists between Walker and the appellant’s mother over the fee to be paid. That dispute will have to be resolved so that no prejudice results to appellant’s case.


text:
    Kenneth PHILLIPS, CONTRACTORS TIRE AND SUPPLY, INC., and Gary A. JOHNSON v. TIRES, TUBES, WHEELS, INC.
    81-149
    625 S.W. 2d 449
    Supreme Court of Arkansas
    Opinion delivered November 30, 1981

      Gayle D. Zimmerman, for appellants.

      Arnold, Hamilton ¿r Streetman, for appellee.
   Richard B. Adkisson, Chief Justice.

Appellee, Tires, Tubes, Wheels, Inc., brought suit on account and requested appointment of a receiver to preserve the assets of appellants’ business.

After finding that appellants failed to comply with the Uniform Commercial Code — Bulk Transfers, Ark. Stat. Ann. §§ 85-6-101 — 109 (Add. 1961), the Ashley County Chancery Court entered an order appointing a receiver pendente lite as authorized by Ark. Stat. Ann. § 36-112 (Repl. 1962). This is an interlocutory appeal from that order. We affirm.

The first issue we consider is whether the trial court was correct in finding a violation of the UCC Bulk Transfers Act. Section 85-6-102 (Add. 1961) defines Bulk Transfer:

(1) A ‘bulk transfer’ is any transfer in bulk and not in the ordinary course of the transferor’s business of a major part of the materials, supplies, merchandise or other inventory of an enterprise. ...

Ark. Stat. Ann. § 85-6-104 requires that the transferor list all creditors and Ark. Stat. Ann. § 85-6-105 requires ten days notice prior to the date of sale be given to all creditors.

Between August and December, 1980, appellee sold on open account $76,718.64 worth of tires (as inventory) to appellant, Contractors Tire and Supply, owned by appellant, Phillips. In January, 1981, these appellants transferred all of the business inventory, a truck, and accounts receivable to appellant Johnson, who renamed the business “Johnson Tire and Supply.” Appellants admit that appellee was not given notice of the transfer as required by Ark. Stat. Ann. § 85-6-105, and that they did not list the creditors as required by Ark. Stat. Ann. § 85-6-104. The chancellor’s findings that this was a bulk transfer and that there was a violation of the Act is clearly correct.

Appellants also argue that the Bulk Transfer provisions were not violated because appellee is not a “creditor” within the meaning of the Act. However, appellants did not argue this at trial and we cannot consider issues raised for the first time on appeal. Banks v. Jones, 239 Ark. 396, 390 S.W. 2d 108 (1965).

Appellants argue that it was error to appoint a receiver pendente lite as a remedy for a violation of the Bulk Transfers law because the requirements of Ark. Stat. Ann. § 36-112 were not met. This statute provides:

In an action ... by a creditor to subject any property or fund to his claim,... on the application of plaintiff or of any party whose right to or interest in the property or fund or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured, the court may appoint a receiver to take charge thereof during the pendency of the action. . . .

Since affirmative defenses of usury and a violation of the Wingo Act were raised, appellants assert that a receiver should not have been appointed because appellee’s right to recovery is not probable. The chancellor made a finding that violation of the Wingo Act was not applicable since the sale was in interstate commerce. No finding was made regarding the usury question, but the invoices would seem to indicate that appellee sold its merchandise from its company offices located in Mississippi. The trial court is not required to resolve all issues going to the merits before appointing a receiver. In this case usury is a matter which the appellants must prove at the trial on the merits. In any event, this is not a case where it is immediately clear whether or not the transaction is usurious. Under these circumstances it is not necessary that the trial court resolve this issue before appointing a receiver.

In this case the affidavit of account and the statements and invoices indicate that appellee’s claim is probable. The fact that appellant Phillips transferred all of his inventory and most of the business’s assets to appellant Johnson shows that the items of inventory recently sold by appellee are in danger of being lost, removed, or materially altered, particularly where the record reflects that $31,000 worth of inventory was purchased by Phillips in December, 1980, yet only $11,000 inventory was transferred to Johnson in January, 1981. Also, the trial court properly considered that at the time of the transfer the business had numerous creditors and that all were paid except appellee.

This statute providing for the appointment of a receiver is not mandatory but leaves it to the sound discretion of the court; where, as here, there is no evidence in the record showing that the trial court abused its discretion, its actions will not be disturbed. See Federal Land Bank v. Duffey, 193 Ark. 126, 97 S.W. 2d 908 (1936).

We do not reach the issue of whether a violation of the Bulk Transfers law alone would j ustify the appointment of a receiver pendente lite. But, when the Bulk Transfers law has been violated and when the requirements of Ark. Stat. Ann. § 36-112 authorizing the appointment of a receiver pendente lite are met, it is not error for a chancery court to appoint a receiver. See Bornsteine v. Wm. R. Moore Dry Goods Co., 226 Ark. 746, 294 S.W. 2d 52 (1956); Chowning, Bulk Transfers: Art. VI, 16 Ark. L. Rev. 71 (1962).

Appellants also attempt to appeal the chancery court’s refusal to transfer the case to circuit court. We have consistently held such an order is not appealable before final judgment:

[A]n order transferring a cause from circuit to chancery ... is not appealable, even though it affects a substantial right, because it does not determine or discontinue the action or prevent an appealable judgment, but only transfers the cause to another forum where it continues until disposed of.

Ark. S & L v. Corning S & L, 252 Ark. 264, 478 S.W. 2d 431 (1972); Womack v. Conner, 74 Ark. 352, 85 S.W. 783 (1905); Johnson v. Plant, 207 Ark. 871, 181 S.W. 2d 240 (1944); Vaughan v. Hill, 154 Ark. 528, 242 S.W. 2d 826 (1922).

Affirmed.


text:
    Grover CLEVELAND and Sybil CLEVELAND v. GRAVEL RIDGE SANITARY SEWER IMPROVEMENT DISTRICT NO. 213
    81-150
    625 S.W. 2d 446
    Supreme Court of Arkansas
    Opinion delivered November 30, 1981

      Gannaway & Darrow, for appellants.

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

The key question on this appeal is whether the appellants, who own land within the boundaries of the appellee sewer improvement district, are barred by a 30-day period of limitations from recovering damages assertedly caused by the district’s construction of three large sewage-treatment ponds in the vicinity of the appellants’ land. Ark. Stat. Ann. § 20-706 (Repl. 1968). This appeal is from an order sustaining the district’s plea of limitations. Our jurisdiction was invoked under Rule 29 (1) (c).

The district was organized in 1971, but the construction of the sewer system was delayed for several years. In 1975 the district filed this suit to condemn rights of way for roads and sewer lines across the property of the appellants and others. The right-of-way controversy has been settled, but the appellants had filed an answer asking for $96,000 as compensation for the damage caused by the construction of the sewer-treatment facility next to the appellants’ land. The district filed a reply to the appellants’ answer, asserting that the claim was barred because the district had followed the statutes in 1973 by filing its assessment of benefits and damages, § 20-705, that net benefits had been assessed against the appellants’ land, that the assessment of benefits was confirmed after the required two-weeks notice of a hearing had been published, § 20-706, and that the appellants had permitted the assessment to become final by failing to file suit in chancery court within the 30 days allowed by § 20-706. After a hearing on the issue of limitations only the trial court sustained the plea and dismissed the appellants’ claim.

We must sustain the appellants’ insistence that the district’s proof to sustain its plea of limitations was deficient. Unquestionably the burden of proof rested on the district. McCrite v. Hendrix College, 198 Ark. 1149, 133 S.W. 2d 31 (1939). At the hearing its witnesses testified in generalities about a public hearing apparently required by the Environmental Protection Agency, but there was a total want of proof about the district’s assessment of benefits and the appellants’ alleged failure to file a timely challenge. The hearing was held in 1978, but the court’s order of dismissal was not entered until October, 1980. In July, 1981, the trial court denied the district’s motion to supplement the record, finding that certain proffered documents had not been made part of the record. In view of the trial court’s ruling, which is fully supported by the record, we denied a similar motion to supplement the record. Hence the proof is fatally deficient.

There is no merit in the district’s suggestion that the appellants, after having filed what amounted to a counterclaim in the trial court, admitted the allegations in the district’s reply by failing to file a response to that pleading. Such a formal denial was not required either under our earlier practice or under the later Rules of Civil Procedure. See Lay v. Gaines, 130 Ark. 167, 196 S.W. 2d 919 (1917); A. R. Civ. P., Rule 7 (a) and Reporter’s Note 3 thereto.

The judgment is reversed, and the issue of limitations having been disposed of, the cause is remanded for further proceedings.


text:
    Johnnie Lee CHISUM v. STATE of Arkansas
    CR 80-213
    625 S.W. 2d 448
    Supreme Court of Arkansas
    Opinion delivered November 30, 1981

      Richard Gardner, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fexvell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

On May 26 of this year we affirmed Chisum’s conviction for manslaughter. Chisum v. State, 273 Ark. 1, 616 S.W. 2d 728 (1981). His petition for rehearing was denied on June 29. On October 23 he filed the present petition seeking the permission of this court under Criminal Procedure Rule 37.2 (a) to file in the trial court a motion for a new trial on the ground of newly discovered evidence. The petition must be denied, for two fundamental reasons.

First, our present Rule 37 is essentially the same as our earlier rule governing postconviction relief. That rule, adopted on October 18,1965, was called Criminal Procedure Rule No. 1. 239 Ark. 850a. It was not intended to provide within itself for a second trial. Rather, it created a method for determining whether the accused’s rights with respect to constitutional or statutory requirements had been violated “or whether the sentence [was] otherwise subject to collateral attack.” Thacker v. Urban, 246 Ark. 956, 440 S.W. 2d 553 (1969). There was no reason for this court to create machinery for a direct attack upon judgments in criminal cases, because that remedy had been adequately supplied by statute for a century or more. Consequently Criminal Procedure Rule No. 1 and its successor, our present Rule 37, provide a remedy when the sentence is vulnerable on constitutional grounds or is otherwise subject to collateral attack. Rule 37.1.

A motion asking the trial court to grant a new trial for newly discovered evidence is plainly a direct effort to have the judgment vacated, not a collateral attack. See Woods v. Quarles, 178 Ark. 1158, 13 S.W. 2d 617 (1929). We have already expressed our doubts, without having to decide, whether newly discovered evidence is a proper basis for relief under our postconviction rule. Gross v. State, 242 Ark. 142, 145, 412 S.W. 2d 279 (1967). We now declare that it is not.

Second, although, for the reasons stated, our permission is not required under Rule 37.2 (a) for the filing of a motion for a new trial for newly discovered evidence, the present motion could not have been granted even if it had been filed in the trial court rather than here. Its filing in October, 1981, after the trial and judgment in February, 1980, was far too late. Such motions have never been favored; consequently the time limitations have traditionally been short. The Criminal Code of 1869 required that a motion for a new trial in a criminal case for newly discovered evidence be filed within the same term of court as the entry of the judgment. Ark. Stat. Ann. §§ 43-2202 and 2203 (6) (Repl. 1977); Delaney v. State, 212 Ark. 622, 207 S.W. 2d 37 (1948). Our present criminal procedural rule and its predecessor statute both fix the time for filing a motion for a new trial as that allowed for the filing of a notice of appeal (ordinarily 30 days). Criminal Procedure Rule 36.22; Ark. Stat. Ann. § 43-2704. A motion filed 20 months after the judgment is obviously too late.

Furthermore, the motion must show the exercise of diligence, including an explanation of why the evidence was not discovered earlier. Gross v. State, supra. The supporting documents for the present motion consist of statements by private investigators, but apparently the investigators were not employed until after we had denied the petition for rehearing. For the most part the ‘‘newly discovered” witnesses and facts were already known to Chisum and his attorneys before the trial that resulted in his conviction. There being in effect a total want of any showing of diligence immediately after the trial in February, 1980, the motion could not in any event have been granted.

Petition denied.


author: John I. Purtle, Justice. George Rose Smith, J.,

text:
    Marie D. CAFFEY v. James CAFFEY
    81-143
    625 S.W. 2d 444
    Supreme Court of Arkansas
    Opinion delivered November 30, 1981

      Daggett, Daggett fa Van Dover, by: Robert J. Donovan, for appellant.

      Kinney, Easley fa Kinney, by: Knox Kinney, for appellee.
   John I. Purtle, Justice.

The trial court held that an insurance policy, purchased and paid for by appellant, inured to the benefit of both parties since the property, which was destroyed by fire, was owned by the parties as tenants in common. The trial court relied on the case of Brown v. Brown, 263 Ark. 189, 563 S.W. 2d 444 (1978). For her appeal the appellant alleges (1) that the trial court erred in holding that the case of Brown v. Brown cannot be distinguished; (2) that the appellate court should overrule the majority decision in Brown v. Brown and adopt the dissenting opinion; and, (3) that the trial court erred in its finding that the appellant insured the dwelling for its full value. Since we believe that Brown v. Brown was correct and is binding, we reject the arguments presented by appellant.

The facts in this case reveal that the parties were married for fourteen years before the divorce was granted on April 17, 1979. The appellant was awarded custody of the couple’s two minor children and possession of the house in question.

On October 12, 1979, the chancellor converted the property from an estate by the entirety to an estate in common. He ordered the property sold and the proceeds divided. The parties were given 60 days within which to sell the property. On December 8,1979, the house was consumed by fire.

Testimony revealed that the parties paid about $15,000 for the house. There had been improvements made to the house. The appellant estimated the total investment in the house to be approximately $18,000. There was testimony that the cheapest comparable house which could be built (containing 1200 square feet of living area) would cost between $32,000 and $34,000. Independent testimony also indicated the market value of the house was somewhere between $35,000 and $60,000. The witness, a builder, stated he could not positively say the destroyed house could not be rebuilt for $38,600.

The insurance existing on the house at the time of the divorce expired and the parties were made aware that there was no hazard insurance on the property. Apparently appellee refused to insure the house and sent word for the appellant to insure it, which she did. She took out a policy in the amount of $38,000 for the building and $19,000 for the contents. The policy was issued in her name only and showed FHA as the loss payee or mortgage holder. She also changed the FHA account to her name individually. After the house burned the insurance company paid the proceeds into the registry of the court and by agreement of the parties the loan to FHA was paid from those proceeds. The chancellor held that there was a fiduciary relationship between the parties and the policy was to cover the interests of both parties. In the division of the proceeds the appellant was given credit for her individual property consumed in the fire. Also, she was awarded delinquent child support from appellee’s portion of the proceeds on the marital personal property. The court then equally divided the insurance proceeds paid for the loss of the dwelling. The crux of the argument in this case is that the court erred in allowing the appellee to recover 50% of the net insurance proceeds paid for the loss of the building.

We think that Brown v. Brown, 263 Ark. 189, 563 S.W. 2d 444 (1978), is controlling in this case. In Brown we stated:

It is clear from this record that both appellant and appellee were tenants in common in the property involved as a consequence of the trial court’s action in converting the property owned by the parties from an estate by the entirety to a tenancy in common. ... As such, a fiduciary relationship existed between them which imposed on each a duty to protect and secure their common interest. From February, 1974, to January, 1975, appellee maintained insurance coverage, at her own expense, for the benefit of herself and for appellant. After appellee remarried and decided to move elsewhere, she immediately advised the appellant of her plans to the end that appellant could assume possession of the premises.

In previous cases we have held that tenants in common generally have a fiduciary or confidential relationship with the other tenants in common, imposed by law. Hendrix v. Hendrix, 256 Ark. 289, 506 S.W. 2d 848 (1974). We can think of no case which would more clearly impose the duty of one tenant in common to protect the other tenant in common than that presented under the facts in this case.

The trial court was not clearly erroneous in finding that the house was insured for its full value. The house originally cost about $15,000 in 1973. Although its replacement cost may be considerably more than its real value, we cannot say that there is no evidence to support the chancellor’s decree as to the value of the insured property. It is obvious that the market value of this house was less than the replacement cost. No doubt, the insurance company paid the full proceeds of the policy in accordance with the valued policy law in Arkansas. Therefore, the amount paid by the insurance company was evidence which could have been used by the chancellor in making the determination as to the value of the house.

This case was referred to us from the Court of Appeals pursuant to Rule 29. After reviewing the record de novo we are of the opinion that the trial court’s findings of fact were not clearly erroneous and Brown v. Brown, supra, should not be overruled.

Affirmed.

George Rose Smith, J., concurs.

George Rose Smith, J.,

concurring. If this were the first time the controlling question of law was being presented to us, I would take the position expressed in my dissenting opinion in Brown v. Brown. But the point has been settled by that case. The issue is not of really fundamental importance. Rather, this case presents the familiar situation in which the need for certainty in the law outweighs the possibility that a result contrary to precedent might be slightly more desirable. I therefore agree that Brown v. Brown should not be overruled.


text:
    Samuel E. JONES and Blanche JONES v. James P. SEWARD et al
    81-145
    625 S.W. 2d 443
    Supreme Court of Arkansas
    Opinion delivered November 30, 1981

      Dale W. Finley, for appellants and cross-appellees.

      Richard L. Peel, for appellees and cross-appellants.
   Robert H. Dudley, Justice.

We are considering this boundary line dispute for the second time. Appellants Samuel Jones and Blanche Jones owned property as tenants by the entirety which adjoined Gerald Ledford’s property. Fences had existed between the tracts but the parties did not know the exact location of the boundary line as described in their deeds. A surveyor was employed by Ledford to establish the boundary after conversations between the two had not been fruitful. Samuel Jones and Ledford agreed the surveyed line was the boundary. Subsequently Ledford sold part of his land to appellees, the Sewards, a dispute ensued and this suit was filed. The trial court ruled that the boundary line was settled by the oral agreement. We reversed and remanded because there was no evidence that Blanche Jones knew of the survey or agreed to the settlement of the dispute. We remanded the cause without prejudice to either party to establish the true boundary line. Jones v. Seward, 265 Ark. 225, 578 S.W. 2d 16 (1979).

At the second trial the chancellor found that the fence constructed in the 1950’s was the boundary. It is undisputed that appellees had destroyed that fence. Appellants now ask that the case be remanded with instructions to award compensatory damages for the destruction of the fence. We affirm the holding of the trial court as the amount of damages was neither proved nor proffered. Any award of damages would have been merely speculative. We will not reverse a refusal to award damages where the proof of damages is deficient or speculative. Poindexter v. Cole, 239 Ark. 471, 389 S.W. 2d 869 (1965).

The Sewards cross-appeal contending that the trial court committed error at the second trial in not considering evidence that Blanche Jones agreed to the survey. On the first appeal we held that there was no evidence that Blanche Jones knew of the survey “or acted in any manner that she was in agreement that the survey constituted the agreed boundary.” The judgment of the first appeal became the law of the case and was conclusive not only of every question of law or fact actually decided, but also of questions which might have been, but were not, decided. Storthz v. Fullerton, 185 Ark. 634, 48 S.W. 2d 560 (1932). The rationale of the law of the case was succinctly set out in Moore v. Robertson, 244 Ark. 837, 427 S.W. 2d 796 (1968).

The appellee’s contention is not now available to him, because it could and should have been made on the first appeal. The rule is that the decision on the first appeal is conclusive of any arguments that were or could have been made at that time. Storthz v. Fullerton, supra. The case at bar confirms the wisdom of the rule. If the appellee’s contention has merit — a point which we do not decide — its assertion on the first appeal would have done away with the necessity for a second trial and a second appeal, with their attendant expenditure of time and money. Such waste can be effectively prevented only by a strict adherence to the principle that points not urged upon the first appeal are not available later on.

The decision of the trial court was correct as to the fact of Blanche Jones’ absence of agreement was established on the first appeal.

Affirmed.


author: George Rose Smith, Associate Justice.

text:
    ACLIN FORD COMPANY et al v. William G. CORDELL and Marlene CORDELL
    81-153
    625 S.W. 2d 459
    Supreme Court of Arkansas
    Opinion delivered December 7, 1981
    [Rehearing denied January 11, 1982.]

      Rice, Batton ir Pierce, by: Ben Rice; Smith ir Nixon, by: W. R. Nixon, Jr., and John Plegge, for appellants.

      Lesly W. Mattingly, for appellees.

      Barber, McCaskill, Amsler, Jones ir Hale, by: Guy Amsler, Jr., amicus curiae.
   George Rose Smith, Associate Justice.

In February, 1980, the appellees, Mr. and Mrs. Cordell, bought a new car from Aclin Ford Company, the unpaid balance of the purchase price being payable in 48 monthly installments of $175 each. Aclin assigned the purchase contract to Ford Motor Credit Company. The Cordells brought this suit five months later to cancel the sale for usury. The chancellor canceled the contract, finding that the Cordells had been compelled to purchase credit life insurance in the trans-* action, that the $252 premium was part of the total amount to be financed, and that the inclusion of Aclin’s 35% commission for selling the insurance pushed the interest rate past 10% per annum.

On direct appeal Aclin and the finance company separately argue that the chancellor was clearly wrong in finding the contract to be usurious. Despite the many cases cited by both sides in their briefs, the controlling principles of law are settled. If a buyer or borrower is compelled as a condition to the extension of credit to buy insurance on which the seller or lender receives a commission, the commission may be treated as interest in the determination of usury. Strickler v. State Auto Finance Co., 220 Ark. 565, 249 S.W. 2d 307 (1952); Wilson v. Whitworth 197 Ark. 675, 125 S.W. 2d 112 (1939). On the other hand, if the buyer or borrower voluntarily agrees to the purchase of the insurance and the premium is not excessive, the commission is not to be considered as interest. Winkle v. Grand Nat. Bank, 267 Ark. 123, 139-F, 601 S.W. 2d 559 (1980), cert denied 449 U.S. 880 (1980); Poole v. Bates, 257 Ark. 764, 520 S.W. 2d 273 (1975).

Here the central issue was one of credibility as between interested witnesses. Mrs. Cordell testified that she told the Aclin salesman she did not want credit life insurance, but the salesman went into the office (presumably to check with Horton, the manager) and came back saying, “You have to have the credit life insurance.” Cordell testified that he commented that the insurance was not worth having, but the salesman said, “You’ve got to have it.” Horton and the salesman testified that the purchase of credit life insurance was not required, but the salesman admitted he had never sold a car to be financed with Ford Motor Credit Company without such insurance. The Aclin company had a pecuniary interest in selling the insurance on a commission basis rather than allowing the purchasers to reject it or to buy it through a third person. The chancellor stated that he had intently studied each witness, had considered the interest of each, and had concluded that the testimony justified, “in fact requires,” a finding that the Cordells were opposed to the credit life insurance, but assented to it only because “it was the only way the ‘deal could go through.’ ” We cannot say that the chancellor’s finding is clearly erroneous.

The appellants’ subordinate arguments require little comment. Even though the Cordells signed a printed form of election to take the insurance, parol evidence is admissible to show usury. Heidelberg Southern Sales Co. v. Tudor, 229 Ark. 500, 316 S.W. 2d 716 (1958). Aclin also argues that under decisions such as Universal C.I.T. Credit Corp. v. Lackey, 228 Ark. 101, 305 S.W. 2d 858 (1957), the finance company rather than Aclin was the lender. The distinction is immaterial, for a retailer selling on credit is receiving interest for his forbearance in collecting the debt and is therefore subject to the laws governing usury. Sloan v. Sears, Roebuck & Co., 228 Ark. 464, 308 S.W. 2d 802 (1957). The Cordells’ contract was usurious as to both the seller and the credit company.

The Cordells’ cross appeal brings up a completely different aspect of the case. After the couple bought the car they became dissatisfied with its performance and with what they regarded as Aclin’s unwillingness or inability to repair it. Finally the Cordells resorted to picketing Aclin by displaying signs at a point near the company’s place of business. One of the signs, for example, read: “Want a junk or a lemon, buy a car from Aclin Ford.” In the course of the picketing, which continued for 25 days, there was a physical encounter between Mrs. Cordell and an Aclin salesman over the possession of a photograph which the salesman had just taken. Other salesmen were also involved in exchanges of verbal insults, with the witnesses for each side testifying that they themselves acted with impeccable decorum in the face of the foulest possible epithets resorted to by their adversaries. The chancellor did not award any compensatory or punitive damages upon the various tort claims asserted by Aclin and by the Cordells. Aclin has not appealed from the denial of its claim, but the Cordells argue three points on their cross appeal.

First, the Cordells challenge the chancellor’s finding that the parties were equally at fault in the physical encounter. There was undoubtedly a loss of temper on both sides during the course of the picketing, so much so that in many respects the litigation became what lawyers call a swearing match. We are not convinced that the chancellor’s conclusion was plainly wrong.

Second, the Cordells question the chancellor’s finding that the Aclin salesmen were not acting within the scope of their employment in making slanderous remarks to Mrs. Cordell, it being charged that they called her a bitch and a whore. The ultimate question was whether the salesmen were acting in the futherance of their employer’s business in their altercations with Mrs. Cordell. Prosser has summed up the problem: “The most difficult questions arise where the servant, for strictly personal reasons and not in furtherance of his employment, loses his temper and attacks the plaintiff in a quarrel which arises out of the employment. . . . Here, unless some non-delegable duty can be found, the older rule denied recovery, and this is still the holding of the majority of the decisions.” Prosser, Torts, § 70 (4th ed. 1971). We express no opinion about any possible trend in the authorities, it being sufficient for us to say that the chancellor would not have been clearly wrong in deciding the issue either way.

Third, Mrs. Cordell argues that the chancellor was in error in holding that she was not entitled to recover for Aclin’s wrongful interference with her constitutional right to freedom of expression. The guaranty of free speech is a restriction upon governmental action, not upon the action of individuals. Lloyd Corp. v. Tanner, 407 U.S. 551 (1972); Central Hardware Co. v. N.L.R.B., 407 U.S. 539 (1972); Public Utilities Comm’n. v. Pollak, 343 U.S. 451 (1952). The appellant cites no authority to support her claim. We conclude that any recovery would have to be based upon tort law, not upon the Constitution. Moreover, the chancellor correctly noted that no such cause of action was asserted in the appellants’ pleadings.

We observe in closing that this case is unusual in that the chancellor ’ s equi table j urisdiction to cancel the con tract also drew the various tort claims into a court of equity. In the circumstances the chancellor may well have viewed the case as a whole and concluded that justice would be achieved by relieving the Cordells of the greater part of their debt on the contract and at the same time denying their tort claims. If that was in fact the chancellor’s conclusion, we do not think he was wrong.

Affirmed.


author: Darrell Hickman, Associate Justice. Frank Holt, Justice,

text:
    J. S. GRAMLING and Sarah GRAMLING v. W. E. JENNINGS
    81-122
    625 S.W. 2d 463
    Supreme Court of Arkansas
    Opinion delivered December 7, 1981
    [Rehearing denied January 11, 1982.]

      Floyd Clardy, of Boswell & Smith, P.A., for appellants.

      Sidney P. Davis, Jr., of Davis, Bassett, Cox ir Wright, for appellee.
   Darrell Hickman, Associate Justice.

This is a medical malpractice case. J. S. Gramling and his wife, Sarah, appeal from a judgment based on a jury verdict that found appellee Dr. W. E. Jennings not negligent when he severed Mrs. Gramling’s right ureter during surgery for the removal of a suspected ovarian tumor. Four days later a urologist repaired the ureter but complications resulting from the ligated ureter prolonged Mrs. Gramling’s recovery. The Gramlings argue three errors for reversal: The court was wrong in failing to give two instructions to the jury, AMI 301 and AMI 303; and, the court was wrong in allowing testimony that this was the first time in over twelve hundred pelvic surgeries the defendant had severed a ureter.

We find that the court erred in allowing the opinion testimony that the defendant was not negligent and reverse the judgment.

An expert witness for the defendant, Dr. Turley, who repaired the ureter, was allowed to testify that in his opinion the appellee, Dr. W. E. Jennings, was not negligent when he severed Mrs. Gramling’s ureter. The answer was: “No, I don’t think Dr. Jennings was negligent.” The appellee defendant gave the same opinion. The appellants contend that this testimony was tantamount to telling the jury what result to reach and beyond the scope of opinion testimony that is permitted by Ark. Stat. Ann. § 28-1001, Rule 704, (Repl. 1979). Rule 704 provides:

Testimony in the form of an opinion or inference, otherwise admissible is not objectionable because it embraces an ultimate issue to be tried by the trier of fact.

There is no doubt that the opinion by the expert did go to the ultimate issue which was whether Dr. Jennings was negligent. In our judgment it was an expression of an improper opinion and should not have been admitted. It is difficult to draw a line between opinion testimoy that merely embraces the ultimate issue and opinion testimony that tells the jury which result to reach. Rule 704 is based on the federal rule and according to the advisory committee notes on Rule 704, it was not intended that all opinion would be admissible. 3 Weinstein’s Evidence 704-2 (1981); 11 J. MOORE FEDERAL PRACTICE §§ 704.02, 704.10 (2nd. ed. 1976 & Supp. 1980-81). For example it would be a proper question in a will contest to ask, “Did the testator have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?” But it would be improper to ask an expert witness: “Did the testator have capacity to make a will?” McCORMICK ON EVIDENCE § 12 (2d ed. 1972); 11 J. MOORE FEDERAL PRACTICE § 704.01 [3], supra.

The appellee argues that our decision in McClellan v. French, 246 Ark. 728, 439 S.W. 813 (1969), which was decided before we adopted Rule 704, holds that an expert witness may testify as the one did in this case. In McClellan the question and answer were:

Q. In your opinion Dr. French was not guilty of malpractice in suturing this wound?
A. He was not.

We held in McClellan that the opinion was admissible. Language in the McClellan opinion suggests that the subject matter was such that the average juror would have no information or experience upon which to formulate an intelligent conclusion unless testimony of such a nature was permitted. Actually the question and answer in the McClellan case and the question and answer in this case are quite different. In this case it is a bald statement of an opinion as to the ultimate issue. In the McClellan case it was whether negligence was committed in suturing a wound, which related to a specific fact. We could give a broad interpretation to McClellan as appellee suggests but decline to do so because in our judgment that would run contrary to the real intent of Rule 704, adopted after McClellan was decided.

Rule 704 uses the word “embrace.” That word means that opinion testimony should not be rejected simply because it touches upon the ultimate issue, as quite often expert testimony does. At the same time “embrace ” is a word of limitation, suggesting that opinion testimony which simply tells the jury what to do is not permitted. If such testimony were to be permitted, the rule could easily have said so. In our judgment the opinion testimony in this case was erroneously admitted and since the appellant offered no expert testimony it had to be of a prejudicial nature. For this reason the j udgment is reversed and the cause remanded for a new trial.

The appellants’ argument that the trial court was wrong in failing to give AMI 301 and AMI 303 to the jury is without merit. In this case the appellants offered no expert testimony that the doctor was negligent. The doctor produced expert medical testimony that there was no negligence. When the court instructed the jury it gave the first paragraph of AMI 1501 which defines the duty of care owed by a physician to the patient. The appellants argue that since this is a type of medical malpractice case where medical testimony is not necessary to make a factual issue for the jury, the appellants were entitled to AMI Instructions 301 and 303 which repectively define negligence and ordinary care. The appellants assert that the standard of care, when medical experts are not necessary, is ordinary care. Therefore, without the two proffered instructions, the appellants’ theory of the case was not presented to the jury. Furthermore, it is argued that AMI 1501 only presented the appellee’s theory of the case. In other words, appellants argue that their proffered instructions on ordinary care and negligence should have been submitted so that the jury could decide the factual issue of negligence based upon their common understanding of what is required of all persons regardless of whether they are physicians.

Chapter 15 of AMI, the malpractice chapter, states that “The gravamen of most Arkansas malpractice actions has been negligence. When a plaintiff alleges that the physician who diagnosed his ailment or treated or operated upon him was negligent, AMI 501 applies.” The 1980 Note on Use [revised] of AMI 1501 reiterated this position. Here the cause of action is premised on negligence. There is no suggestion in our Model Jury Instructions or any of our cases that AMI 301 or 303 is appropriate in a medical malpractice case. See Pry v. Jones, 253 Ark 534, 487 S.W. 2d 606 (1972). To the contrary, the note on use following AMI 301 (negligence) refers to AMI 1501 for the definition of negligence on the part of a physician. AMI 303 (ordinary care) also refers to AMI 1501 for the standard of care required by a physician. The second paragraph of AMI 1501 requires the jury to consider only the evidence presented by experts as to the requisite degree of skill and learning required of physicians. However, that paragraph was not given. Instead, AMI 102 was used as indicated by the note on the use of AMI 1501, which instructs the jurors to use their common knowledge and consider the evidence in light of their own observations and experiences in the affairs of life. We hold that the trial court was correct in refusing to give AMI 301 and AMI 303.

The appellants’ final contention is that the trial court erred “in allowing testimony and argument concerning evidence about the percentage of ureters severed in similar surgeries and this was the first time he severed a ureter.” Appellee responds that this issue should not be considered on appeal inasmuch as the appellants made no objection to the introduction of the evidence nor the argument. Even so, in view of a retrial, we deem it necessary to discuss the issue. We are of the view that the percentage evidence of appellee’s successful performance in similar operations is irrelevant to the issue of negligence as to this particular operation. The conditions existing in other operations over a period of years and the results thereof are not necessarily relevant to the present facts. See Siegel, King and Company v. Penny and Baldwin, 176 Ark. 336, 2 S.W. 2d 1082 (1928). Here the jury could improperly or impermissibly infer that, based on the defendant’s prior successful and uneventful conduct, he was therefore not negligent under the facts of the instant case.

Reversed and remanded.

Holts, J. dissents.

Frank Holt, Justice,

dissenting. I disagree with the majority’s view that the court erred when it allowed opinion testimony that the defendant was not negligent when he severed Mrs. Gramling’s ureter. In McClellan v. French, 246 Ark. 728, 439 S.W. 2d 813 (1969), as the majority notes, we held that an expert witness, a doctor, was properly permitted to testify that the suturing of a bleeding wound, in his opinion, was not “malpractice.” There, as here, the argument was made that this opinion was the ultimate question or issue for the jury to determie. There we noted that the expert witness used and understood the word “malpractice” as it related to the “standard medical procedure in the community.” Here, as I view the record, the expert witness also based his opinion upon the recognized standards and procedures of the medical profession in the community. Further, I do not agree that our recent Rule 704, which the trial court relied upon, circumscribed the admissibility of the opinion testimony in this case. Neither of the doctors told the jury how to rule, and it was free to accept or reject their testimony as any other witness.

Neither was there error in allowing testimony and argument conerning evidence as to the percentage of ureters severed by appellee in similar surgeries since, as appellee correctly points out, the appellants made no objection to this deposition testimony nor the argument made to the jury.

I would affirm.