text:
    John WHITFORD v. Charles DANIELS, Commissioner of Labor, et al
    77-374
    563 S.W. 2d 469
    Opinion delivered April 3, 1978
    (Division I)

      Gilbert L. Glover, Paula Casey and William Massey, of Legal Aid Bureau of Central Ark., for appellant.

      Thelma M. Lorenzo, for appellees.
   Darrell Hickman, Justice.

This is an appeal from an order of the Garland County Circuit Court affirming a decision by the Board of Review of the Arkansas Employment Security Division.

John Whitford was employed by the National Parks Service during the summer of 1976. When his seasonal employment was terminated he applied for unemployment benefits. He received those benefits until it was later determined that, through no fault of his own, he had been overpaid $231.00. His employer originally reported that he had received wages during two quarters when, in fact, he had worked in two quarters but been paid in only one quarter. It is necessary to work in and be paid in two quarters to be eligible for unemployment compensation benefits. Ark. Stat. Ann. §81-1105(e)(1) (Repl. 1976).

Whitford was mailed a form by the Employment Security Division notifying him that a redetermination had been made as to the number of quarters in which he was paid. Since Whitford had a job at that time he ignored the notice. He later received an overpayment determination notice.

After a hearing on this second notice, the referee for the Employment Security Division held that Whitford was not entitled to the money and would have to repay it. This decision was affirmed by the Board of Review and the Garland County Circuit Court. We agree.

Whitford alleges two errors on appeal: that the original notice of redetermination did not notify him that he could be required to pay the money back; and, that since the overpayment was not Whitford's fault, the order requiring him to repay the money was invalid and is against equity and good conscience.

We will not consider the first argument because the notice from the Employment Security Division to Whitford of redetermination of his wages is not in the trial record. Part of that notice was reproduced by the appellant in his brief; however, we do not consider any matters outside the record and it is improper to argue or reproduce anything that is not in the trial record.

On review of decisions from the Board of Review of the Employment Security Division we look to see if the findings of the Board of Review are supported by substantial evidence. Terry Dairy Products Company, Inc. v. Cash, 224 Ark. 576, 275 S.W. 2d 12 (1955).

Whitford argues that he should not be required to repay the money. A repayment can be waived because of undue hardship, or because it would be against equity and good conscience to require repayment. Ark. Stat. Ann. § 81-1107 (f)(2) (Repl. 1976). The referee indicated that Whitford could not raise this issue because an appeal had not been filed from the notice of wage redetermination. However, he permitted Whitford to testify about his financial condition. After Whitford testified about his financial situation, the referee ordered the repayment. It was brought out that Whitford had $4,000 in savings.

We cannot say that the Board of Review’s decision is not supported by substantial evidence.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Howard, JJ.

      We declined to permit the parties to submit the document after oral argument.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    James R. BURNETT v. STATE of Arkansas
    CR 77-222
    564 S.W. 2d 211
    Opinion delivered April 3, 1978
    (Division I)
    [Rehearing denied May 8, 1978.]

      Nabors Shaw, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

James R. Burnett was convicted of possession of marijuana with intent to deliver and sentenced by the Pope County Circuit Court to a term of imprisonment in the Arkansas penitentiary.

On appeal Burnett argues that the court improperly admitted evidence obtained from a search of Burnett’s residence. There was no motion filed to quash the search warrant nor to suppress the evidence until the trial had commenced. Burnett concedes the motion was untimely filed but argues on appeal that this motion was not overruled because of untimeliness.

The Arkansas Rules of Criminal Procedure state that motions to suppress shall be filed not later than ten days before the trial date except when the court, for good cause, entertains the motion at a later time. Rule 16.2(b), Rules of Grim. Proc. (Repl. 1977). No evidence of cause for the late filing was offered by the appellant.

The trial judge did permit Burnett to question the search. However, after reading into the record the first page of a motion Filed to quash the search warrant and suppress the evidence, the court stated:

Motion to suppress is denied. Let the record reflect the motion to suppress was filed after the trial had already started.

Apparently, later during the trial, other written objections were filed to challenge the search and seizure.

When it was called to the court’s attention that these more specific objections had been made by written motion, the court stated:

... I will not permit it to be filed at this late hour. Motion is denied.

The fact that the trial court permitted the attorney for Burnett to question the sheriff and other witnesses regarding the search warrant and the affidavit does not mean that the court approved the untimely filing of the motion to suppress. We feel the record shows that the court ruled that the motion or motions, as the case may be, were ruled untimely.

We made a similar decision in Parham v. State, 262 Ark. 241, 555 S.W. 2d 943 (1977).

Affirmed.

We agree.

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


author: George Rose Smith, Justice.

text:
    Rodney Dale REEVES v. STATE of Arkansas
    CR 77-220
    564 S.W. 2d 503
    Opinion delivered April 10, 1978
    (Division I)
    [Rehearing denied May 15, 1978.]

      Matthew Horan, for appellant.

      Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was charged with the theft of a 1973 Volkswagen car by receiving — an offense that is essentially what was formerly known as receiving stolen property. Ark. Stat. Ann. § 41-2206 (Repl. 1977). Upon trial by jury he was found guilty and was sentenced, as a habitual offender, to 10 years’ imprisonment and to a $10,-000 fine. Several points for reversal are argued by court-appointed counsel.

The State’s proof showed that on the night of August 27, 1976, the appellant Reeves and Mike Lovell, a police informant, drove together in Reeves’s car from Fort Smith to Fayetteville for the purpose of stealing a Volkswagen. In Fayetteville the two men found a car of the kind that Reeves wanted. Lovell actually stole the car and followed Reeves back to Fort Smith. There they drove the Volkswagen into a garage next to Reeves’s residence and used specialized tools to remove the several V.I.N.’s. (vehicle identification numbers) from the stolen car. Lovell was paid $150 for his assistance when he left at about dawn. The police obtained a search warrant and searched the premises, finding the vehicle in question and several other Volkswagens from which the V.I.N.’s had been similarly removed.

It is first argued that the court should have granted a defense motion for a month’s continuance and a defense motion for a second preliminary hearing. Our difficulty with respect to both motions arises from the absence of any facts tending to show why the court abused its discretion in denying the motions.

Neither motion was supported by the proffer of testimony. Counsel simply argued that 18 days was not sufficient time for him to prepare the case for trial and that a second preliminary hearing should be ordered because Reeves, as a result of having been found not to be an indigent, was not represented by counsel at the first preliminary hearing. It is argued here, as it was in the court below, that the issues in the case were so complex that it could not. be properly prepared for trial in 18 days and that evidence favorable to Reeves might have been developed at a second preliminary hearing. We have, however, no facts to go on except the record of the actual trial as abstracted by counsel. That record indicates that Reeves received a fair trial and was well represented. In matters of this kind, turning essentially upon the many practical considerations that must be taken into account in setting a case for trial, we must depend upon the sound judgment of the trial court unless a clear abuse of discretion is made to appear. That showing has not been made in this case.

It is next argued that the court should not have allowed the State to prove Reeves’s commission of other offenses; that is, that the officers found on Reeves’s premises other Volkswagens from which the V.I.N.’s had been removed. The State did not actually try to show that the other vehicles had been stolen, though no doubt the jury so inferred. Even so, the proof was admissible as tending to show Reeves’s knowledge that the 1973 Volkswagen in question had been stolen. Evidence of other crimes may be admissible to show knowledge. Ark. Stat. Ann. § 28-1001, Rule 404 (b) (Supp. 1977). It makes no difference that the prosecution had already shown by a witness that Reeves had participated in the theft of the Volkswagen. The State was entitled to prove its case as conclusively as it could. That Reeves possessed other vehicles from which the V.I.N.’s had been removed in a similar manner was competent evidence to suggest to the jury that he had so removed the V.I.N.’s from the Volkswagen in question for the purpose of preventing its possible identification as stolen property; in short, he must have known that it was stolen.

Third, the appellant questions the admissibility of the State’s proof of previous convictions under the habitual criminal statute. Three of the four convictions that were proved showed that the sentences had been suspended. It is argued that such a judgment is not a “conviction” within the meaning of the habitual criminal law.

In Rogers v. State, 260 Ark. 232, 538 S.W. 2d 300 (1976), we held that under the habitual criminal statute in effect in 1975, a judgment imposing a suspended sentence was adrpissible as a conviction. Act 228 of 1953, as amended. That statute was superseded by the Criminal Code, which became effective on January 1, 1976, under which the case at bar was tried. Act 280 of 1975, § 1001 (a section now in turn superseded by Act 474 of 1977, § 4; Ark. Stat. Ann. § 41-1001 [Repl. 1977]). We do not see, however, any such difference between the language of the statute construed in the Rogers case and that of the 1975 Code as to indicate a change in the legislative intention. On this point counsel for the appellant argues that in Rogers we relied in part upon a reference in the 1953 statute’s emergency clause to “persons commilling more than one felony,” a phrase not to be found in the 1975 Code. The Code, however, was a comprehensive act made up of hundreds of sections. There was no reason for the legislature to repeat the quoted phrase in its emergency clause. There is, however, a reason for us to hold, as we do, that if the legislature meant for its earlier language to include judgments imposing a suspended sentence, as we decided in Rogers, then the legislature had the same intention in reenacting substantially the same language in the Criminal Code. It may be noted, in passing, that the 1977 statute, not applicable to this case, may have adopted the view now urged upon us by this appellant. See Ark. Stat. Ann. § 41-1001 (Repl. 1977).

It is also argued that the State’s proof of two previous convictions, both in Sebastian Circuit Court, was inadmissible, because the circuit clerk’s testimony about them was based upon the court’s docket entries. It is true that a docket notation is not the entry of a final judgment. Herrod v. Larkins, 183 Ark. 509, 36 S.W. 2d 667 (1931). The habitual criminal law applicable to this case provides, however, that a previous conviction may be proved by any evidence that satisfies the trier of fact that the defendant was convicted. Act 280 of 1975, § 1003. Under the Uniform Rules of Evidence, preliminary questions about the admissibility of evidence are decided by the trial court. Ark. Stat. Ann. § 28-1001, Rule 104 (a) (Supp. 1977). Under Rule 803 (8) of those rules, a record of a public office setting forth its regularly conducted and regularly recorded activities is not hearsay (which was the objection made in the trial court). Here the trial court decided that the testimony of its own clerk, based upon its own docket entries, was proper for the jury’s consideration. The Uniform Rules of Evidence are to be construed to the end that the truth may be ascertained and proceedings justly determined. Rule 102. Here there is no suggestion whatever that the docket entries did not correctly reflect the court’s judgments in the earlier cases in which Reeves was convicted. We find no sound basis for saying that the trial judge’s ruling was wrong.

Other minor points are argued, but they arc without merit.

Affirmed.

We agree.

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


author: Frank Holt, Justice.

text:
    ADVANCE CONSTRUCTION CO., INC., and SAFECO INSURANCE CO. OF AMERICA v. George DUNN and Joe DUNN, d/b/a DELTA ASPHALT & CONCRETE COMPANY
    77-281
    563 S.W. 2d 888
    Opinion delivered April 10, 1978
    (Division II)

      Friday, Eldredge & Clark, by: David A. Orsini, for appellants.

      L. David Stubbs, for appellees.
   Frank Holt, Justice.

The appellees, subcontractors of appellant Advance Construction Company, Inc., a general contractor, sought to recover damages from Advance for its alleged breach of two contracts. The appellant contractor terminated appellees’ contract on the basis appellees’ asphalt surfacing in certain areas was unsatisfactory and the appellees had failed to complete their work after appellant contractor had given them directions to do so according to specifications. However, according to appellees’evidence, the weather and soil conditions had prevented them from completing their contracts, as requested, and, otherwise, they were able and willing to complete the projects had their contracts not been terminated. This appeal results from separate jury verdicts for the appellees in the amount of $2,600 and $15,000 plus ten percent interest from the filing date of the complaint. Advance Construction first contends that the court erred in instructing the jury on damages and not directing a verdict in its favor because the appellees did not meet their burden of proof on damages.

With respect to the University of Arkansas at Monticello contract, the total contract price was $31,000 with $13,500 being paid, leaving a balance of $17,500. According to the appellees’ evidence, in order to fully complete the work, including repair of defects, it would cost $1,662.50. This work involved the putting down of a 1" overlay or leveling course on one of the lots involved. This would require 95 tons of asphalt at $17.50 per ton, including the cost of laying the asphalt. This cost of completion ($1,662.50) was then subtracted from the balance due ($17,500) on the contract with the difference of $15,837.50 being the amount appellees claim they are entitled to. ($17,500 - $1,662.50 = $15,837.50) As to the Armory project, which was an addendum to the University of Arkansas at Monticello project, appellees testified that nothing had been paid on the contract price of $3,325. They had completed $2,068.56 worth of work. The difference, $1,-256.44, between that figure and the contract price of $3,325 is what it would cost to complete the project. However, appellees gave appellant credit for the completion cost and claimed only the $2,068.56 as the balance owed on this project.

On the Sesame School project, the contract price was $9,800. Appellees had been paid $3,600, leaving a balance due of $6,200. According to the appellees, the cost of completion would require 110 tons of asphalt laid at $22.50 per ton. The extra cost per ton resulted since “more hand work” was involved in laying the asphalt on this project. Therefore, the cost of completion was $2,475. This would leave a damage figure of $3,725. ($6,200 - $2,475 = $3,725)

Appellant contractor argues that this evidence as to measure of damages does not meet the formula enunciated in Reed v. Williams, etc., 247 Ark. 314, 445 S.W. 2d 90 (1969), and Robertson v. Ceola, 255 Ark. 703, 501 S.W. 2d 764 (1973), which it interprets to mean that the proper ascertainment of damages must be arrived at by subtracting the incurred and projected expenses from the contract price to arrive at profit and then subtract from the profit the amount paid on the contract to arrive at the balance owed by the contractor. However, we have recognized as proper another formula for determining damages in a breach of contract action. In Royal Manor Apts. v. Powell Const. Co., 258 Ark. 166, 523 S.W. 2d 909 (1975), we stated that when a subcontractor, as here, is prevented by the general contractor from completing the work, “[t]he plaintiff may elect to rely upon the contract and claim the full amount of the agreed price, less what it would have cost him to complete the construction.” Here the court instructed the jury to determine appellees’ damages, if any, by awarding them the full contract price minus any payments made and minus what it would have cost appellees to complete the construction contracts. The agreed contract price and the progress payments are undisputed. As indicated, appellees offered testimony as to how much it would cost them to complete the construction. Therefore, there was no error in instructing the jury on the measure of damages since appellees’ evidence, when viewed most favorably on appeal as we must do, is sufficiently substantial to justify the instruction.

Appellant contractor next asserts the court erred in excluding the evidence of its corporate secretary as to the amount it paid, $7,848.75, to another subcontractor to complete the University of Arkansas at Monticello project. Appellees’ cost of completion figure, as indicated, was $1,-662.50. Appellees objected to appellant contractor’s evidence on the ground that the evidence was in the nature of a setoff or counterclaim and the appellant contractor should be bound by its pleadings which did not raise that issue as it had in the companion case. Appellant contractor argues here, although not before the trial court, that this evidence was admissible to refute appellees’ evidence on the issue of breach and reasonable cost of completion. Appellees also objected on the basis that “the reasonableness of Aries’ (subcontractor who completed the asphalting) completion is certainly a new issue” which appellees were unprepared to meet. It appears that, although Aries’ cost of completion was made known informally to appellees “many days” before trial, appellees’ interrogatories pertaining to Aries’ completion were not answered until a week before trial. Aries himself was not presented as a witness who would have been subject to cross-examination. It was appellant contractor’s burden to show the cost of completion by their subcontractor, Aries, rather than what it paid him. In the circumstances we cannot say the trial court abused its discretion in excluding the evidence of appellant contractor’s corporate secretary.

Finally, appellant contractor contends the court erred in awarding interest on the verdict at the rate of 10% from the date the complaints were filed. It argues that appellees did not recover exactly the amount demanded in their complaint and further the sum sought was unliquidated; therefore, prejudgment interest should not be awarded. We have approved prejudgment interest where a sum certain was sought. Loomis v. Loomis, 221 Ark. 743, 255 S.W. 2d 671 (1953); Teck-Neeks, Inc. v. Francis, et al, 241 Ark. 390, 407 S.W. 2d 938 (1966); and Williams v. Varner, 253 Ark. 412, 486 S.W. 2d 79 (1972). Art. 19, § 13, Arkansas Constitution (1874), which prohibits interest in excess of 10%, provides for 6% interest on a contract whenever it is silent on the item of interest. In Teck-Neeks, Inc. v. Francis, supra, we specifically allowed 6% prejudgment interest citing Loomis v. Loomis, supra. Here sums certain were sought by appellees in their complaints for breach of contract. Although the appellees did not recover the sums sought, they are entitled to 6% interest from the date of Filing their complaint. See Loomis v. Loomis, supra. Ark. Stat. Ann. § 29-124 (Supp. 1977), however, provides for 10% interest following judgment. Consequently, the court erred in awarding 10% prejudgment interest. The judgment is modified to allow 6% prejudgment interest and 10% following judgment.

Affirmed as modified.

We agree: Harris, C.J., and Footeman and Byrd, JJ.

Hickman, J., dissents as to the allowance of any prejudgmeht interest.


text:
    W. N. NANCE et al v. Horace WILLIAMS, Chairman et al
    77-314
    564 S.W. 2d 213
    Opinion delivered April 17, 1978
    (In Banc)

      William B. Howard, for appellants.

      Wright, Lindsey & Jennings, for appellees.
   George Rose Smith, Justice.

We have had two statutes asserting and protecting the public’s right to information about the transaction of public business and the conduct of public affairs. In this suit for a declaratory judgment the principal question is whether the later, statute, the Freedom of Information Act, repealed the earlier one by implication. Act 93 of 1967, Ark. Stat. Ann. §§ 12-2801 et seq. (Repl. 1968); Act 343 of 1953, Ark. Stat. Ann. §§ 6-604 and 6-605 (Repl, 1976). We agree with the trial judge’s conclusion that there was an implied repeal.

In March, 1977, the electors of the Beedeville School District approved a proposed $150,000 bond issue. Before the bonds were issued the appellants, as taxpayers in the district, brought this suit for a judgment declaring that the actions of the defendant school directors in calling the election were void, because no advance notice of certain pertinent emergency meetings of the school board was given to the press. No such notice was required by the 1967 Freedom of Information Act, because none of the news media had requested it. § 12-2805. On the other hand, notice would have been required by the 1953 statute, because it directed that notice be given even though not requested. § 6-604.

Repeals by implication are, of course, not favored. This case, however, falls within the rule that when a later act covers the entire subject matter of an earlier one, adding new provisions and plainly showing that it was intended as a substitute for the first one, then the older act is repealed by implication. Forby v. Fulk, 214 Ark. 175, 214 S.W. 2d 920 (1948).

The Freedom of Information Act is decidedly more comprehensive than its 1953 predecessor. The newer act, for example, recognizes the public’s right of access to public records and every citizen’s right to appeal to the courts from any denial of rights guaranteed by the act. The older act did not contain those guarantees. The Freedom of Information Act changes almost every provision in the 1953 act, including the enumerated public agencies that are subject to the act, the notice to be given of public meetings, the persons responsible for giving that notice, the matters that may be considered in executive session, and the penalties for violations of the act.

It is fair to say that no provision in Act 343 of 1953 was left untouched by the Freedom of Information Act. We have no doubt that the legislature, in enacting the later statute, intended to cover the entire field anew and to supersede any earlier legislation on the subject. Hence there was an implied repeal. (We need not, and do not, express any opinion with regard to the appellants’ argument that when the required notice of an emergency meeting is not given, all action taken at that meeting is void.)

By cross appeal the appellees question the action of the trial court in sustaining a demurrer to their counterclaim and dismissing it. By that counterclaim the school district sought to recover certain damages because the pendency of this suit had prevented it from obtaining a non-litigation certificate, which in turn had prevented it from issuing the proposed bonds. The counterclaim does not state a cause of action, for it does not assert any fact (or even any conclusion of law) suggesting that the suit was brought without probable cause or without a reasonable belief that the claim might be held to be valid. Absent some such allegation, the mere filing of a lawsuit is not an actionable wrong. Restatement, Second, Torts, § 675 (1977); see also Leek v. Brasfield, 226 Ark. 316, 290 S.W. 2d 632 (1956).

Affirmed on direct and cross appeal.

Fogleman, J., not participating.

Harris, C.J., concurs in the result.


text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Clifford L. CUTRELL and his wife
    77-331
    564 S.W. 2d 213
    Opinion delivered April 17, 1978
    (Division I)

      Thomas B. Keys and Kenneth R. Brock, for appellant.

      Jones & Petty, for appellees.
   George Rose Smith, Justice.

This is an action by the appellant to condemn land for highway purposes. The condemnor’s expert witness estimated just compensation at $5,-100. The landowners’ expert put the figure at $30,700. In appealing from a $12,000 verdict the condemnor argues that the trial court abused its discretion in limiting the cross-examination of Mr. Cutreli, one of the landowners. We find no abuse of discretion.

The condemnor took 2.47 acres of the Cutrells’ 4.34-acre tract, leaving 1.87 acres. Before this case was tried the Arkansas Power & Light Company, a public utility, acquired an additional acre of the remainder, for use as a railroad spur track. On direct examination Cutreli testified: “I just considered [the original tract] ruined. What’s left is too small ...” Cutreli also said on direct examination: “I don’t see that it has too much value. It’s too small for anything commercial. You could build a house on it, but that’s about all.”

On cross-examination Cutreli was asked about the one-acre sale to the power company. The landowners’ counsel objected on the ground that the price paid by a condemnor having the power of eminent domain is not admissible to show market value. Ark. State Highway Commn. v. Lemley, 252 Ark. 549, 479 S.W. 2d 855 (1972). The highway department insisted, however, that proof of what the power company had paid was admissible on the issue of credibility, Cutrell having testified that the tract had been ruined and could be used only as the site for a house. In sustaining the landowners’ objection the trial judge expressed his reluctance to go into the collateral matters that would arise from proof of the terms and circumstances of the power company’s purchase.

A trial judge has broad discretion in controlling the scope and extent of cross-examination. Nelson v. State, 257 Ark. 1, 513 S.W. 2d 496 (1974); Newell v. Arlington Hotel Co., 221 Ark. 215, 252 S.W. 2d 611 (1952); Bartley and Jones v. State, 210 Ark. 1061, 199 S.W. 2d 965 (1947); King v. State, 106 Ark. 160, 152 S.W. 990 (1913). That the principle is stated in terms of discretion means, of course, that the rules are not inflexible, that there is some leeway for the exercise of sound judgment.

Here it cannot be said that the trial court abused its discretion in limiting the cross-examination. On direct examination Cutrell had made no effort to value his tract in dollars and cents, either before or after the taking. He had merely said that the taking had ruined it and that what was left was too small for commercial use. It is unlikely that the jury would have been able to better weigh the credibility of those rather vague statements merely by knowing what sum the power company had paid for the acre that it took.

On the other hand, the possibilities of unfairness to the landowners are great. To begin with, the price paid was not evidence of market value; but would the jury have been able to consider the proof only for the narrow issue of credibility? Even more important, the landowners would have been entitled to show why the strip taken for a spur-track right-of-way had peculiar value to the power company and why the landowners had sold an acre rather than engage in another condemnation case. In the end, this simple condemnation suit might easily have been encumbered by a completely different lawsuit, devoted to the pros and cons of the utility company’s acquisition of a spur track. We are not persuaded that such a burdensome procedure was called for, in view of the minimal assistance the jury might have derived from the proffered proof. (For a similar instance of balancing the worth of impeaching testimony, see Rule 609 of the Uniform Rules of Evidence, which directs the trial court to determine whether the probative value of a previous conviction outweighs its prejudicial effect. Ark. Stat. Ann. § 28-1001 [Supp. 1977].)

Affirmed.

We agree.

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


author:
Darrell Hickman, Justice.
      John A. Fogleman, Justice,

text:
    Carl DUNCAN v. STATE of Arkansas
    CR 77-213
    565 S.W. 2d 1
    Opinion delivered April 17, 1978
    (In Banc)
    [Rehearing denied May 22, 1978.]

      Frierson, Walker, Snellgrove & Laser, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Carl Duncan was charged and convicted of rape before the new Arkansas Criminal Code was adopted. We reversed his first conviction for prejudicial error. Duncan v. State, 260 Ark. 491, 541 S.W. 2d 926 (1976). Duncan was again tried on the same information, convicted and now alleges one error on appeal.

Before the trial the trial judge ruled in chambers that the victim could not be cross-examined about her previous sexual conduct or misconduct. The court also informed the lawyers that the defendant could not be examined about his previous sexual behavior or sexual offenses. Duncan’s lawyer objected to the court’s ruling which apparently was based on Act 197 of 1977.

This act was passed after Duncan’s first trial and after the new criminal code was adopted. Duncan was tried for forcible rape under the old rape statute. Ark. Stat. Ann. § 41-3401 (Repl. 1964). Generally, Act 197 prohibits inquiry of a victim’s previous history of sexual conduct. The act provides for the exclusion of evidence of a rape victim’s prior sexual conduct unless it is determined to be relevant at a pre-trial hearing.

There were three objections to the court’s ruling: (1) it denied the defendant’s right to equal protection of laws and right to due process of law as guaranteed by the United States and Arkansas Constitutions; (2) the act is void and unconstitutional for the same reasons; and, (3) it prohibited the defendant from questioning the victim as to her virginity or offering extrinsic evidence regarding her virginity.

The appellant did not proffer any evidence at this hearing or later during trial; nor did appellant renew his objection at any other time. During the trial the victim was subjected to a rather pressing cross-examination. However, the appellant argues that his cross-examination was limited by the court’s ruling.

The appellant did question a doctor who examined the victim about all his findings as to. the victim’s physical appearance after the incident. He also obtained information about the condition and size of her vaginal cavity. This was some of the evidence that he argued he would be prohibited from presenting.

We cannot say from this record that Duncan was prejudiced by the ruling of the court. First of all, virginity is not relevant per se in a rape case. The courts have historically permitted a defendant’s attorney to cross-examine in detail a victim as to her complete sexual history. This information is usually totally irrelevant to the charge of rape. Act 197 was obviously designed to limit this type of examination and protect the victim from unnecessary humiliation.

There was no proffer whatsoever of any extrinsic evidence that Duncan may have had, bearing on the victim’s sexual history, to aid us in determining if Duncan was prejudiced. Duncan indicated he had such evidence. We have said many times that the failure to proffer evidence so that we can see if prejudice results from its exclusion precludes review of the evidence on appeal. Goodin v. Farmers Tractor & Equip. Co., 249 Ark. 30, 458 S.W. 2d 419 (1970); Barnes v. Young, 238 Ark. 484, 382 S.W. 2d 580 (1964); cf., Hill v. State, 250 Ark. 812, 467 S.W. 2d 179 (1971). See also, Rule 103(a)(2) Ark. Stat. Ann. § 28-1001 (Supp. 1977).

Duncan argues on appeal, in addition to the constitutional arguments raised at the trial, that Act 197 cannot be applied to Duncan because it only applies to one charged under the new criminal code. It is unnecessary for us to answer this argument or the constitutional arguments because we can find no prejudicial error resulting from the trial court’s ruling.

Affirmed.

Fogi.eman and Byrd, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I have difficulty in relating the failure to proffer evidence of previous sexual activity by the prosecuting witness to the ruling of the trial court. The ruling questioned was made sua sponte in camera before the trial commenced. It was very sweeping. The circuit judge said:

THE COURT: Let the record show that this is in chambers and out of the presence and hearing of the jury.
Counsel for the State and for. the defendant are admonished by the Court not to make any reference either by way of cross-examination of the alleged victim nor will they be permitted to offer any extrinsic evidence going to any prior sexual conduct or behavior of the State’s witness, the alleged victim, with the defendant or any other witness at any time other than the event which is the basis for the rape charge in this case.
MR. LASER: Your Honor, are you also holding that the State has no right to inquire of the defendant regarding previous sexual behavior?
THE COURT: Correct.
MR. LASER: Including sexual assaults, rapes or anything of the kind where they didn’t result in convictions?
THE COURT: Not the prosecuting witness or the alleged victim concerning her — any prior sexual conduct of the alleged victim.

Both appellant and appellee reach the inescapable conclusion that this action by the trial judge was based upon § 1 of Act 197 of 1977. That section reads:

Sec. 1. In any criminal prosecution under Arkansas Statutes Annotated 41-1803 through 41-1810 or for criminal attempt to commit, criminal solicitation to commit or criminal conspiracy to commit an offense defined in any of these sections, opinion evidence, reputation evidence, or evidence of specific instances of a victim’s prior sexual conduct with the defendant or any other person is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the witness or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.

No other issue is presented on appeal and only that part of the record essential to the issue arising from the trial court’s application of that statute is abstracted by appellant. Appellee supplies only brief excerpts from the cross-examination of the examining physician, perhaps in an effort to demonstrate that the error, assuming that there was error, was harmless.

Application of the statute was clearly erroneous. Appellant was properly prosecuted under Ark. Stat. Ann. § 41-3401 (Repl. 1964) for an offense alleged to have occurred on November 28, 1974. It defined the crime of rape thus:

Rape is the carnal knowledge of a female, forcibly, and against her will.

The crimes to which Act 197 of 1977 applies are quite differently defined. For example, rape is defined by Ark. Stat. Ann. § 41-1803 (Repl. 1977) as follows:

(1) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(a) by forcible compulsion; or
(b) who is incapable of consent because he is physically helpless; or
(c) who is less than eleven (11) years old.
(2) Rape is a class A felony

By the clear language of the act itself, it is not applicable to the present prosecution.

It seems to me that the ruling of the trial court does not encompass one important factor relating to the admissibility of evidence. If the court’s limiting order is restricted to evidence pertaining to specific acts, then it did not exclude otherwise admissible evidence as to the reputation of the prosecutrix for chastity. The objection registered by appellant’s attorney did not reach this type of evidence either, although appellant does suggest in his argument that the ruling prevented his cross-examining the witness as to any fact which would indicate a seductive nature on her part which contributed to the circumstances of the prosecution. Not only does this peculiar question arise for the first time on appeal, but it seems to be based upon the erroneous premise that the prosecutrix could be examined about specific acts with others on the issue of consent. But this type of proof is severely limited.

Want of consent by the prosecutrix is an essential element of the crime for which appellant was prosecuted. State v. Peyton, 93 Ark. 406, 125 S.W. 416, 137 Am. St. Rep. 93; Zinn v. State, 135 Ark. 342, 205 S.W. 704. See also, Gann v. State, 200 Ark. 947, 141 S.W. 2d 834. Consequently, want of consent was an issue and not an affirmative defense. The character of the prosecutrix for chastity could be impeached in order to raise a presumption of consent. Smith v. State, 150 Ark. 193, 233 S.W. 1081. See also Rowe v. State, 155 Ark. 419, 244 S.W. 463.

Even so, appellant could only have cross-examined the prosecutrix about her prior acts or conduct with him. On the issue of consent, the accused has been permitted to show the character of the prosecutrix by general evidence of her reputation in that regard, but not by interrogation of her as to particular instances of her unchastity, except as to intercourse or conduct with the accused. Pleasant v. State, 15 Ark. 624. Appellant’s objection does not reach this kind of cross-examination.

The prosecutrix could, however, also have been cross-examined as to particular acts of immorality in order to impeach her credibility. Lockett v. State, 136 Ark. 473, 207 S.W. 55 (on rehearing). It is true that this right is not absolute and that the trial judge must exercise discretion in determining whether specific questions and answers appellant believed would be given if the prosecutrix answered truthfully had probative value on the credibility of the witness or whether the witness was entitled to protection from mere humiliation and embarrassment. King v. State, 106 Ark. 160, 152 S.W. 990. See also, Fike v. State, 255 Ark. 956, 504 S.W. 2d 363. It is true this would require a very limited type of proffer. See also, Washington National Insurance Co. v. Meeks, 249 Ark. 73, 458 S.W. 2d 135; Kingrey v. Wilson, 227 Ark. 690, 301 S.W. 2d 23; Dixon v. State, 162 Ark. 584, 258 S.W. 401. But the scope of the court’s order was too sweeping to permit the very limited proffer required in such cases. Although we have not passed upon the question in Arkansas, it is widely, if not universally held that a proffer is not necessary to preserve the question if, because of the trial court’s attitude, it would be a useless gesture or if the trial court has ruled broadly that no such evidence or proof will be received. Bishop v. State, 38 Ala. App. 667, 92 So. 2d 323 (1957); Dixon v. Coffey, 161 Neb. 487, 73 N.W. 2d 660 (1955); Beneficial Fire & Cas. Ins. Co. v. Kurt Hitke & Co., 46 Cal. 2d 517, 297 P. 2d 428 (1956); State v. Brewer, 73 Idaho 191, 249 P. 2d 189 (1952); Eby v. City of Lewistown, 55 Mont. 113, 173 P. 1163 (1918); LaRault v. Palmer, 51 Wash. 664, 99 P. 1036 (1909), 21 L.N.S. 354. See also, Sprouse v. Magee, 46 Idaho 622, 269 P. 993 (1928); State v. Miller, 132 Kan. 474, 296 P. 714 (1931); Grieve v. Howard, 54 Utah 225, 180 P. 423 (1919); Montez v. Superior Ct.for Co. of L.A., 10 Cal. App. 3d 343, 88 Cal. Rptr. 736 (1970).

I would reverse the judgment and remand the case for a new trial.

I am authorized to state that Mr. Justice Byrd joins in this opinion.


author: Darrell Hickman, Justice. George Howard, Jr., Justice,

text:
    Phil BUCK v. Bobby STEEL, Circuit Court Judge
    CR 77-224
    564 S.W. 2d 215
    Opinion delivered April 17, 1978
    (In Banc)

      Philip M. Clay, for petitioner.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

We granted a temporary writ of prohibition to the petitioner, Phil Buck, to prevent the Circuit Court of Pike County from proceeding further in his criminal case until we could examine his argument in depth. We find that the writ should not be made permanent.

In October of 1977, Buck was charged by information with violation of Ark. Stat. Ann. §§ 41-3578 and 41-3580 in that he knowingly exhibited an obscene film to members of the Glenwood High School football team.

Buck in his petition to us states that these statutes he was charged with violating were repealed by Act 464 of 1977 and, therefore, the lower court should be prohibited from proceeding in this case.

Act 464 of 1977 is an attempt by the General Assembly to define and regulate obscenity on a statewide basis. It defines in detail what is obscene material and what conduct is prohibited. Act 464 prohibits the showing of an obscene film for compensation but does not prohibit such a showing which is free.

Ark. Stat. Ann. §§ 41-3578, et seq. (Grim. Code 1976) provide that it is unlawful for any person to knowingly exhibit any obscene film — whether there is any compensation is irrelevant; the offense is a felony with a penalty of not more than $2,000 or imprisonment from one to five years, or both. However, violation of Act 464 is only a misdemeanor.

Act 464 of 1977 does not expressly repeal these statutes. We have consistently held that repeals by implication are not favored. Mears v. City of Little Rock, 256 Ark. 359, 508 S.W. 2d 750 (1974); Selig v. Powell, 253 Ark. 555, 489 S.W. 2d 484 (1972). Furthermore, we have held that acts dealing with the same subject matter should be construed together, if possible, so that meaning may be given to both acts. See Cook v. Bevill, 246 Ark. 805, 440 S.W. 2d 570 (1969).

Considering the two acts side by side we cannot say they are in direct conflict. One act prohibits the public or private showing of obscene material for compensation. The other act extends this prohibition to anyone who exhibits obscene material free or without charge or compensation.

Perhaps the most convincing bit of evidence that the legislature did not intend to repeal these statutes is the fact that the act, before it was adopted, expressly provided that Act 411 of 1967, Ark. Stat. Ann. §§ 41-3578 through 41-3580 would be repealed. This provision was later deleted from the final act as approved by the legislature. In other words, the legislature expressly chose not to repeal the statutes Buck is charged with violating.

Since it is our decision that Act 464 of 1977 does not repeal Act 411 of 1967, we decline to grant the writ of prohibition.

Writ denied.

Howard, J., concurs.

Byrd, J., dissents.

George Howard, Jr., Justice,

concurring. 1 concur in the results of the Court inasmuch as it is my belief that the issue raised in this Court can be raised and adjudicated in the trial court.


author: George Howard, Jr., Justice.

text:
    Jerald V. NIETERT, Doris A. NIETERT, Husband and Wife; C. L. GOODWIN and Alice GOODWIN, Husband and Wife v. CITIZENS BANK & TRUST COMPANY of Van Burean, Arkansas
    77-396
    565 S.W. 2d 4
    Opinion delivered April 17, 1978
    (Division I)
    [Rehearing denied May 22, 1978.]

      Hershel W. Cleveland, of Hixson & Cleveland, for appellants.

      Carl Creekmore and Lonnie Batchelor, for appellee.
   George Howard, Jr., Justice.

The fundamental issue for resolution in this case is whether rescission of a real estate mortgage, because of the failure of the lender to disclose to debtors their right to rescind the transaction until midnight of the third business day following the closing of the transaction, as required under the Federal Truth-in-Lending Act, should be conditioned on repayment or offer of repayment of the funds advanced to the debtors.

THE FACTS

Appellants, Jerald V. Nietert and Doria A. Nietert, his wife, entered into a contract with appellants, C. L. Goodwin and Alice Goodwin, his wife, on April 19, 1973, to purchase a farm consisting of 104.75 acres in Logan County, Arkansas. At the time, Farmers Cooperative of Arkansas and Oklahoma held a mortgage on the premises which had been given by the Goodwins. Farmers Cooperative had, subsequently to its execution, assigned the mortgage and note to appellee, Citizens Bank & Trust Company of Crawford County.

On June 5, 1974, a representative of appellee, S. D. White, visited the home of appellants and presented, for appellants’ signatures, a note, payable on demand, in the sum of $107,729.87 with interest at the rate of 9 1 /2% per annum, a real estate mortgage covering the farm in question, a security agreement involving certain personal assets and a financing statement. A written notice of right of rescission, prepared in accordance with the Federal Truth-in-Lending Act, dated May 31, 1974, was signed by C. L. Goodwin and Jerald V. Nietert as well as another document designated as a disclosure statement. It is admitted by appellee that the wives of Goodwin and Nietert did not execute the right of rescission document nor was a copy delivered to them.

A contract for the purchase of chickens from Ken Ballew Hatcheries, Inc., was also executed by C. L. Goodwin and Jerald V. Nietert, Farmers Cooperative and Ken Ballew Hatcheries, Inc.

On February 5, 1976, there existed a balance due on the note in the sum of $96,704.78. Appellee-plaintiff made demand for payment which was refused by appellants.

However, the attorney for appellants on May 3, 1976, wrote the following letter to Dane Riggs, president of appellee-bank:

“Dear Mr. Riggs:
“As you are now aware, Mr. J. H. Evans and myself represent Mr. and Mrs. Jerald V. Nietert and Mr. and Mrs. C. L. Goodwin in regard to that certain transaction between our clients and the Citizens Bank and Trust Company on June 5, 1974.
“It is our clients’ position that the Notice of Right of Rescission as required by Regulation Z as amended, the Truth and Lending Act as amended, Section 226.9 was not furnished to the Nieterts and the Goodwins as required by law. Our clients therefore do hereby elect to rescind and cancel the aforesaid transaction entered into the Citizens Bank and Trust Company on June 5, 1974.
“The exercise of this Right of Rescission renders the entire transaction void and voids any security interest which the Citizens Bank and Trust Company might have had by virtue of this transaction. Furthermore, our clients are not liable for any finance charges which have accrued since June 5, 1974. Our clients are obligated, however, to return the original principal amount of the loan advanced after having received full credit for all payments made since June 5, 1974.
“Please advise as to the total payments that Citizens Bank and Trust Company have received since June 5, 1974, on said indebtedness, so that we may calculate the amount of refund owed by our clients to the Citizens Bank and Trust Company.
“We will expect to hear from you at your earliest possible convenience.” (Emphasis added)

On May 13, 1976, the following letter was sent to Mr. Riggs by appellants’ attorney:

“Dear Mr. Riggs:
“I am writing this letter to confirm my previous discussions with you and Mr. Bachelor. On May 3, 1976, I advised you that Jerald V. Nietert and C. L. Goodwin were electing to rescind that certain transaction with the Citizens Bank and Trust Company on June 5, 1974.
“By this letter, I hope to clarify our position. As noted in my previous letter, my clients are obligated to pay the original principal amount of the loan advanced after having received full credit for all payments made since June 5, 1974. However, since this will necessitate my clients obtaining a loan elsewhere, they are willing to pay interest at the rate reflected in the original note from May 3, 1976, until the aforesaid principal amount of the note is paid. Furthermore, I will assure you that if we can reach an agreed settlement, my clients will immediately make application to the Farmers Home Administration for the necessary funds to repay this principal amount due.
“In addition to the above, at Mr. Bachelor’s request, we are agreeable to extending the 10 day requirement set out in Section 226.9 an additional 15 days in order that you might further discuss this matter with your Board of Directors.
“If you need any further information, or have any questions, please contact me at your convenience.” (Emphasis added)

The essential pleadings filed in this action consist of a foreclosure action filed November 22, 1976, by appellee in the Logan Chancery Court'; and an answer and counterclaim filed by appellants asserting non-compliance with rescission notice provisions of the Truth-in-Lending Act as a bar to appellee-plaintiff’s foreclosure action. Specifically, appellants asserted that once notice to rescind the transaction was served on appellee, appellee had ten days in which to release all security interest in the real estate involved and having failed to do so, appellee has not only forfeited the finance charges, but is precluded from recovering the money advanced; and that appellee is entitled to a release of the security and reasonable attorney’s fees.

Appellee responded to the counterclaim asserting that in conjunction with appellants’ rescission notice, appellants made an offer of settlement which appellee accepted; that the settlement provided essentially that there would be a simultaneous release of security and tender of the money advanced by appellee; and that appellee has been ready and willing to satisfy the security, but appellants have not made a tender of the funds advanced as provided for in the settlement arrangement. Appellee further asserted that in reliance upon the settlement, appellee withheld its foreclosure action for several months in order to afford appellants time to secure the necessary funds to repay the money advanced.

HOLDING OF THE TRIAL COURT

“. . . [T]he proper notice of Right of Rescission under the Truth in Lending Act of the Congress of the United States . . . was not given to all the proper parties and the parties were entitled to rescind said instruments on May 3, 1976, upon tender of payment of the principal amount due, without interest or financing charges of any kind; and were entitled to have all mortgages, financing statements or other security interest satisfied and released upon Defendants tendering to Plaintiff said sum of $80,701.87. Plaintiff is now entitled to Judgment as hereinabove set out and to foreclosure of their Mortgage hereinabove described.

“. . . Defendants are not entitled to attorney’s fees or statutory penalties under United States Law.”

THE DECISION

I.

RIGHT OF RESCISSION

Relevant statutory provisions of the Federal Consumer Credit Disclosure Act, Title 15, U.S.C., § 1635 are as follows:

“(a) . . . [I]n the case of any consumer credit transaction in which a security interest is retained or acquired in any real property which is used or is expected to be used as the residence of the person to whom credit is extended, the obligor shall have the right to rescind the transaction' until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required under this section and all other material disclosures required under this part, whichever is later, by notifying the creditor, in accordance with regulations of the Board, of his intention to do so. The creditor shall clearly and conspicuously disclose, in accordance with regulations of the Board, to any obligor in a transaction subject to this section the rights of the obligor under this section. The creditor shall also provide, in accordance with regulations of the Board, an adequate opportunity to the obligor to exercise his right to rescind any transaction subject to this transaction.
“(b) When an obligor exercises his right to rescind . . ., he is not liable for any finance or other charge, and any security interest given by the obligor becomes void upon such a rescission. Within ten days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, down payment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction If the creditor has delivered any property to the obligor, the obligor may retain possession of it. Upon the performance of the creditor’s obligations under this section, the obligor shall tender the property to the creditor, except that if return of the property in kind would be impracticable or inequitable, the obligor shall tender its reasonable value. Tender shall be made at the location of the property or at the residence of the obligor, at the option of the obligor. If the creditor does not take possession of the property within ten days after the tender by the obligor, ownership of the property vests in the obligor without obligation on his part to pay for it.” (Emphasis added)

The evidence reflects clearly that appellee extended to C. L. Goodwin and Jerald V. Nietert the right to rescind the transaction within the meaning of the statute by delivering the necessary documents to them, but the evidence further reflects that their wives were not presented the necessary documents for rescission, nor did appellants’ wives execute an acknowledgment of receipt of such documents. Consequently, appellee breached its duty to disclose to appellants their right to rescind this transaction until midnight of the third business day following the consummation of the transaction and such right continued until appellee had delivered the disclosures required. See: Gerasta v. Hibernia Nat'l Bank, 411 F. Supp. 176 (1975).

While the evidence in this case established that appellants advised appellee, by communication dated May 3, 1976, and May 13, 1976, that appellants were rescinding the transaction, appellants on the other hand, proposed an offer of settlement on terms and conditions that are contrary to the statutory scheme of the Truth-in-Lending Act. Under the statute, where an obligor exercises his right to rescind, he is not liable for any finance or other charge, and any security interest given by the obligor becomes void upon such a rescission. Within ten days after receipt of notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, down payment or otherwise, and shall take any action necessary to reflect the termination of any security interest created under the transaction. Upon the performance of the creditor’s obligation under the Act, the obligor shall tender to the creditor the property received under the transaction. If the creditor does not take possession of the property within ten days after tender, ownership of the property vests in the obligor without obligation to pay for it.

The evidence also reflects that the appellants made application for loans at five financial institutions — Citizens Bank of Booneville, First National Bank at Paris, First National Bank of Fort Smith, American National Bank at Charleston and Federal Land Bank — seeking to secure funds with which to repay the principal sum due appellee, but these applications were all denied. It is clear that appellants have now changed their posture with reference to the settlement offer made and accepted by appellee by insisting now that they are not willing to repay any principal due appellee because appellee-bank did not release the security within ten days after notice of rescission in accordance with the Act. It is readily obvious that appellants did not have the necessary funds, nor were there any prospects for securing funds to repay the money advanced by appellee. Consequently, in desperation, appellants seek to invoke the statutory scheme to the detriment of appellee by endeavoring to free the assets of appellee’s lien and leaving appellee without any protection whatsoever. A court of equity cannot close its eyes to such an invidious scheme disguised in the name of consumer protection which has as its majn objective to defeat the security interest of a creditor who has cooperated with the debtor fully and even during trial offered to withhold action on its foreclosure suit in order to give appellants additional time to secure funds to pay appellee.

In this case, the appellants-obligors requested the appellee-creditoi' to apply all sums paid by appellants as credit to funds received by appellants instead of refunding these funds to appellants, as required by law. In addition, appellants advised appellee, in effect, to disregard the time schedule contained in the Act for the performance of the creditor’s duties since appellants will need time to arrange a loan in order to repay the money advanced by appellee. Moreover, appellee’s vice .president testified that appelleebank accepted the offer, of settlement and readily acknowledged that as. a consequence of appellee’s failure to disclose the right to rescind to the wives of appellants, appellee had forfeited the finance charges and would be entitled only to the funds advanced. The vice president also testified as follows:

“Q. I’ll ask you, have you as president of the bank offered and been willing, ready, and able since May 13, 1976 to satisfy every security instrument you have upon payment of the balance due?
“A. Yes, sir, the principle (sic) with interest from May the 3rd, 1976, we offered to do that.
“Q. Since he asked you, Mr. Riggs, were you willing to satisfy or release those documents at any time on payment of the principle (sic) balance due?
“A. That was the jest (sic) of every conversation that we had, commencing with the March conversation of 76 in which Mr. Nietert . . . and Mr. Lippard were present. It’s been the jest (sic) of every conversation that I've had subsequent to that. The problem has been apparently that Mr. Nietert has been unable to obtain the funds from whatever source to pay the indebtedness with.''

Under the circumstances existing in this case, we conclude that the trial court’s holding that appellants were not entitled to a release of the mortgage until appellants had tendered payment of the principal amount due without interest and finance charges is supported by a preponderance of the evidence. See: LaGrone v. Johnson, 534 F. 2d 1360 (1976).

The facts in this case are to be distinguished from those in Sosa v. Fite, 498 F. 2d 114 (1974) where the Court granted a right of rescission without requiring a tender or offer of tender of the principal sum due by the debtor. There the debtor served a notice to rescind and insisted that the statutory scheme be followed. Moreover, the Court in Sosa, found that even after the debtor had elected to rescind the transaction, the creditor refused to respond to the notice of rescission and steadfastly refused to perform his obligations required under the Act. Furthermore, the Court in Sosa also found that the creditor there was one of dubious reputation; and his workmanship in connection with repairs and improvements made on the home of the debtor was of poor quality. In the instant case, appellee-creditor readily acknowledged, upon receipt of notice of rescission, that it was entitled only to the principal sum advanced and stood ready and willing to satisfy the security upon payment of the principal sum in accordance with the settlement offer made by the debtors.

II.

ATTORNEY’S FEES

Under § 1640(a), U.S.C., it is provided, in pertinent part, as follows:

“(a) Except as otherwise provided in this section, any creditor who fails in connection with any consumer credit transaction to disclose to any person any information required under this part to be disclosed to that person is liable to that person in an amount equal to the sum of
“(1) twice the amount of the finance charge in connection with the transaction, except that the liability under this paragraph shall not be less than $100 nor greater than $1,000; and
“(2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with a reasonable attorney’s fee as determined by the court.”

In Sosa v. Fite, 498 F. 2d 114 (1974), the Court gives a cogent and comprehensive analysis of the provisions in the Federal Truth-in-Lending Act calling for attorney’s fees. In relevant part, the Court said:

“. . . [W]e begin with the settled proposition that congressional goals underlying the Truth-in-Lending Act include the creation of ‘a system of private attorney generals who will be able to aid the effective enforcement of the Act.’- . . . Thus, an individual suit on a private cause of action under Truth-in-Lending may nonetheless have public dimensions, since successful efforts directed toward vindicating private rights will aid in bringing about compliance with the regulatory scheme. . . . Additional public-related benefits are provided by the stare decisis effect successful litigation may have entitling others to statutorily provided relief. . . . Sosa has therefore effectuated a strong congressional policy and is entitled to attorneys’ fees, in the exercise of the court’s discretion, even though the statute sued under does not expressly provide for such an award. . . . Moreover, the fact that other parts of the same statute do provide for attorneys’ fees does not foreclose an award under provisions which are silent on the matter, so long as the suit is one which vindicates congressional policy . . . .”

In Sosa, the creditor refused to respond to the debtor’s notice of rescission and failed to recognize and abide by the plain operations of the rescission remedy. Thus, the debtor was compelled to resort to federal court for relief. Here, the creditor readily admitted its obligations under the Act and withheld foreclosure action on the note and mortgage executed by appellants pending compliance on the part of debtors with the terms of the settlement offer. After a period of several months, the appellee-creditor finally instituted its foreclosure action. Consequently, the instant case is not on all fours with Sosa. Moreover, there are two additional reasons why appellants are disentitled to recover attorney’s fees:

1. The civil relief provided a debtor under 1640(a) has a one year limitation period which commenced from the date of consummation of the transaction. The instant transaction was consummated on June 5, 1974, and appellee’s complaint was filed November 27, 1976, and appellants’ counterclaim was filed August 10, 1977. See: Title 15, U.S.C., §1640(e). See also: Gillis v. Fisher Hardware Co., 289 So. 2d 451 (1974), where the Court held that the one year statute of limitations contained in this section was applicable to a counterclaim asserted in a foreclosure action.
2. The debtors in this action have not been successful in their counter action against the appellee. Therefore, it cannot be stated that the appellants have effectuated in any way a strong congressional policy.

Affirmed.

We agree.

Harris, C.J., and Georoe Rose Smith and Hickman, JJ.

      The evidence reflects that S. D. White served as credit manager for Farmers Cooperative and was also serving in the capacity as vice president in charge of agricultural credit for appellee at the time in question.

      The $107,729.87 note was to be applied as follows: (a) $77,729.87 represented the renewal of a note executed by the Goodwins on July 24, 1973, in the sum of $94,577.08 with a balance due in the sum of $77,729.87; (b) the balance in the sum of $30,000.00 represented a cash advance to appellants to purchase 30,000 hens from Ken Ballew Hatcheries, Inc.

      Citizens Bank of Booneville held a first mortgage on the lands in ques- . tion pursuant to a mortgage executed on July 16, 1971, by C. L. Goodwin and Alice Goodwin securing a loan in the sum of $27,548.00. This indebtedness is not in issue in this case.

      Even though this schedule is inconsistent with the traditional common law requirements of rescission, Congress has the power to alter the common law. Palmer v. Wilson, 359 F. Supp. 1099 (1973).

      The congressional declaration of the purpose of the disclosure requirements is to aid consumers in deciding for themselves the reasonableness of credit charges imposed and to enable them to effectively shop for credit. Mourning v. Family Publications Service, Inc., 449 F. 2d 235 (1971).

      In 1974, the act was amended to provide that an obligor’s right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs earlier, notwithstanding the fact that the disclosures required have not been delivered to the obligor.


author: Bill Penix, Special Justice. Carleton Harris, Chief Justice,

text:
    ARKANSAS SAVINGS & LOAN ASSOCIATION v. MACK TRUCKS OF ARKANSAS, Inc., Armond L. SMITH and Shirley G. SMITH, His Wife; HARRIS CATTLE COMPANY, Frank E. McGEHEE, Trustee for FIRST PYRAMID LIFE INSURANCE COMPANY of AMERICA, and Truman O’NEIL
    77-91
    566 S.W. 2d 128
    Opinion delivered April 17, 1978
    (In Banc)
    [Rehearing denied June 19, 1978.]

      House, Holmes & Jewell, by: Robert L. Robinson, Jr., and H. B. Stubblefield, for appellant.

      Laser, Sharp, Haley, Young & Boswell, P.A., by: John H. Haley, for appellees, and cross-appellants Mack Trucks of Arkansas, Inc. and Armond L. Smith and Shirley Smith.

      Southern, Stewart, Gunter, Matthews & Alexander, by: Byron S. Southern, for appellee Truman O’Neil.

      E. DeMatt Henderson, of Catlett & Henderson, for appellee. Harris Cattle Company.

      O. H. Storey, III, for appellee Frank E. McGehee, Tr. for First Pyramid Life Ins. Co.

      Hardin, Jesson & Dawson, for amicus curiae Arkansas Savings & Loan League.

      Wright, Lindsey & Jennings, for amicus curiae Central Arkansas Bank Clearing House Association.
   Bill Penix, Special Justice.

On March 1, 1974, Mack Trucks of Arkansas, Inc., Armond Smith and Shirley G. Smith executed a note secured by a mortgage to Arkansas Savings and Loan Association of North Little Rock, Arkansas. The note was for $340,000.00, plus interest at the rate of nine percent per annum, and was for the purpose of a construction loan for one year.

Arkansas Savings was to and did make periodic disbursements out of the loan proceeds. On March 6, 1974, Arkansas Savings disbursed to itself $3,400.00. The $3,400.00 was noted by Arkansas Savings as a “service charge”, but there was testimony that the charge was a “commitment fee”. Arkansas Savings defined this as a charge for the lender binding itself “. . . absolutely and unconditionally to make said loans and advances as the construction of the improvement progresses”. Further, the testimony was that while the loan required Arkansas Savings to tie up the funds committed to Mack Trucks and the Smiths for one year, the borrowers could obtain credit elsewhere and never draw the funds down.

The agreement required Mack Trucks and the Smiths to pay taxes and hazard insurance. Arkansas Savings paid these charges totalling $3,429.65. The mortgage provided that these expenditures should be added to the principal sum of the debt.

Mack Trucks and the Smiths defaulted on the note. Arkansas Savings ultimately sued and the primary defense raised was usury. The Chancellor held that the $3,400.00 “service charge” or “commitment fee” was interest and that when added to the stipulated interest charged, the total was greater than the Arkansas constitutional limitation of ten percent during the one year term of the note. The Chancellor sustained the usury defense and dismissed the complaint except to the extent of the $3,429.65 paid by Arkansas Savings for taxes and hazard insurance which the Chancellor found to have been paid for all parties. Arkansas Savings was declared to have an equitable lien on the collateral of the mortgage to the extent of the $3,429.65. A second lien was awarded Harris Cattle Company in the principal amount of $39,911.54 on a mortgage which had been subordinated to the mortgage of Arkansas Savings. A third lien was found on the property in favor of First Pyramid Life Insurance Company in the principal amount of $23,416.66 for a later mortgage. A fourth lien was found on the property in favor of Truman O’Neil in the principal amount of $130,500.00 for a still later mortgage.

Arkansas Savings appealed the Chancellor’s decree. Mack Trucks and the Smiths and Truman O’Neil cross appealed with regard to the Chancellor awarding the $3,-429.65 first lien in favor of Arkansas Savings for taxes and insurance. Able briefs have been filed on behalf of Arkansas Savings, Mack Trucks and the Smiths, Harris Cattle Company and Truman O’Neil, as parties, and by Central Arkansas Bank Clearing House Association and Arkansas Savings and Loan League, as amicus curiae.

I.

The primary issue in this case is whether the $3,400.00 “service charge” or “commitment fee” is interest. Interest at the legal maximum of ten percent for the year, March 1, 1974 to March 1, 1975, would have been $15,024.82, according to Arkansas Savings’ computations. The contract called for interest at the rate of nine percent per annum and the parties stipulated that Arkansas Savings charged interest in the amount of $13,653.74, not counting the $3,400.00 fee. If the $3,400.00 were interest, then the total interest charged for the year was $17,053.94 — $2,028.92 above ten percent.

This court previously has set forth two principles to determine when additional charges are interest. Sosebee v. Boswell, 242 Ark. 396, 414 S.W. 2d 380 (1967). First, “any profit extracted by the lender must be treated as interest if it depends upon a contingency not within the control of the debtor”. Second, “the moneylender cannot impose upon the borrower charges that in fact constitute the lender’s overhead expenses or costs of doing business”. The first principle does not apply in this case since the one percent charge was made without regard to any contingency.

The second principle indicates the $3,400.00 charge is interest. The evidence is that a “commitment fee” is a common practice of savings and loan associations in the Little Rock area, purportedly for the association’s willingness to set aside funds for the borrower. Arkansas Savings apparently charges one percent on all of its loans, construction, long-term, commercial and residential. This is no more than the collection from the borrower of a part of the lender’s overhead or expense of doing business. If it is not payment of overhead expense, then the charge has no basis. Without any basis, the fee would be an unjustified service charge which should be included as interest under the note.

Although it is not in issue here, Arkansas Savings charged Mack Trucks and the Smiths a second one percent fee of $3,400.00 which was paid in cash on August 23, 1974. This apparently was for permanent financing which never was carried out. This court is not ruling on whether the second $3,400.00 is interest.

The $3,400.00 Arkansas Savings disbursed itself March 6, 1974, whether it was a “service charge”, “commitment fee”, “points” or whatever, was no more than a discount — the taking of interest in advance. The Chancellor correctly held that the total of the interest charged to Mack Trucks and the Smiths made the loan usurious.

The collecting of interest by discounting and withholding money at the beginning of the term of a loan is a very old practice. In 1896 this court upheld a statute which allowed a ten percent initial discount for not more than one year. Bank of Newport v. Cook, 60 Ark. 288, 30 S.W. 35 (1896). The statute, as amended, now purports to allow discounting of a note to extend up to 36 months under certain circumstances. Ark. Stat. Ann. § 68-604 (Repl. 1957). The statute apparently has not been tested in recent times, but has been analyzed in articles. Note, Discounting of Commercial Paper, 1 Ark. L. Rev. 341 (1953); Mitchell, Usury in Arkansas, 26 Ark. L. Rev. 263 (1972).

The appellant questioned the ruling of the Chancellor as to the admissibility of evidence of custom. Any error in this regard was harmless. The evidence, if admitted, would not have changed the outcome of this case. Just because a practice is a matter of custom does not make it any less usurious.

II

Arkansas Savings urges that the Chancellor erred in refusing to hold that Mack Trucks and the Smiths were es-topped from pleading usury and that Harris, First Pyramid and O’Neil lacked standing to raise the defense of usury. There is nothing in the record to indicate the Chancellor’s decision was against the preponderance of the evidence. It is not necessary to consider whether Harris, First Pyramid or O’Neil had standing to raise the defense of usury since it adequately was raised by Mack Trucks and the Smiths.

III

Appellant contends that the “Brock Bill”, 12 U.S.C. 1830, kept the one percent charge from being usurious. The Brock Bill legalized loans of more than $25,000.00 for business or agriculture provided the interest rate did not exceed by more than five percent the discount rate on ninety day commercial paper in effect in Federal Reserve Banks. The Brock bill did not become law until October 29, 1974, and applied only to loans made after its enactment. The loan here was made by Arkansas Savings March 1, 1974.

IV

There is no merit to Arkansas Savings’ argument that a disclaimer provision in the mortgage purged the transaction from usury. The mortgage provision stated that Arkansas Savings did not intend to charge over ten percent and would make no claim to any interest over ten percent. The $3,400.00 charge was interest and was collected by Arkansas Savings. The disclainer won’t prevent the taint of usury from attaching. There is no suggestion of any mistake of fact in this case. Dupree v. Virgil Coss Mortgage Co., 167 Ark. 18, 267 S.W. 586 (1924).

V

Arkansas Savings urges that even if this court finds Arkansas Savings did charge a usurious rate of interest, a judgment imposing a general forfeiture of principal and interest would be a gross injustice. It has been pointed out that vast sums of money may be involved in similar transactions and it frequently is suggested that the Arkansas usury law is archaic and not suited to modern business practices. Over the past quarter of a century this court has handed down many “usury” decisions and the law on this subject is fairly well defined. If this constitutional provision is to be changed, it must be done by the electorate, not this court. We see no equitable reason to reverse the Chancellor, reinstate the Arkansas Savings note and mortgage, and simply issue a caveat for the future.

VI

Although no other parties did, Arkansas Savings questioned the validity of the mortgage of Truman O’Neil. Since this decision eliminates any interest of Arkansas Savings in the peoperty, except for a lien for insurance and taxes, we need not reach the issue of the O’Neil mortgage.

* * *

Cross-Appeal

Mack Trucks and the Smiths correctly point out that where a loan contract is usurious, all indebtedness evidenced thereby is cancelled. The mortgage had a provision for Arkansas Savings to recover for taxes and insurance and the mortgage now is null and void. However, it was well within the powers of the Chancellor, even without the mortgage, to do equity and allow Arkansas Savings to recover for the taxes and insurance which were for the benefit of all of the parties and were paid to others.

# * *

As this court said in O’Brien v. Atlas Finance Co., 223 Ark. 176, 264 S.W. 2d 839 (1954), and repeated in Sosebee v. Boswell, 242 Ark. 396, 414 S.W. 2d 380 (1967), “If this transaction is not usurious, then any transaction can be dressed up so as not to constitute usury although it would be clear that it was merely a scheme to evade the usury laws”. Whether the S3,400.00 Arkansas Savings collected is labeled a service charge, commitment fee, takeout fee, origination fee, points, discount, or anything else, it is usury. The learned Chancellor is affirmed.

Fogleman and Hickman, JJ., not participating.

Special Justice Paul Sullins dissents.

Concurring Opinion on Rehearing delivered June 19, 1978

Carleton Harris, Chief Justice,

concurring. I agree thht the petition for rehearing should be denied, and that the original opinion was correct. I do think, however, that since this is a rather important case, affecting, as it does, various lending agencies, the court should, on this rehearing, go into a little further detail on the question of loan commitments. I am cognizant of the fact that it is the policy of the court not to pass on matters that are not strictly and precisely an issue in the litigation (although this has been done on numerous occasions as indicated by the many opinions that contain dicta). However, this present decision has apparently been disturbing to many of our financial institutions, who seem to be in a quandary as to whether, or when, a commitment to make a loan can validly and legally be made. That there are differences in the circumstances in Arkansas Savings & Loan Association v. Mack Trucks of Arkansas, et al, supra, and other instances which have involved what I would call “a true commitment fee,” is, at least to me, obvious, but 1 do not think 1 should express any view sihce my own particular ideas on the subject might not be in harmony with the majority of the court.

“One man’s views do not a precedent make,” and I certainly would not want any borrower or lender to rely, to any degree, on the opinion of one justice. Such a course would be, indeed, unwise.

But I emphasize that since hundreds of thousands of dollars are frequently involved in these loans, financial concerns, and lawyers who advise them, should have a clear precedent to follow in making their decisions.

To me, there are important questions in this field of loan-making, connected very closely with the case under discussion, which could have been clarified.

      For instance, as pointed out by the amicus curiae brief of Central Arkansas Bank Clering House Association, there is no indication of this court’s views where a lender contracts to make a loan available in the reasonably distant future at a set rate, and the customer pays a reasonable charge for the option to use such loan.


text:
    Richard L. FLEMING, Glenda F. FLEMING v. SOUTHLAND LIFE INSURANCE COMPANY, John F. MANGRUM, Trustee et al
    77-190
    564 S.W. 2d 216
    Opinion delivered April 17, 1978
    (In Banc)

      McMillan, Turner & McCorkle, by: H. W. McMillan, for appellants.

      Lookadoo, Gooch & Ashley; Lindsey J. Fairley; Bridges, Young, Matthews & Davis; and Thomas E. Sparks, for appellees.
   Frank J. Huckaba, Special Chief Justice.

Richard L. and Glenda F. Fleming owned several hundred acres of land in Dallas County, which were mortgaged to Pine Bluff Production Credit Association and Southland Life Insurance Company. Flemings defaulted, the mortgage holders sued, and a consent judgment and foreclosure Decree was entered on July 8, 1976. After the property was sold at foreclosure sale, but before the sale was confirmed, Flemings sought to satisfy the judgment and redeem the land. The Chancellor would not permit them to do so, confirmed the sale, and this Court must answer the question: How long did the Flemings have to pay the judgment and redeem their land? The Mortgages contained the usual waivers of the Statutory right of Redemption, and we consider only what equity of redemption the Flemings had.

A further recital of the facts, all of which occurred in 1976, is necessary. On September 15, 68 days after the foreclosure Decree, the lands were sold at public auction. Elbert L. Milton, one of the appellees, was high bidder. On September 29, Flemings petitioned the Trial Court to set the sale aside, alleging certain irregularities in the sale, and that if resold the property would sell for more. The Trial Court, on October 4, conducted a hearing on whether the sale should be confirmed, but deferred any decision giving attorneys time to brief the issue. Four days later, Flemings made a tender of money into the Court’s registry, and filed their Petition for Permission to Satisfy Judgment and Redeem Land from Sale. Actually, Glenn D. Lane, an apparent buyer from Flemings, made most if not all of the tender; and took and recorded a deed from Flemings while the motions were pending. On November 1, 1976, the Court confirmed the sale, and Flemings have appealed.

To reach our difficult decision in this case we must interpret the significance of the following paragraphs in the Court’s Decree of Foreclosure:

“(F) If the foregoing Judgments are not satisfied within 20 days, the Commissioner of this Court hereinafter named shall . . . sell to the highest bidder . . . all of the described property covered by the mortgages of Southland Life Insurance Company and of Pine Bluff Production Credit Assn.”
“(M) Upon confirmation of said sale all rights of redemption and any and all of the rights, title, interest and claim of the defendants and each of them in and to all of the above described property shall be forever barred.”

Appellants urge that the Court intended by the language in the second quoted paragraph to give them a right to pay the judgment and redeem the land after the judicial sale, at any time prior to confirmation. The Chancellor rejected this argument, and we agree with him.

It is significant that the Chancellor’s Decree provided that “If the foregoing Judgments are not satisfied within 20 days, the Commissioner . . . shall . . . sell to the highest bidder. . . ”. Similar language in the case of Bentley v. Parker, 257 Ark. 749, 525 S.W. 2d 640 (1975), was construed to mean that the mortgagor was given a certain number of days (10 in that case) from the date of foreclosure decree within which to redeem the property. The only logical or reasonable construction of this language, and its purpose, was to permit the mortgagor a period of 20 days after the decree to redeem the property.

We find that Paragraph (M) in the Decree providing that “Upon confirmation of said sale all rights of redemption and any and all rights, title, interest and claim of the defendants and each of them in and to all of the above-described properties shall be forever barred”, was a recital of the legal effect of confirmation and was not intended to extend the privilege of redemption beyond the 20-day period. If it was intended to extend redemption rights to any time short of confirmation, then the 20-day provision in the Chancellor’s decree was meaningless; and we do not feel that he intended a meaningless provision.

It is settled law that a judicial sale is not complete until confirmation. If, for example, confirmation of the sale is refused for a legitimate reason such as fraud, irregularity, or gross inadequacy in the sale price, it certainly would be within Chancellor’s discretion to permit redemption prior to resale. Thus, while the possibility of redemption is not forever barred until confirmation, this does not mean that there is an absolute right to redeem at any time prior to confirmation.

The Trial Court is vested with sound discretion with respect to confirmation of judicial sales and cannot capriciously set aside a sale to permit redemption. The Court also has the responsibility to protect the integrity of judicial sales to the end that bidders can have confidence that their legitimate high bid will be respected by the Court. In this case appellee Milton not only bid high and posted a substantial Bond; he also became a party to the suit, and subjected himself to the Orders of the Court. There was neither fraud, nor irregularity and the Chancellor made a finding, not here appealed, that the price bid by Milton was a fair price. It is difficult to see how Milton could have withdrawn his offer. It is also difficult to see how the Chancellor could have disregarded Milton’s bid, rejected the sale, and permitted a third party, Glenn D. Lane, to buy the property. It has been settled law in this state for many years that the Court will not reopen the sale for the purpose of permitting any person to tender more money for the property. Colonial and U.S. Mortgage Co. v. Sweet, 65 Ark. 152, 45 S.W. 60 (1898); George v. Cone, 77 Ark. 216, 91 S.W. 557 (1905); Polk v. Afflick, 168 Ark. 903, 271 S.W. 962 (1925).

Appellants rely heavily upon the case of Pope v. Wylds, 167 Ark. 40, 266 S.W. 458 (1924). In that case, and the case of Jermany v. Hartsell, 214 Ark. 407, 216 S.W. 2d 381 (1949), the foreclosure decrees contained wording to the effect that appellants’ title would be foreclosed and barred “upon the sale of said lands . . . and confirmation thereof. . . ”. When the decree is so worded, the sale is conditional, and mortgagor’s equity of redemption is not extinguished until confirmation. Such cases are not controlling under this decree which, we have found, allowed only 20 days for redemption after the foreclosure decree.

In the case of Bentley v. Parker, supra, we stated the matter in this language:

“Obviously the time for redemption must be left to the sound discretion of the trial Court. If the redemption is cut off before sale date, it tends to give credence to judicial sales and to prevent collusion between the mortgagors and unsuccessful bidders at the sale who have second thoughts on the value of the property. However, if the redemption is permitted at any time before confirmation of the sale, then there may be some lack of incentive for competitive bidding at the sale.”

This court has also stated:

“Judicial sales are not to be treated lightly. The Court should not reject a sale and refuse a confirmation for captious reasons, but only in the exercise of sound discretion. The Trial Court is vested with sound judicial discretion in these matters; and the appellate court, in reviewing the action of a trial court to see if there has been an abuse of discretion, does not substitute its own decision for that of the trial court, but merely reviews the case to see whether the decision was within the latitude of decisions which a judge or court could make in a case like the one being reviewed.” Robbins v. Guy, 244 Ark. 590, 426 S.W. 2d 393 (1968); Summars v. Wilson, 205 Ark. 923, 171 S.W. 2d 944 (1943).

We are unable to say the Trial Court abused his discretion in allowing mortgagors only 20 days within which to redeem the property, in interpreting his decree to so provide, and in confirming this sale.

Appellee mortgage holders have asked for $2,500.00 each as additional attorneys’ fees. While it is true that their lawyers could have requested fees of thousands of dollars more than they did, they agreed to fees of $3,500.00 each. They are not the first, and likely will not be the last, lawyers who agree to accept a certain fee to their subsequent displeasure. However, the mortgage holders had a vital interest in this appeal being affirmed. A reversal could have required them to re-pay the money into Court, and reinstate the loans on their books. One of the loans would have been three years in arrears, the other, two. Further, their prospect of early payment is clouded since Flemings (or Lane) withdrew the tender, being in excess of $400,000.00, from the registry of the Court. (Indeed, appellees made a strong argument that, by withdrawing the tender, appellants waived their right to appeal.) Therefore, for their services in connection with this appeal, we award the mortgage holders additional attorney fees of $1,500.00 each.

Affirmed.

Harris, C.J., and Fogi.eman and Holt, JJ., not participating.

Special Justice Leroy Froman joins in the opinion.


text:
    Tim FOLEY v. STATE of Arkansas
    CR 77-221
    565 S.W. 2d 128
    Opinion delivered April 24, 1978
    (Division I)
    [Rehearing denied May 30, 1978.]

      Patterson & Welch, by: Morgan E. Welch, for appellant.

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was found guilty of having unlawfully possessed and sold a controlled substance, phencycladine (which is used by veterinarians for tranquilizing horses). The jury returned a verdict of guilty and fixed Foley’s punishment at imprisonment for 5 years and a S3,000 fine.

According to the State’s proof an undercover officer, Gaylon Hutchinson, and a police informer, Steven Howerton, acted together in purchasing the drug from the appellant, for $60. Hutchinson testified at the trial, but Howerton did not appear as a witness. The appellant’s principal argument for reversal is that he was entitled either to a dismissal of the charge or to a continuance, because the prosecution did not produce Howerton as a witness at the trial or make him available for the taking of a pretrial deposition.

The appellant, in making this argument, relies upon cases holding that in certain circumstances the prosecution must disclose the identity of a confidential informer, so .’that the accused may be confronted by the witnesses against him. Roviaro v. United States, 353 U.S. 53 (1957); Hooper v. State, 257 Ark. 103, 514 S.W. 2d 394 (1974). In this case, however, the missing witness, Howerton, was not an unidentified confidental informer. Quite the opposite, he was the defendant Foley’s first cousin and contemporary; the two had lived together. According to the undisputed proof, the prosecution had no more control over Howerton than the defense had. The prosecutor testified that he had subpoenaed Howerton, that he desired Howerton’s presence at the trial, and that he did not know Howerton’s whereabouts. The defense, apart from stating that Howerton’s testimony was vital to proof of entrapment, made no proffer of what Howerton’s testimony would have been. There is no showing that the defense made any effort to subpoena Howerton when the opportunity was presented some time before the trial. There is simply no basis for saying that the prosecution somehow contrived to make Howerton unavailable as a witness. The argument is without merit.

It is also contended that the court should have allowed the defense to introduce a transcript of testimony given by Howerton in another trial, not involving this defendant. What the defense wanted to introduce was a statement by Howerton, in the course of his earlier testimony, that he and Foley did not have “a marihuana commercial market going last year.” We do not agree with the appellant’s argument that the parties “stipulated” at a pretrial hearing that the transcript might be introduced at the trial. The trial judge merely ruled that the transcript might become a part of the record of the pretrial hearing. Furthermore, at the very most the exclusion was harmless error, because Howcrlon's admission that he did not have a marihuana commercial market going with Foley had no relevance to the charge that holey had sold pheneycladine, an accusation that docs not involve marihuana in any way.

Affirmed.

We agree.

Harris, G.J., and Fugleman and Horr, JJ.