author: Richard B. Adkisson, Chief Justice. Robert H. Dudley, Justice,

text:
    81-68
    SEQUOYAH STATE BANK v. UNION NATIONAL BANK
    621 S.W. 2d 683
    Supreme Court of Arkansas
    Opinion delivered October 5, 1981
    [Rehearing denied November 9, 1982.]

      Bryan & Fitzhugh, for appellant.

      Smith ¿r Nixon, by: IT. R. Nixon, Jr., for appellee.
   Richard B. Adkisson, Chief Justice.

The only issue in this case is whether Union Bank by its own initiative can stop payment on a personal money order it had issued in exchange for a hot check and, thereby, cause Sequoyah Bank, a holder in due course, to bear the loss. Under these circumstances the loss must be borne by Union Bank which issued the negotiable instrument to be circulated in commerce.

We do not decide the question of whether the purchaser may stop payment, but we do hold that after the sale of a personal money order, the issuing bank cannot stop payment on the instrument.

A personal money order is issued with unfilled blanks for the name of the payee, the date, and the signature of the purchaser. Only the amount is filled out at the time of issue, usually by checkwriter impression as was done in this case.

The Uniform Commercial Code apparently did not directly contemplate the use of money orders and made no specific provision for them. Mirabile v. Udoh, 399 N. Y.S. 2d 869 (1977). It was recognized in Mirabile that it is the custom and practice of the business community to accept personal money orders as a pledge of the issuing bank’s credit. We may consider this custom and practice in construing the legal effect of such instruments. See Ark. Stat. Ann. § 85-1-103 (Add. 1961).

Appellee relies on the cases of Garden Check Cashing Service, Inc. v. First National City Bank, 25 A.D. 2d 137, 267 N.Y.S. 2d 698 (1966), aff’d. 18 N.Y. 2d 941, 223 N.E. 2d 566, 277 N.Y.S. 2d 141 (1966) and Krom v. Chemical Bank New York Trust Co., 313 N.Y.S. 2d 810 (1970), rev’d. 329 N.Y.S. 2d 91 (A.D. 1972) which held that a purchaser of a personal money order may stop payment on it. However, the only cited case to specifically address the issue of whether the issuing bank, on its own initiative, may stop payment on a personal money order is Rose Check Cashing Service, Inc. v. Chemical Bank N.Y. Trust Co., 244 N.Y.S. 2d 474, 477 (1963). In holding that the issuing bank could not stop payment and therefore must suffer the loss the court stated:

All of these differences between the instrument at issue and an ordinary check would seem to indicate that the bank would honor the order to pay no matter who signed the face of the instrument, assuming of course an otherwise valid negotiation of the instrument.
In the instrument in suit, the drawer purchases the instrument from the bank. The transaction is in the nature of a sale. No deposit is created. The funds to pay the instrument, immediately come within the bank’s exclusive control and ownership. . . .
The bank’s contention that the instrument is a check is inconsistent with its own acts. The bank (drawee) stamped “Stop Payment” on the instrument in suit on its own order. Nowhere in the Negotiable Instruments Law is there any provision that a drawee [bank] may “Stop Payment” of a check unless ordered to do so by the drawer.

Appellee also denies liability on the instrument based upon Ark. Stat. Ann. § 85-3-401 (1) which states that “No person is liable on an instrument unless his signature appears thereon.” Subdivision (2) of this same section provides that a signature may be “any work or mark used in lieu of a written signature.” The authenticity of the instrument involved here is not in question. The issuance of the money order with the bank’s printed name evidences the appellee’s intent to be bound thereby. Mirabile, supra.

Appellee also relies on Ark. Stat. Ann. § 85-3-409 for the proposition that it is not liable on the personal money order since it did not accept it. In our opinion, however, the appellee accepted the instrument in advance by the act of its issuance. Rose Check Cashing Service, Inc. v. Chemical Bank New York Trust Co., 252 N.Y.S. 2d 100 (1964).

The personal money order constituted an obligation of Union from the moment of its sale and issuance. The fact that Union was frustrated in retaining the funds because instead of cash it accepted a check drawn on insufficient funds is no reason to hold otherwise. We note by analogy that the Uniform Commercial Code on sales, Ark. Stat. Ann. § 85-2-403 (1) (b), provides that a purchaser of goods, who takes delivery in exchange for a check which is later dishonored, transfers good title to the goods.

Union placed the personal money order in commerce for a consideration it accepted as adequate and was, thereafter, liable on it. Banks are not allowed to stop payment on their depositor’s checks and certainly should not be allowed to stop payment on personal money orders. See Note, PERSONAL MONEY ORDERS AND TELLER’S CHECKS: MA VERICKS UNDER THE UCC, 67 Colum. L. Rev. 524 (1967).

Reversed.

Holt, Dudley, and Hays, JJ., dissent.

Robert H. Dudley, Justice,

Ark. Stat. Ann. § 85-3-104 (1) (a) (Add. 1961) requires that a writing be signed by the drawer or maker in order to be negotiable. Any item which is an order to pay is considered a “draft” and any draft drawn on a bank and payable on demand is a “check.” § 85-3-104 (2) (a), (b). Since the only signature on a personal money order is that of the purchaser, since the instrument takes the form of an order to pay, and since it is drawn on a bank and payable on demand, it is clearly within the classification of a check. The absence of the bank’s signature as a “maker” and the absence of any express “undertaking” to pay by the bank, § 85-3-102 (1) (c) and § 85-3-104 (2) (d) preclude a finding that the instrument is a note. Aside from “draft,” “check” and “note” the only other form of negotiable instrument recognized by the Uniform Commercial Code is a “certificate of deposit” and that requires an acknowledgement that the bank will repay it. § 85-3-104 (2) (c). Under these code provisions a personal money order must be classified as a check. There is no other code classification of negotiable commercial paper. § 85-3-104. For the sake of clarity in the law of commercial paper this personal money order should be classified as a check.

However, the matter of classification is not nearly as important as the issue of liability. No authorized representative of appellee bank signed this check. Section 85-3-401 states: “No person is liable on an instrument unless his signature appears thereon.” Section 85-3-409 (1) states that a check or other draft is not an assignment of funds held by the drawee (appellee Union Bank) and the drawee is not liable until it accepts the check or draft. Appellee did not accept this instrument. It stopped payment. The language of these statutes, a part of the Uniform Commercial Code, is unmistakable.

The majority opinion holds:

The personal money order constituted an obligation of Union from the moment of its sale and issuance.

I respectfully submit that statement is supported by absolutely no authority and it creates an unnecessary legal quagmire. Assume that a purchaser of a personal money order has not filled in the name of the payee or has not signed the check and it is lost or stolen. The purchaser then wants to stop payment before it is negotiated to a third party. The majority has stated that it was an obligation of the bank from the moment of sale and issuance. Fairness and logic dictate that the purchaser should not be allowed to stop payment and leave the bank liable. Yet, § 85-4-403 (1) provides:

Customer’s right to stop payment — Burden of proof of loss. A customer may by order to his bank stop payment of any item payable for his account but the order must be received at such time and in such manner as to afford the bank a reasonable opportunity to act on it prior to any action by the bank with respect to the item described in Section 4-303.

Comment 4 to this statute makes it abundantly clear that personal money orders are intended to be covered by this broad language.

One of the three explanations given for the holding is:

The issuance of the money order with the bank’s printed name evidences the appellee’s intent to be bound thereby.

That notion will echo because the name of the drawee bank is printed on every ordinary check in circulation.

The other two explanations are that banks should not be allowed to stop payment and business custom. Both explanations are dead letters. Assume, for the sake of argument only, that banks should not be allowed to stop payment. That occurrence takes place after the sale and issuance of the instrument. The majority has held that liability attached upon issuance. Therefore this subsequent event logically cannot have any effect on liability. It very simply is not a reason for a decision that liability attached at the time of issuance. Business custom is not proven. There is not one single word in the transcript or abstract about business custom. Even if this defense had been proven it would be an estoppel defense, or a defense which accrues after the sale and, once again, it would not be a reason for a decision that liability attached at the time of issuance.

The master purpose of the Uniform Commercial Code is to clarify the law governing commercial transactions. The tragedy of this case is that both the purpose and the Code are emaciated for no reason.

I dissent.

I am authorized to state that Mr. Justice Holt and Mr. Justice Hays join in this opinion.


source: Caselaw Access Project

author: Richard B. Adkisson, Chief Justice.

license: Public Domain

text:
    Kenneth VANSANDT v. STATE of Arkansas
    CR 81-92
    621 S.W. 2d 681
    Supreme Court of Arkansas
    Opinion delivered October 5, 1981

      Jenkins & Berry, by: Russell D. Berry, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

On September 12, 1980, appellant, Kenneth Vansandt, was convicted in Arkansas County Circuit Court of possession of a firearm by a felon and sentenced to five years imprisonment. Prior to trial Vansandt filed a motion to dismiss asserting that he was not accorded a speedy trial under Art. 8, Ark. Rules Crim. Proc., Ark. Stat. Ann., Vol. 4A (Repl. 1977); he alleged that he was not brought to trial within three terms of court as required by Rule 28.1 (b). We agree.

The trial court acknowledged that appellant’s trial was held 39 days after three full terms of court had passed, but it found that there was an excludable period of 43 days under Rule 28.3 which permits exclusions for periods of necessary delay. It is not clear from the record which part of this rule the trial court relied upon in finding the excludable period, but the court did specify the excludable period began on March 28,1980, when appellant filed his motion to suppress evidence and ended on May 9, when the hearing on this motion was actually heard by the court. This hearing was originally set for April 4, but was continued due to the unavailability of a key State witness.

The question presented is whether the trial court correctly excluded the 43-day period from the computation of defendant’s right to a speedy trial under our Rules of Criminal Procedure. The burden is on the State to prove excludable periods of time under Rule 28.3. State v. Lewis, 268 Ark. 359, 596 S.W. 2d 697 (1980). The State clearly did not meet his burden since the record reflects the witness for the hearing was unavailable for only one day. The State’s only argument to support the 43-day delay was a statement that its witness, Deputy Ellenburg, “had been admitted to the hospital [on the day of the hearing] for an emergency situation. He had to stay there for a good period of time. I don’t know the exact time.” When asked if it was in excess of 30 days, the prosecutor stated, “I don’t know.” The defense attorney agreed that the witness was hospitalized on the day of the hearing, but refused to agree that his illness continued more than a day. The defense attorney then suggested that the State subpoena Deputy Ellenburg and base its argument for a longer excludable period upon the length of his stay in the hospital; but the State did not do so.

Reversed and dismissed.


author: George Rose Smith, Justice.

text:
    David WILLIAMS v. STATE of Arkansas
    CR 80-217
    621 S.W. 2d 686
    Supreme Court of Arkansas
    Opinion delivered October 5, 1981

      E. Alvin Schay, State Appellate Public Defender, and James Davis, Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

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

The appellant, David Williams, was charged with capital murder, the information alleging that on July 8, 1979, David Williams, while committing burglary and aggravated robbery, premeditatedly and deliberately caused the death of Ruby Lynn Williams (a man apparently not related to the defendant David Williams). The jury imposed the death penalty. Several points for reversal are argued, not all of which require discussion.

On the night of the murder Ruby Lynn was spending the night at the home of Doris Soloman, in the Mandeville community in Miller county. Several years earlier Doris had lived with the defendant. There were other persons at the house that evening. At about 8:30 p.m. an argument arose between Doris and David, the defendant. As a result Doris and Ruby Lynn persuaded David to leave and drove him to the house where he was staying in Texarkana.

We need not detail the proof of the murder, as the sufficiency of the evidence is not questioned. There was no eyewitness to the actual killing, but the State’s proof showed that after midnight David returned to Doris’s house, gained entry by cutting a screen, and killed Ruby Lynn by stabbing him 18 times as he lay in bed. David also stabbed Doris in the arm and back, but she escaped to the house next door. The police were called. When they arrested David at about daylight he was in bed asleep, wearing bloody shorts. His clothes nearby were heavily soaked with blood. In his trouser pockets the police found David’s billfold and also Ruby Lynn’s billfold containing three one-hundred-dollar bills. David had been released from the penitentiary a few weeks earlier. His parole officer testified that at about 4:15 a.m. David telephoned and said that he had cut Doris Soloman and Ruby Williams. He wanted the officer to call the hospital and find out about Ruby’s condition.

The appellant’s first assignment of error must be sustained. The capital murder statute, in enumerating the aggravating circumstances to be considered by the jury, lists as one such circumstance the fact that “the person previously committed another felony an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person.” Ark. Stat. Ann. § 41-1303 (Repl. 1977). Over the defendant’s objection the court allowed the jury to consider a single previous conviction, which was for burglary with no details about the offense being supplied. The jury found the existence of the aggravating circumstance just mentioned, plus two others: the creation of a great risk of death to a person other than the victim of the homicide and the commission of the murder for pecuniary gain. No mitigating circumstances were found.

Under the Criminal Code a person commits burglary if he enters or remains unlawfully in another person’s occupiable structure with the purpose of committing therein an offense punishable by imprisonment. § 41-2002. Thus burglary can be committed by an unlawful entry into a vacant house, with no possibility of violence or injury to anyone. The jury had no substantial basis for finding this particular aggravating circumstance, which should not have been submitted without proper supporting proof. See our opinion, delivered after the trial of the case at bar, in Miller v. State, 269 Ark. 341, 605 S.W. 2d 430 (1980), cert. den. 450 U.S. 1035 (1981).

We cannot, as the State urges us to do, hold the error to be harmless on the theory that the jury found two other aggravating circumstances and no mitigating ones. The jury must find not only that the aggravation outweighs the mitigation but also that the aggravating circumstances “justify a sentence of death beyond a reasonable doubt.” § 41-1302 (1) (c). In a death case we are not in a position to speculate about what the jury might have done if it had found only two aggravating circumstances instead of three. Hence, following the practice adopted in Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977), cert. den. 434 U.S. 894 (1977), we direct that the sentence be reduced to life imprisonment without parole unless the Attorney General requests within 17 days that the case be remanded for a new trial.

We find no merit in the appellant’s second point, that the trial judge unduly restricted defense counsel during the voir dire examination of the veniremen. This is a matter lying primarily within the trial judge’s discretion, Van Cleave v. State, 268 Ark. 514, 598 S.W. 2d 65 (1980), and counsel have not pinpointed any particular instance in which the trial judge’s discretion was manifestly abused.

The appellant’s fifth point concerns an inquiry made by the jury during its deliberations about the possible punishment. The jurors apparently wanted to know if they could find that the aggravating circumstances outweighed the mitigating ones and nevertheless impose only a life sentence. The trial judge told the jury, after a discussion with the attorneys, that he could not answer the question. The jury should have been told that even though the aggravating circumstances were found to outweigh the mitigating ones, a life sentence could still be imposed. That error, however, as well as the remaining points for reversal, does not necessitate a new trial in view of our having set aside the death sentence.

The judgment is conditionally modified, as stated.


author: Frank Holt, Justice.

text:
    Albert BROWNING v. STATE of Arkansas
    CR 80-263
    621 S.W. 2d 688
    Supreme Court of Arkansas
    Opinion delivered October 5, 1981

      Stevan B. Dalrymple, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellant guilty of rape (Ark. Stat. Ann. § 41-1803 [Repl. 1977]) and assessed his punishment at 50 years imprisonment. Through his court appointed counsel, appellant first asserts for reversal that the trial court erred in allowing the state’s attorney to use a codefendant’s prior statement which was not made available to appellant’s counsel before trial as is required by the pertinent rules of discovery, Ark. Rules of Criminal Procedure, Rules 17.1 and 19.2, subject to the provisions of Rule 19.7.

Appellant’s codefendant gave a police officer, five months before trial, a statement cross-implicating the appellant. It was understood between the state and the defense counsel there was no need to file a formal discovery motion since the state had an open file policy by furnishing its entire file to defense counsel. When the state attempted to cross-examine appellant’s codefendant on the basis of the cross-implicating statement he had made to the police officer, a timely objection to use of the statement, due to failure to comply with the rules of discovery, was raised by counsel for the codefendant. The court later acknowledged that counsel for the appellant joined in this objection. The trial court refused to allow the codefendant’s signed statement into evidence due to the state’s attorney’s failure to comply with the discovery rules. However, he allowed the prosecutor to use the cross-implicating statement to impeach the testimony of the codefendant and then, in rebuttal, question the officer, who had taken the undisclosed statement, about its contents. It is undisputed that appellant’s counsel and his codefendant’s counsel were unaware of the statement until its attempted use during trial. Also, the state’s attorney had only learned of the statement the previous day and was under the mistaken impression that the defense counsel was aware of it.

Where the police have an undisclosed statement, as here, we have held that knowledge of the statement is imputed to the prosecuting attorney and that the Rules of Criminal Procedure, Rules 17.1 and 19.2, require a disclosure in order to give meaning to the purpose of those rules. Williams v. State, 267 Ark. 527, 593 S.W. 2d 8 (1979); Lacy v. State, 272 Ark. 333, 614 S.W. 2d 235 (1981); and Earl v. State, 272 Ark. 5, 612 S.W. 2d 98 (1981). Here, as indicated, the court excluded the signed cross-implicating statement. However, he permitted the codefendant to be questioned about it and, upon rebuttal, allowed the officer, who took the statement, to testify about it for impeachment purposes. Since a timely objection was made, we hold the court should not have permitted the use of the undisclosed statement for any purpose.

Appellant next asserts that since the state’s information charged the appellant with rape in violation of § 41-1803 by engaging in sexual intercourse by forcible compulsion, evidence by the prosecution should be restricted to that allegation and not be permitted the “mention of or reference to any allegation regarding deviate sexual activity.” There is no merit to this argument. Section 41-1803 reads:

A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion ....

The information sufficiently complied with Ark. Stat. Ann. § 43-1006 (Repl. 1977) which requires that the language of the indictment must be certain as to the title of the prosecution, the name of the court in which the indictment is presented, and the names of the parties, subject, of course, to a bill of particulars. Furthermore, we said in Butler v. State, 261 Ark. 369, 549 S.W. 2d 65 (1977), that where the entire sequence of events is such an inseparate whole, then the state is entitled to prove the entire criminal episode.

Neither do we agree with appellant’s contention that the court erred in refusing his requested instruction on consent which contained language with respect to “the duty” of the woman upon being assaulted. A sufficient answer is that the court, without objection, gave the applicable parts of AMCI § 1803 which defines rape. This instruction is in accordance with our per curiam, order of January 29, 1979, 264 Ark. 967, which requires the use of AMCI unless the trial court determines the instruction does not accurately state the law. In that event the court must state its reason for refusing the instruction. Wharton v. Bray, 250 Ark. 127, 464 S.W. 2d 554 (1971).

For the reason indicated, we reverse and remand.


text:
    Eddie L. THOMERSON v. STATE of Arkansas
    CR 81-54
    621 S.W. 2d 690
    Supreme Court of Arkansas
    Opinion delivered October 5, 1981

      William H. Craig, for appellant.

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

A jury found appellant guilty of first degree murder and assessed his punishment at life imprisonment. Appellant first asserts that the trial court erred in denying his motion for a three weeks continuance for failure of the state to provide discovery, citing Ark. Rules of Crim. Proc., Rules 17 and 19.

In July, 1980, present counsel, upon being employed as appellant’s substitute counsel, filed a written motion for discovery asking the court to require the prosecuting attorney to disclose and produce information and material as required by Rule 17.1. Rule 17.1 (a)(v), subject to Rule 19.4, states that the prosecutor shall disclose to defense counsel “any books, papers, documents, photographs or tangible objects which the prosecuting attorney intends to use in any hearing or at trial or which were obtained from or belong to the defendant.” Appellant argues that the prosecuting attorney failed to meet his obligations with respect to discovery and disclosure, which resulted in appellant being unable to examine certain objects seized at the scene of the crime and sent to the state crime lab for testing. The record indicates that the tests on these objects about which he complains were never made. Appellant’s counsel asserts that until October, 1980, he had made numerous trips to the prosecutor’s office in unsuccessful efforts to review his file. However, it appears undisputed that as of October, 1980, or about three months before trial, the deputy, who was then assigned to try the case, was cooperative and thereafter made the file available. Also, the state, in a written response to appellant’s motion for continuance the day before trial, stated that appellant had been supplied with the file which included the autopsy report, a table of contents of the complete police file, a list of witnesses along with typewritten copies of their statements and information given by witnesses, including police officers, a complete list of the items of evidence and the chain of custody, a copy of the rights form and confession, copies of diagrams of the crime scene, a copy of the state hospital mental examination, and a copy of the state crime lab report, which contained results of the only tests made. The state further responded that the appellant’s counsel was aware that he could have inspected the physical evidence at any time after he was retained in July, 1980, up until the trial date in January, 1981. As indicated, his present motion for a three weeks continuance was made the day before trial. The case had been continued twice on appellant’s motions, once after present counsel was retained.

It is true that the prosecuting attorney’s obligations of disclosure under Rule 17.1, subject to Rule 19.4, extend to material and information within the possession and control of members of his staff or others who have participated in the investigation or evaluation of the case and regularly report or have reported to the prosecutor. See Commentary to Rule 17.1; Dupree v. State, 271 Ark. 50, 607 S.W. 2d 356 (1980); and Lacy v. State, 272 Ark. 333, 614 S.W. 2d 235 (1981). Appellant speculates here, however, that if tests had been made on various tangible items, they might be exculpatory in nature. While this might be true, appellant has cited no authority imposing a duty on the state to make tests on all materials seized. A defendant in a criminal case cannot rely upon discovery as a total substitute for his own investigation. Dupree v. State, supra. Here it appears the prosecutor made a sufficient disclosure to the appellant.

Rule 27.3 authorizes the court to grant a continuance on a showing of good cause, taking into consideration the request or consent of counsel and the public interest. It is well settled that the trial court has wide discretion in granting a continuance, and its judgment will not be reversed absent a clear abuse of discretion. French v. State, 271 Ark. 455, 609 S.W. 2d 42 (1980); Figeroa v. State, 244 Ark. 457, 425 S.W. 2d 576 (1968). Here, we find no abuse of discretion.

Appellant next asserts that the court abused its discretion in permitting certain photographs and items of clothing, which he does not specify, into evidence over appellant’s objection. His only argument on this point is that there was a failure by the state to provide discovery. It appears the photographs were in the police file, which was available to appellant. Also, at trial appellant’s counsel agreed that he had seen the photographs, although briefly. As previously discussed, the state represented to the court, without contradiction, that the appellant’s counsel could have inspected the physical evidence any time he desired. Appellant has not demonstrated any abuse of discretion by the trial court.

Neither can we agree that the trial court erred in denying his motion to suppress his confession on the grounds that he had not been properly advised of his right to counsel. After conducting a Denno hearing, the trial court ruled the confession admissible. Appellant correctly contends there is a presumption that a custodial confession is involuntary, and the prosecutor bears a heavy burden to show such a statement was voluntarily, freely, and understanding^ given. Tatum v. State, 266 Ark. 506, 585 S.W. 2d 957 (1979).

Here the state introduced a copy of the Miranda warning signed by appellant. In pertinent part the warning states: “I have the right... to talk with an attorney, either retained by me or appointed by the court.. . before giving a statement.” Appellant contends only that this quoted language is insufficient to inform him of his right to have an attorney “free of charge” if he cannot afford one, citing Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). In Hays v. State, 269 Ark. 47, 598 S.W. 2d 91 (1980), we found that a written statement identical to the one used here and signed by appellant comports with the requirements of Miranda. However, the specific deficiency asserted here was not in issue there. In Tasby v. U.S., 451 F. 2d 394 (8th Cir. 1971), the appellant contended that the Miranda warning was inadequate because it provided that an attorney would be appointed “at the proper time.” The court said: “This statement, even though a slight deviation from the Miranda prescription, does not negate the over-all effectiveness of the warning.” On appeal, in ascertaining the voluntariness of a confession, we make an independent determination based upon the totality of the circumstances, resolving all doubts in favor of individual rights and constitutional safeguards, and, after doing so, we affirm the trial court’s finding unless clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974); and Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977).

Here, the appellant was approximately 36 years of age with a twelfth grade education. He was taken into custody as a suspect about 8:30 a.m., advised of his Miranda rights and signed a waiver. Two hours later, following further investigation, he was questioned after his constitutional rights were reiterated to him. There is no evidence that he was incapacitated or overreached in any manner. In fact, the voluntariness of the confession is not questioned other than the asserted deficiency. Although it would be a better practice to acquaint a defendant that counsel would be appointed by the court without cost to him, here, when we examine the totality of the circumstances surrounding the waiver and the confession, the lack of the words “free of charge,” or similar words, does not appear to negate the overall effectiveness of the twice given warning or the voluntariness of the confession. Therefore, we cannot say the trial court’s finding that the confession was voluntary is clearly against the preponderance of the evidence.

Appellant’s final contention for reversal is that the evidence is insufficient and, therefore, the court erred in denying his motion for a directed verdict. A directed verdict is proper only when no fact issue exists and on appeal we review the evidence in the light most favorable to appellee and affirm if there is any substantial evidence to support the verdict. Harris v. State, 262 Ark. 680, 561 S.W. 2d 69 (1978). According to appellant’s confession, which was admissible, he was living with the decedent. When he returned home from work the evening of the alleged murder, he observed a “dude” leaving the house. He got mad and started hitting the victim with his fists. They fought for “almost an hour or so.” “She finally stopped moving ...” When he “saw she was dead, I covered her with a curtain.” He spent the night in a car next door. When taken into custody the next morning, he was outside the house at the scene of the crime. The doctor, who conducted the autopsy, testified that the victim’s death was caused by multiple wounds to the head associated with strangulation. She, also, suffered burns (apparently from a heater) and other wounds about her body. The state adduced evidence which corroborated appellant’s admission that he was at his residence that evening. There appeared to be blood on his clothing and, also, blood underneath his fingernails. It does not appear the victim was armed in any manner.

A confession will warrant a conviction when accompanied by other proof that the alleged offense was committed. Ark. Stat. Ann. § 43-2115 (Repl. 1977); Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311 (1969); and Paschal v. State, 243 Ark. 329, 420 S.W. 2d 73 (1967). Here, when we consider the evidence most favorable to the appellee, as we must do on appeal, we are of the view there is ample substantial evidence to support the verdict.

Pursuant to the requirements of Ark. Stat. Ann. § 43-2725 (Repl. 1977), Rule 36.24 of the Rules of Criminal Procedure, and Rule 11 (f) of the Rules of the Supreme Court, we have reviewed the record and all objections and find no prejudicial error.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Antoinette R. BACHMAN v. David S. BACHMAN
    81-71
    621 S.W. 2d 701
    Supreme Court of Arkansas
    Opinion delivered October 5, 1981

      Davidson, Plastiras, Horne, Hollingsworth ir Arnold, P.A., by: Cyril Hollingsworth, for appellant.

      Laws ir Swaim, P.A., by: Ike Allen Laws, Jr., for appellee.
   Robert H. Dudley, Justice.

This divorce case involves the issues of venue and division of marital property. The parties moved to Arkansas in 1965 and since then have been domiciled here. There home was located in Russellville in Pope County. Their marriage reached the breaking point and on numerous occasions they discussed divorce. On April 16, 1980, appellee, David Bachman, made arrangements, unknown to his wife, to rent an apartment in Dardanelle, which is in Yell County and also made arrangements to have some movers transfer his furniture to that apartment upon notice. On Sunday, April 20, the parties had a heated argument and they agreed that Antoinette Bachman would file for the divorce. She asked appellee to move out of the home but he refused. On Wednesday, April 23, he left their home around 8:00 a.m. ostensibly to go to work. Instead of going to work he called his attorney and the movers. They moved some of his household furnishings four miles to the apartment in Dardanelle. At 10:00 a.m. he filed suit for divorce in Yell County, which is in a different judicial district from Pope County. Appellee, a physician and surgeon, continues to practice medicine at the same clinic in Russellville. He intends to remain a resident of Yell County and has contracted to buy a home there. There is very little dispute about the facts and the venue issue was timely raised. The Chancellor held that appellee had established residence in Yell County, and we affirm.

Among our divorce statutes, Ark. Stat. Ann., Title 34, Chapter 12 (Repl. 1962 and Supp. 1981), there are two separate residence statutes. One deals with jurisdiction and the other deals with venue. The jurisdictional residency statute, § 34-1208, requires a waiting period by one party or the other for sixty days before the commencement of the action and three full months before the granting of the decree. Residence in that statute is defined in § 34-1208.1. This jurisdictional statute was complied with as the parties have lived here for fifteen years.

The second residency statute, the venue statute, is the one at issue in this case. The proper county of venue is where the complainant resides. § 34-1204. We have interpreted this venue statute to mean domicile. Smith v. Smith, 219 Ark. 876, 245 S.W. 2d 207 (1952). No particular length of time is required for the establishment of residence, pursuant to the venue statute, but there must be actual presence coinciding with the intent to make it a permanent residence. Moon v. Moon, 265 Ark. 310, 578 S.W. 2d 203 (1979). The trial court found these two elements existed at the time of filing the complaint. In determining the sufficiency of evidence as to venue on appeal we review the proof in the light most favorable to the appellee, New York Life Ins. Co. v. Weeks, 201 Ark. 1160, 148 S.W. 2d 330 (1941), and findings of fact will not be set aside unless clearly erroneous. Rule 52 of Rules of Civil Procedure, Ark. Stat. Ann. Vol. 3A (Repl. 1979). Viewing the evidence in that light we cannot say that the holding of the chancellor was clearly erroneous and we affirm the holding that venue existed in Yell County.

David Bachman was granted a divorce in Yell County. Appellant appeals from a number of specific rulings which were made in the division of property. We reverse and remand on one of those points and affirm the others.

A part of the assets accumulated during the marriage consists of appellee’s interests in a profit-sharing trust agreement and in a money-purchase pension plan. The trust and pension plan are owned by a medical professional association in which appellee is a stockholder. The sole purpose of this profit-sharing trust is to enable the employees to share in the profits of the professional association. A participating employee has a vested interest in the plan, which is now fully distributive if an employee leaves the professional association and upon the occurrence of other contingencies. The trustee of the plan can purchase insurance contracts and appellee has $12,000 of cash surrender value in a whole-life policy owned by the plan. The profit-sharing trust can make loans to participating employees. Similarly, the money-purchase pension plan provides that a participating employee has present vested interests which can be paid out upon the occurrence of certain events.

In Fenney v. Fenney, 259 Ark. 858, 537 S.W. 2d 367 (1976), we held that military retirement pay was not personal property under the property division statute then in effect, § 34-1214 (Repl. 1962). In Knopf v. Knopf, 264 Ark. 946, 576 S.W. 2d 193 (1979), we held that railroad retirement funds were not divisible under the same statute. The general property division statute now in effect, § 34-1214 (Repl. 1962 and Supp. 1981), or Act 705 of 1979 as amended, defines marital property as all property acquired by either spouse subsequent to the marriage. See Warren v. Warren, 273 Ark. 528, 623 S.W. 2d 813 (1981). In Paulsen v. Paulsen, 269 Ark. 523, 601 S.W. 2d 873 (1980), holding that military retirement pay was not marital property, we stated:

Military retirement pay is not a fixed and tangible asset such as a vested pension or profit-sharing plan that may be collected in a lump sum. Rather, it terminates at the death and has no loan, surrender or redemption value. We agree with the decision of the trial court that military retirement pay is not marital property as contemplated by Act 705 of 1979.

In this case the profit-sharing trust agreement and the money-purchase pension plan have accumulated during the marriage and are marital property. There is nothing speculative or uncertain about the amount of money that appellee could have drawn out on the date of divorce. It belongs to him now, and if he wished, he could withdraw from the professional association and withdraw the money he has accumulated.

The Chancellor made an alternative ruling that, even if the trust and pension plan are marital property, appellant is not entitled to receive any of the proceeds from appellee’s vested interests. The applicable section of § 34-1214, the marital property statute, provided in 1980:

Division of Property. (A) At the time a divorce decree is entered:

(1) all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable, in which event the court shall make some other division that the court deems equitable taking into consideration (1) the length of the marriage; (2) age, health and station in life of the parties; (3) occupation of the parties; (4) amount and sources of income; (5) vocational skills; (6) employability; (7) estate, liabilities and needs of each party and opportunity of each for further acquisition of capital assets and income; (8) contribution of each party in acquisition, preservation or appreciation of marital property, including services as a homemaker. ***

A comparative analysis of the statute and the facts of this case is as follows: (1) The parties were married fifteen years. (2) There is no testimony about the health of the parties. At the time of the divorce appellant was 41 and appellee was 57. (3) Appellee is a practicing physician and surgeon and appellant is a non-practicing nurse. (4) and (5) He earns approximately $82,000 per year while she has no earnings. (6) He is employed by a professional association and she is employable as a nurse. (7) All of the rest of the substantial property has been divided. (8) His work has produced this property, but it is undisputed that he wanted her to remain in the home. She turned down employment because of his desire that she be a homemaker and active in the community. Her services as a homemaker are to be taken into consideration in determining the contribution of each party.

Upon analysis, we hold that the Chancellor’s ruling that appellant was not entitled to any part of this marital property was clearly erroneous. We reverse and hold that she is entitled to one-half of appellee’s vested interest both in the trust and in the pension plan which was, on the date of divorce, fully distributive to appellee upon leaving the professional association. The record does not contain this figure and appellant asks one-half ownership of the trust and pension plan. That proposal could be extremely unfair as appellant could then participate in the profits of the professional association earned after the divorce. We have concluded that this case must be reversed and remanded for the trial court to determine this amount and then award it to appellant. In exceptional cases this court may remand an equity case for additional proof if that is necessary to achieve equity. Arnett v. Lillard, 247 Ark. 931, 448 S.W. 2d 626 (1970).

Appellant urges other issues but we find no reversible error on those points. It would unduly lengthen this opinion to discuss each of them in detail and there would be no real benefit to the litigants, the bench or the bar.

Reversed and remanded as instructed.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Charles W. COUCH v. STATE of Arkansas
    CR 80-194
    621 S.W. 2d 694
    Supreme Court of Arkansas
    Opinion delivered October 5, 1981

      E. Alvin Sc hay, State Appellate Public Defender, by: Matthew Wood Fleming, Deputy Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant, Charles W. Couch, was charged with capital murder and attempt to commit first-degree murder. Both his plea and his defense at trial were that he was not guilty by reason of mental disease or defect. The uncontradicted proof revealed that on the evening of July 29, 1979, in one criminal episode on East Huntsville Road in Fayetteville, appellant shot and killed his estranged wife, Judy Wright Couch; shot and critically wounded Judy Couch’s cousin, Brenda Lee Jones; and shot and killed Miss Jones’ suitor, Larry Kilpatrick. Immediately afterwards, appellant shot himself in an attempted suicide. The jury found appellant guilty on both charges. He was sentenced to life imprisonment without parole for capital murder and twenty years to be served consecutively for the attempt to commit first-degree murder. We affirm.

The appellant’s first assignment of error involves the instructions to the j ury. In instructing on capital murder the trial judge gave instructions on capital murder, murder in the second degree and manslaughter. A requested instruction on murder in the first degree was refused.

The pertinent sections of the capital murder statute, Ark. Stat. Ann. § 41-1501 (Repl. 1977) provide:

(1) A person commits capital murder if: . . .
(c) with the premeditated and deliberated purpose of causing the death of any person, he causes the death of two (2) or more persons in the course of the same criminal episode . . . [Emphasis supplied.]

The applicable sections of the first-degree murder statute, Ark. Stat. Ann. § 41-1502 (Repl. 1977) provide:

(1) A person commits murder in the first degree if:... (b) with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person. [Emphasis supplied.]

In the context of the case before us capital murder is premeditatedly and deliberately causing the death of two persons, while first degree murder is premeditatedly and deliberately causing the death of one person.

The questions for the jury were whether appellant killed two people in one criminal episode and whether the shooting was the irrational act of one who was mentally ill to the degree of legal irresponsibility. It is uncontradicted that appellant killed two people in the course of one criminal episode. The issue of consequence for the jury to decide was the culpable mental state. If premeditation and deliberation were found then appellant was guilty of capital murder. If a lesser culpable mental state was found then second-degree or manslaughter findings would have been appropriate. There was no evidence to support the giving of an instruction on first-degree murder. There is no error in the refusal to give an instruction where there is no evidence to support the giving of that instruction. Frederick v. State, 258 Ark; 553, 528 S. W. 2d 362 (1975). Each possible alternative was submitted to the jury. In refusing the requested instruction the trial judge correctly stated:

I’m going to refuse that instruction because the evidence as presented in this case, it would be impossible, in effect, as far as the requirements of the law for the jury to make a finding of first-degree murder; because the evidence is uncontradicted and it has been admitted that the defendant did kill two people. At issue is premeditation and deliberation. Now if they find premeditation and deliberation, then with the fact before them that there were two deaths, they would have to find capital murder. If they do not find premeditation and deliberation they could not as a matter of law find first degree. It would have to be reduced to a lesser degree than first degree.

If there had been even slight evidence that appellant was guilty of murder in the first degree we would reverse and require an instruction on that lesser included offense. Brewer v. State, 271 Ark. 254, 608 S.W. 2d 363 (1980).

This is a case of first impression. A casual reading of the case of Robinson v. State, 269 Ark. 90, 598 S.W. 2d 421 (1980), might erroneously lead one to a different conclusion. In that case the defendant was charged with capital murder for the killing of two people and he pleaded not guilty because of insanity. The trial court refused to instruct on any lesser included offenses. We reversed, holding that there was evidence upon which a jury could make a finding that the defendant acted without premeditation and deliberation and, as a result, was guilty of second-degree murder. The failure to instruct on second-degree murder gave the jury no realistic alternative but to find the requisite culpability or permit the defendant to go free. Such an action clearly enhanced the risk of an unwarranted conviction. That danger does not exist in the present case because the trial judge gave the instructions which would have allowed the jury to find that the appellant acted without premeditation and deliberation. The refusal to give an instruction on first-degree murder did not enhance the risk of an unwarranted conviction. In Robinson, supra, we stated, as obiter dictum, that upon retrial an instruction on first-degree murder ought to be given. However, that was not a point in issue and is not binding.

The appellant contends that the trial court abused its discretion in unduly restricting voir dire. No specific instances of the court restricting voir dire are pointed out. Rather, only conclusory allegations of such restrictions are given. Even when we consider the 861 pages of voir dire in the transcript, there is no objection about undue restriction. Our fundamental rule is that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980).

Appellant urges us to adopt the position that death qualified juries are guilt prone and, as a result, he has been denied due process and equal protection guaranteed under the Fifth and Fourteenth Amendments to the Constitution of the United States. We have consistently refused to adopt this position. Miller v. State, 269 Ark. 341, 605 S.W. 2d 430 (1980), cert. denied 450 U.S. 1035, 101 S. Ct. 1750 (1981).

It is asserted by appellant that the trial court erred in admitting into evidence eight photographs. Two of the photographs are close range color pictures of the two victims who were killed. They are not grotesque. They reveal the small wounds and the small amounts of blood which are consistent with both victims having been shot once in the chest with a .22 caliber rifle. The location of the fatal wounds was relevant to the cause of death as well as the intent of appellant. One exhibit was a photograph of the rifle used by appellant. The picture is relevant and not inflammatory. A series of four photographs show the position of the bodies at the scene, with each one of the pictures being taken from a different angle. The location of the bodies is relevant to the course of conduct by the appellant and there is no unfair prejudice in this series of pictures. The final photograph shows the fatal wound to Judy Couch which was not readily apparent in the previous exhibits. Each of these photographs was admitted for a relevant purpose. Relevant evidence will be excluded only if its probative value is substantially outweighed by the danger of unfair prejudice. Gruzen v. State, 267 Ark. 380, 591 S.W. 2d 342 (1979). The question of admissibility of photographs lies largely in the sound discretion of the trial court. Tanner v. State, 259 Ark. 243, 532 S.W. 2d 168 (1976). If their introduction serves a valid purpose we will not reverse unless there is a clear abuse of discretion. Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73 (1977). The trial court acted within its sound discretion in this case.

Appellant next contends that the court should have given a requested instruction, taken from the language of Ark. Stat. Ann. § 41-612 (Repl. 1977), explaining to the jury that even after a verdict of not guilty by reason of insanity the court would still have three alternatives, the first of which would be to commit the defendant to an appropriate institution if the defendant was found to be so affected by mental disease or defect as to present a risk of danger to himself or to others. The other alternatives were also to be explained, the general effect being to tell the jury that the appellant would not automatically be released if found not guilty by reason of insanity.

Appellant recognizes that we recently addressed this identical argument and approved the trial judge’s refusal to give the proposed instruction. Curry v. State, 271 Ark. 913, 611 S.W. 2d 745 (1981). However, he urges that we overturn Curry. We do have the power to overrule an opinion previously rendered. Gregg v. Road Improvement Dist. No. 2, 169 Ark. 671, 277 S.W. 515 (1925). However, there should be settled rules for the proper administration of justice and we will adhere to our previous decisions unless some injury or injustice will result. Rhea v. State, 104 Ark. 162, 147 S.W. 463 (1912). In Curry, supra, we carefully considered the sharp divisions of authority on this issue and reexamined our previous decision as stated in Campbell v. State, 216 Ark. 878, 228 S.W. 2d 470 (1950). We see no injustice in our decision and adhere to that position.

Appellant also argues that the jury’s finding that he was not insane at the time of the offense was erroneous. Pursuant to Ark. Stat. Ann. § 41-601 (Repl. 1977), he had the burden of proving by a preponderance of the evidence that, at the time of the offenses, he was suffering from a mental disease or defect to the extent he lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Campbell v. State, 265 Ark. 77, 576 S.W. 2d 938 (1979). On appeal from a jury verdict rejecting an insanity defense the issue is whether there is any substantial evidence to support the verdict. Gruzen v. State, supra.

There was substantial evidence from which the jury could conclude that appellant could appreciate the criminality of his acts. Appellant was found by the staff at the State Hospital to be without psychosis. The victim who lived testified that just before shooting the appellant stated “You all played me for a ... fool. You didn’t think I’d do it, but I’m getting even now.” Immediately after shooting the appellant said, “Please, God, forgive me.” He directed another person to call an ambulance and the police. He stated that he intended to kill himself and added, “Well, I can’t sit in the pen the rest of my life.” After he had attempted suicide he was discovered in a truck and he said, “I’m hurting and I’m hiding.” After his arrest he had his wits about himself. He understood his rights and did not want to confess. Clearly, there was substantial evidence from which the jury could conclude that appellant did appreciate the criminality of his actions.

Appellant asks us to revise our standard of review in insanity cases as set out in Campbell, supra, and Gruzen, supra. We find no injustice in our standard and decline to change it.

Pursuant to Rule 11 (f) of the Rules of the Supreme Court, Ark. Stat. Ann. Vol. 3A (Repl. 1979), the record of the trial below has been examined and we find no prejudicial error.

Holt and Purtle, JJ., dissent.

John I. Purtle, Justice,

dissenting. I disagree with the majority because, in my opinion, they have misconstrued the law and misinterpreted our prior decisions. For a comparison of the capital murder statute and the first degree murder statute you need only turn back to the majority opinion because they are set out correctly. As stated by the statute and by the majority opinion in this case, both first degree murder and capital murder require premeditation and deliberation. The only difference in the two statutes is that if a person causes the death of two or more persons, he is guilty of capital felony murder. On the other hand, if he takes only one life, he is guilty of first degree murder. The murders in question here were not felony murders. Therefore, when the appellant killed the first person he had completed all elements of the crime of first degree murder. In fact, had the second person not been killed he could have only been tried for first degree murder. Therefore, at least as to the first person killed he was absolutely entitled to a first degree murder instruction. It is my contention that it is impossible to commit capital felony murder by the murder of two or more persons without first committing two or more first degree murders. The appellant may well have been guilty of two first degree murders in this case.

Up until this time we have pretty well held in keeping with the views I state herein. I know of no reason why the court should depart from its established line of reasoning and the cases already in existence. For example, in Robinson v. State, 269 Ark. 90, 598 S.W. 2d 421 (1980), we dealt with a factual situation almost identical to the present one. In Robinson, the appellant shot and killed two people and injured a third in the same episode. Robinson’s defense was identical to that of the appellant in the present case. The majority misinterpret the plain language of Robinson and misread the opinion when they say we sent it back only because of the failure to give a second degree murder instruction. Our exact words in Robinson were:

. . . On retrial the court should also include an instruction on first degree murder if the evidence again supports an instruction on second degree murder.....

It could not be more clearly expressed that we intended for a first degree murder instruction to be given in Robinson.

The majority correctly interpret Brewer v. State, 271 Ark. 254, 608 S.W. 2d 363 (1980). Brewer, as in Robinson v. State, supra, and the present case, claimed mental defect to a felony capital murder charge. We have many times held that where there is the slightest evidence to warrant such an instruction it amounted to error to fail to give the instruction on the lesser included offense. Robinson v. State, supra; Brewer v. State, supra; Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979). We have been so rigid in our enforcement of an accused’s right to a lesser included instruction that we have even approved the giving it over his objection. Kurck v. State, 235 Ark. 688, 362 S.W. 2d 713 (1962).

Holt, J., joins in this dissent.


author: Steele Hays, Justice.

text:
    Alfred BREWER v. STATE of Arkansas
    CR 81-91
    621 S.W. 2d 698
    Supreme Court of Arkansas
    Opinion delivered October 5, 1981

      E, Alvin Schay, State Appellate Public Defender, by: Deborah Davies Cross, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Two cases are combined in this appeal. Appellant first appealed the revocation of a sentence of probation, and while that appeal was pending he appealed an order dismissing a petition for post-conviction relief under Rule 37, A. R. Crim. P. The Court of Appeals consolidated the two cases and certified the appeal to us pursuant to Rule 29 (4).

Before considering the revocation of the sentence of probation, we point out that we will not consider the issues raised under Rule 37, as we have repeatedly held that post-conviction relief is not a substitute for appeal and is not available while an appeal is pending. Neal v. State, 270 Ark. 442, 605 S.W. 2d 421 (1980); Swisher v. State, 257 Ark. 24, 514 S.W. 2d 218 (1974); Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973).

Appellant was charged with violation of the Arkansas Hot Check Law and with numerous counts of forgery. The charges were reduced to one felony and two misdemeanors upon a plea of guilty as part of a written plea agreement providing for restitution of $1,407.12 under a work-release program. Appellant received a sentence of seven years imprisonment, suspended with active probation pending the successful completion of the plea agreement. The written conditions stipulated that appellant was to remain in the Faulkner County jail at all times except to pursue employment during the day. Local employment was found and appellant agreed to pay $100.00 a week toward restitution and $5.00 a day for maintenance.

After some two months the State filed a petition to revoke appellant’s probation alleging that he had failed to pay an installment of $100.00, had left the jail without authorization over a weekend, was habitually late in returning to the jail after work and had harassed the jailers and deputies. After a hearing the trial court found that the appellant had violated the conditions of probation by taking unauthorized weekend leave and failing to maintain the scheduled restitution payments. His probation was revoked and he was sentenced to seven years in the Department of Correction, credited with 258 days jail time.

For reversal, appellant argues that the findings of the trial court were against the preponderance of the evidence. We find the evidence sufficient to support the findings. Appellant claims that his leaving the jail was not unauthorized; rather, that the evidence shows he was allowed by the jailer to leave and was only one payment behind in his restitution payments. The jailer did permit appellant to leave, but the appellant had been told by his probation officer and the chief deputy that he would have to have the sheriff’s permission, which he did not have. Appellant permitted the jailer to assume he had permission to leave when he knew he did not. We cannot say that the trial court erred in finding that this constituted an inexcusable violation of the terms of probation. See Ark. Stat. Ann. § 41-1208 (4) (Repl. 1977). Had appellant’s conduct in taking leave under these circumstances been the result of a good faith misunderstanding it might be possible to say it was excusable, but that is not the case. The evidence here supports the conclusion that appellant left the jail notwithstanding clear instructions to the contrary and by so doing knowingly violated his probation. We will not overturn a decision in the trial court to grant a petition to revoke unless it is clearly against the preponderance of the evidence. Cureton v. State, 266 Ark. 1034, 589 S. W. 2d 204 (Ark. App. 1979); Pearson v. State, 262 Ark. 513, 558 S.W. 2d 149 (1977).

The trial court also found that appellant failed to make a weekly $100.00 restitution payment, the reason being he spent his wages during the weekend he was free. Appellant does not deny this fact, but argues that this requirement is notin writing, citing Burt v. State, 271 Ark. 245, 608 S.W. 2d 15 (1980), and Ross v. State, 268 Ark. 189, 594 S.W. 2d 852 (1980). It is true that the figure of $100.00 appears to have been fixed by informal agreement, rather than as part of the original plea agreement. Evidently that was because at the time the plea agreement was prepared and signed the appellant did not have employment and the exact amount of the payment could not be determined. However, at the commencement of the hearing the prosecution and the defense stipulated that terms of the probation were that appellant was to be incarcerated at nights and on weekends, work through the day and contribute $100.00 a week toward restitution. (T. 122) The appellant does not argue that he did not understand he was to pay $100.00; in fact, he made several payments of that amount. Hence, the reason behind the requirement that conditions be in writing, i.e. to avoid misunderstanding by the probationer, is not the source of the problem: The appellant simply chose to spend the money on other things rather than as he had agreed to. The over-all conditions of probation were in writing and signed by the appellant. Without relaxing the rule, we find no merit to the argument in the context of this case, where only the amount of the payment was not in writing and that amount was clearly agreed on.

Appellant also contends that Ark. Stat. Ann. § 46-423 (Repl. 197) provides that not more than 25% of an inmate’s work-release income shall be apportioned to restitution, and the $100.00 payments exceeded 24% of appellant’s wages. But this argument was not raised below prior to the order of revocation. Furthermore, the statute relied on applies only to misdemeanors, whereas appellant stands convicted of a felony. See § 2, Act 413 of 1977. It is sometimes said, correctly, that probation is granted by the trial court, not of right but of grace or sufferance. Morgan v. State, 267 Ark. 28, 588 S.W. 2d 431 (1979). The evidence fully supports the findings below that appellant inexcusably violated the conditions of his probation. It was the trial court’s prerogative to revoke his probation.

The judgment is affirmed.

      CA CR 80-77 and CA CR 81-4.


author: Per Curiam.

text:
    Robert N. FORD v. STATE of Arkansas
    621 S.W 2d 701
    Supreme Court of Arkansas
    October 5, 1981

      John W. Settle, for appellant.

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

Appellant, Robert N. Ford, by his attorney, has filed for a rule on the clerk.

His attorney, John W. Settle, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Carrie BANKS v. Robert (Bob) POLLARD, Sr., Robert (Bob) POLLARD, Jr.
    81-79
    621 S.W. 2d 851
    Supreme Court of Arkansas
    Opinion delivered October 12, 1981

      Samuel Turner, Jr., for appellant.

      Hale, Fogleman <tr Rogers, for appellees.
   Richard B. Adkisson, Chief Justice.

Appellant brought this action for the wrongful death of her son, Joseph A. Banks, alleging that the appellee, Bob Pollard, Jr., was negligent in directing her son to drive a tractor across a county bridge. The trial court granted a directed verdict for the appellee, finding that the appellant had failed to sustain her burden of proving negligence. We affirm.

The correctness of the lower court’s action is tested by viewing the evidence in the light most favorable to the appellant-plaintiff. We must give the appellant’s evidence its highest probative value, taking into account all reasonable inferences deducible therefrom, and affirm only if the evidence viewed in that light would be so insubstantial as to require a verdict for the appellant to be set aside. Cowling & Assoc., Inc. v. Bd. of Educ. of Clinton School Dist. #1, 273 Ark. 214 (1981).

The evidence presented showed that on June 11, 1976, the appellee directed his employee, Joseph Banks, to transport a 14,000 lb. tractor to Hughes, Arkansas, by way of Highway 79. In the course of this trip Joseph was killed when the two center spans of a wooden bridge over Fifteen Mile Bayou collapsed. This road was customarily used by all farmers in the area to transport farm equipment. Two days prior to the accident the same tractor and a 16,000 lb. tractor were driven across the bridge and neither driver reported a defect in the bridge. Bob Pollard, Jr. testified that he had personally driven a 23,000 lb. combine across the bridge about six months earlier and that he had recently driven across the bridge several times; he stated that the bridge and road appeared to be in proper condition.

Generally, the law does not place upon an employer the duty of inspection and repair of premises not under the employer’s control. Nelly v. Goldberg, 195 Ark. 790, 114 S.W. 2d 455 (1938). But an employer does owe a duty to exercise reasonable care in providing a safe place to work for his employee. Basye v. Odom, 205 Ark. 423, 168 S.W. 2d 1092 (1943). It was necessary for the plaintiff to prove that the employer either knew or by the exercise of ordinary care could have known that the bridge was defective and dangerous. Sparkman Hardwood Lbr. Co. v. McCann, 190 Ark. 552, 80 S.W. 2d 53 (1935). Here, there was no evidence that the appellee knew or could have known by the exercise of ordinary care that the bridge was defective. To the contrary, the evidence reflects that the appellee had moved equipment the same weight or heavier over the bridge two days prior to the accident and that he had personally viewed the bridge three or four days before and had seen nothing that gave him cause for concern.

Affirmed.


text:
    John F. WELLS and INDEPENDENT VOTERS OF ARKANSAS, INC. v. Richard R. HEATH, EQUILEASE CORPORATION et al
    81-87
    622 S.W. 2d 163
    Supreme Court of Arkansas
    Opinion delivered October 12, 1981
    [Rehearing denied November 9, 1981]

      Patten, Brown & Leslie, by: Charles A. Brown, for appellants.

      Wright, Lindsey & Jennings, by: Pat Goss and Gordon Rather, Jr., for appellees.

      Hickman, J., not participating.

   Richard B. Adkisson, Chief Justice.

This appeal is from a judgment of the Pulaski County Chancery Court finding that there was a specific appropriation to pay for equipment purchased by the Department of Correction pursuant to Act 368 of 1975. We remanded for a determination of this issue in Wells v. Heath, 269 Ark. 473, 602 S.W. 2d 665 (1980).

The sole issue on appeal is whether the appropriation to pay for the purchased equipment was sufficiently specific as required by the Arkansas Constitution.

Art. 5, § 29 provides:

No money shall be drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which shall be distinctly stated in the bill,

Art. 16, § 12 provides:

No money shall be paid out of the treasury until the same shall have been appropriated by law, and then only in accordance with said appropriation.

In June, 1977, the Department of Correction exercised an option to purchase certain printing and duplicating equipment that it had been leasing from the appellee, Equilease. The amount of the purchase was $148,276.34. The appropriation to pay for this purchase is found in § 2 of Act 368 of 1975 which authorizes the spending of $1,221,356 for "maintenance and general operation.” This section is the appropriation for the Department of Correction Prison Industry Fund for the biennial period ending June 30,1977; its stated purpose is to pay for that industry’s personal services and operating expenses.

Ark. Stat. Ann. §§ 13-327 through -355 (Repl. 1979) is the General Accounting and Budgetary Procedures Law of Arkansas. Section 13-338 (F) provides that appropriations shall be classified under six separate headings, one of which is “maintenance and general operation.” This heading is further defined in § 13-338 (F) (2) to include expenses for equipment. Here, the purchase was for equipment and was, therefore, a proper expenditure of funds appropriated for maintenance and general operation. The purpose of the appropriation is set out in the appropriation act and satisfies the requirements of the Arkansas Constitution.

Appellant argues that § 12 of Act 713 of 1977 which transferred funds to the Prison Industry Fund for payment of the appropriation made by § 2 of Act 368 of 1975 was an unconstitutional appropriation because it was not sufficiently specific in its purposes. We disagree. Act 713 was clearly not an appropriation act; it was merely a way to transfer funds into an account for payment of an existing appropriation.

Appellant further argues that Ark. Stat. Ann. § 46-245 (Repl. 1977) prohibits the use of tax revenues for the purchase of equipment under the Prison-Made Goods Act of 1967 (Ark. Stat. Ann. §§ 46-234 through -247 [Repl. 1977]). The effect ofAct713ofl977in transferring general revenues to the Prison Industry Account repealed by implication the provision in Ark. Stat. Ann. § 46-245 requiring that purchases be payable solely out of revenues derived from the industry. If two legislative acts relating to the same subject are in conflict with each other, the later act controls. State v. Lawrence, 246 Ark. 644, 439 S.W. 2d 819 (1969).

Affirmed.

Hickman, J., not participating.


text:
    Bonnie Wallace WILSON and Clyde WILSON v. D. L. WALLACE and Dorothy WALLACE
    81-60
    622 S.W. 2d 164
    Supreme Court of Arkansas
    Opinion delivered October 12, 1981

      Eaton ér Benton, by: Charles S. Embry, Jr., for appellants.

      Gill & Johnson, by: Marion S. Gill, for appellees.
   George Rose Smith, Justice.

The question is this: When the widowed mother of an infant child remarries and later joins her second husband in obtaining a probate court decree by which he adopts the child, are the paternal grandparents of the child still entitled to obtain visitation privileges by a chancery court proceeding? The chancellor, recognizing the binding effect of the Court of Appeals decision in Hensley v. Wist, 270 Ark. 1004, 607 S.W. 2d 80 (Ark. App. 1980), answered the question in the affirmative and continued in force the existing visitation privileges of the appellees. We cannot agree with the Hensley decision and must therefore deny the grandparents’ claim to visitation.

The facts are not in dispute. The child, Dana, was born to Danny and Bonnie Wallace in 1972. Bonnie later sued for divorce, but her husband was killed in a traffic accident in 1974. Danny’s parents, the appellees, had a friendly relationship with Bonnie and with their granddaughter until a dispute arose in 1979, apparently after Bonnie had married Clyde Wilson. The Wallaces then brought a suit in chancery court against Bonnie and obtained a consent decree recognizing specified visitation privileges. A 1975 statute permits the maintenance of such a suit by grandparents whose own child is deceased. Ark. Stat. Ann. § 57-135 (Supp. 1981).

In July, 1980, the Bradley Probate Court entered a final decree by which Clyde Wilson adopted Dana, whose name was changed to Dana Lynette Wilson. The Wallaces then brought in Clyde Wilson as a defendant in the chancery court case and had the Wilsons cited for contempt of court for their refusal to recognize the Wallaces’ visitation privileges. After a hearing the chancellor denied the Wilsons’ motion for summary judgment and reaffirmed the Wallaces’ visitation privileges, with clauses in the decree prohibiting the Wallaces from ever referring to their deceased son in the child’s presence, from ever saying that Dana had any father except Clyde Wilson, and from ever referring to Dana by any surname except Wilson.

Our disagreement with the Court of Appeals decision in Hensley rests squarely on a 1977 statute which amended the adoption law to provide for the first time that the effect of an adoption decree, except with respect to a spouse of the petitioner and relatives of that spouse (here Bonnie and her relatives), is “to terminate all legal relationships between the adopted individual and his relatives, including his natural parents, so that the adopted individual thereafter is a stranger to his former relatives for all purposes.” (Our italics.) Ark. Stat. Ann. § 56-215 (Supp. 1981). Although the italicized language may seem insensitive with respect to the adopted child’s blood relatives, who find themselves suddenly put in the position of strangers, the difficulties which the statute was meant to overcome are illustrated by the provisions of the order now before us, with its awkward attempts to conceal the adoption from the child.

Such difficulties are unlikely when all those concerned remain on amicable terms with one another, but problems and tensions must be faced and resolved when bitterness arises, as here. It was unquestionably within the province of the legislature to decide that the reasons favoring the solidarity of the adoptive family outweigh those favoring grandparents and other blood kin who are related to the child through the deceased parent. The final decision as to the state’s policy lay with the legislature, not with the courts. We have already recognized the force of the 1977 statute in two earlier cases. Poe v. Case, 263 Ark. 488, 565 S.W. 2d 612 (1978); Quarles v. French, 272 Ark. 51, 611 S.W. 2d 757 (1981). We adhere to our position and accordingly overrule the decision of the Court of Appeals in Hensley, which in effect applied our former law as if the 1977 statute did not exist.

Reversed.


text:
    Clara JACKSON et al v. CITY OF LITTLE ROCK et al
    81-61
    621 S.W. 2d 852
    Supreme Court of Arkansas
    Opinion delivered October 12, 1981

      Matthews ¿r Sanders, by: Roy Gene Sanders, for appellants.

      R. Jack Magruder, III, City Atty., by: Robert T. Taylor, Asst. City Atty., for appellees.
   Frank Holt, Justice.

This class action involves an appeal from the chancellor’s decision granting appellees’ motion for a summary judgment. The chancellor held that the appellee City of Little Rock was under the responsibility to furnish services to the annexed area. Therefore, the City properly collected franchise taxes from appellants in the area during the pendency of the appeal to the Supreme Court from a circuit court order approving the annexation.

In 1973 and again in 1975, the City of Little Rock attempted to annex 55 square miles of contiguous lands. On both occasions the annexations were declared void. Saunders v. City of Little Rock, 257 Ark. 195, 515 S.W. 2d 633 (1974); and Saunders v. City of Little Rock, 262 Ark. 256, 556 S.W. 2d 874 (1977). During the pendency of each appeal from the circuit court’s final order holding each annexation valid, the City of Little Rock collected franchise taxes from the residents of the annexed area. Appellants contend these franchise taxes were an illegal exaction and should be refunded. The appellees, the City and Board of Directors, however, respond that their action was lawful since it furnished services to the residents of the annexed area after the circuit court’s final order confirming the annexation and during the appeal to this court.

Ark. Stat. Ann. § 19-307.2 (Repl. 1980) provides in pertinent part: “The annexation shall be effective ... [if, as here, contested in circuit court] on the date the judgment of said Court becomes final.” Appellants argue that the judgment of the circuit court, however, did not become final until the issue was finally resolved on appeal to this court. Even so, as the chancellor observed, Ark. Stat. Ann. § 27-2119 (Repl. 1962), in effect during these appeals, provides:

An appeal . . . shall not stay proceedings on the judgment or order, unless a supersedeas is issued.

To the same effect are Rule 8, Rules of Appellate Procedure, and Rule 62, Rules of Civil Procedure, Ark. Stat. Ann. Vol. 3A. Consequently, we cannot agree with appellant’s argument that a supersedeas or stay was unnecessary pending a final judgment on appeal. Veteran’s Taxicab Company v. City of Fort Smith, 213 Ark. 687, 212 S.W. 2d 341 (1948). Here, the circuit court’s order was never stayed nor superseded in any manner. In the circumstances, we agree with the chancellor that the appellee City had the authority and responsibility to furnish services to the annexed area and collect the questioned franchise taxes, during the pendency of the appeal, in accordance with the circuit court order approving the annexation.

Affirmed.

Purtle, J., not participating.