author: David Newbern, Justice.

text:
    Vernon Lee CANNON v. STATE of Arkansas
    CR 85-20
    690 S.W.2d 725
    Supreme Court of Arkansas
    Opinion delivered June 10, 1985

      William R. Simpson, Jr., Public Defender, Deborah R. Sailings, Deputy Public Defender, Jerome Kearney, Deputy Public Defender, by: Carolyn P. Baker, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Alice Ann Burns, Deputy Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant was sentenced to imprisonment for life without parole upon conviction of capital felony murder. The felony was arson. He was accused of setting fire to the home of Beatrice Boykin and causing the deaths of two of Mrs. Boykin’s children. Our jurisdiction is based on Arkansas Supreme Court and Court of Appeals Rule 29. 1. b.

Three points of appeal are raised. First, the appellant contends there is no difference between the elements of first degree felony murder and capital felony murder and this overlap deprives the accused of due process and equal protection of the laws. Second, he contends a mistrial should have been declared when a juror, after voir dire, stated she had some prior knowledge of the crime. Third, he questions the sufficiency of the evidence. We will treat these points in inverse order.

1. Sufficiency of the evidence

Cannon had been living at Mrs. Boykin’s home. She testified she asked him to leave because she had had trouble with him. He asked to be allowed to return, and she refused. Mrs. Boykin testified that, a short time after Cannon had moved out, he told her he would burn her house down. She did not consider Cannon to have been serious when he made the threat.

A volunteer fireman’s initial report concluded the fire was caused by the use of a kitchen range for heating the home. However, a state police investigator’s report concluded the fire had been set deliberately and was arson.

The threat and the conclusion of arson, even when combined with other evidence of trouble between Cannon and Mrs. Boykin might not have been sufficient to sustain the conviction. However, Audrey Anthony testified Cannon told her he was sorry he had “killed the kids and it should have been Beatrice.” Robert Dozier testified “[h]e said he had finally got that bitch and that he had burnt the house down.”

We hold there was substantial evidence to support the conviction. Breault v. State, 280 Ark. 372, 659 S.W.2d 176 (1983). There was no need for the jury to resort to speculation or conjecture. Heard v. State, 284 Ark. 457, 638 S.W.2d 232 (1985).

2. Juror’s knowledge

During the prosecutor’s opening argument a juror realized that her daughter’s schoolmates had taken up a collection to benefit the family of one of the deceased Boykin children. She got the attention of the prosecutor and of the court who had the juror approach the bench along with counsel. Out of the hearing of other jurors the one in question was asked whether her prior knowledge of the deceased child would affect her ability to serve. While she gave, at first, one or two somewhat equivocal responses, such as, “I don’t think so but I don’t know. I’ve never been through a trial before. I don’t think so. I don’t think — I arbitrate between children all the time so — ,” her ultimate statement was that she could and would obey the court’s instructions. The juror said she did not know the deceased child, and that her daughter did not know her either.

We agree with the appellant’s contention that a juror’s final statement that she can put aside opinions already formed, conceptions and information she may have about the case may not be sufficient. Glover v. State, 248 Ark. 1260, 455 S.W.2d 670 (1970). However in this case there is no evidence whatever that the juror had any opinion or conception of the case. The only information she had was knowledge of the deceased child’s name and the action taken at the school.

The appellant’s principal citation on this point is Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983), where it was held that a juror who had not been truthful in answers given on voir dire should have been excused upon challenge for cause despite her responses stating she could be fair and impartial. In the case before us now we have a virtually opposite situation with a juror who is honest almost to a fault. Had this juror had a relationship with the deceased child, we might have found her assurances unsatisfying, Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1970), but that was not the case.

We hold the judge did not abuse her discretion by failing to grant a mistrial.

3. Overlapping crimes

Ark. Stat. Ann. § 41-1501 (1 )(a) (Repl. 1977) provides that one who, in the course of committing arson, kills another is guilty of capital murder. Ark. Stat. Ann. § 41-1502(1) (a) (Repl. 1977) provides that one who, in the course of committing a felony, kills another is guilty of murder in the first degree. The range of punishments for these two offenses, of course, differs. The appellant’s argument is that this overlapping of statutes permits capriciousness in charging by the prosecutor and in deciding by the jury between the offense of capital murder and the lesser included first degree murder.

The appellant recognizes that we have decided this precise issue contrary to his argument “on numerous occasions,” and he is raising it here “to preserve it for additional appeals, should that action become necessary.”

We need only say we have been given no reason to depart from our holdings in, e.g., Ruiz v. State, 273 Ark. 94, 617 S.W.2d 6 (1981), cert. den. 454 U.S. 1903 (1981), and Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981), in which we reviewed decisions of the U.S. Supreme Court, i.e., Beck v. Alabama, 447 U.S. 625 (1980); Roberts v. Louisiana, 428 U.S. 325 (1976), and found our statutory scheme to be constitutionally healthy in comparison with the laws found in those cases to have been infirm.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Timothy Ellis McDANIEL v. STATE of Arkansas
    CR 84-54
    691 S.W.2d 153
    Supreme Court of Arkansas
    Opinion delivered June 10, 1985

      Appellant, pro se.
    No response.
   Per Curiam.

Petitioner Timothy Ellis McDaniel was found guilty by a jury of first degree murder and sentenced to life imprisonment in the Arkansas Department of Correction. We affirmed on October 8, 1984. McDaniel v. State, 283 Ark. 352, 679 S.W.2d 732 (1984).

On February 19, 1985, petitioner filed in the circuit court a petition for writ of error coram nobis and a motion for new trial. The basis of both the petition and motion was the allegation that petitioner’s co-defendant Jaran Gookin had recently signed an affidavit admitting that he, not petitioner, shot the murder victim. The trial court denied the motion for new trial as untimely. It treated the error coram nobis petition as a petition to proceed pursuant to A.R.Cr.P. Rule 37 and also denied it. The court correctly concluded that since petitioner’s case had been affirmed on appeal, he was required to secure permission from this Court to proceed under Rule 37 in the trial court. Rule 37.2 (a). Petitioner McDaniel has not requested or received such permission from this Court.

Petitioner has now filed a motion asking that we grant an extension of time for him to file a petition for writ of certiorari challenging the denial of the petition for writ of error coram nobis. Since the trial court treated his error coram nobis petition as a Rule 37 petition, he has also filed a notice of appeal in the circuit court, apparently because a direct appeal is the proper means to obtain a review of the denial of relief sought under Rule 37.

The petition for extension of time to file a petition for writ of certiorari is denied. Petitioner was not entitled to relief on a writ of error coram nobis. Once a conviction has been affirmed on appeal, error coram nobis is not available to secure a new trial on the basis of newly discovered evidence. Williams v. Langston, 285 Ark. 444, 688 S.W.2d 285 (1985); See also Pickens v. State, 284 Ark. 506, 683 S.W.2d 614 (1985); Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). If a petitioner discovers some ground for relief such as that claimed by this petitioner after a judgment is affirmed, he may present that ground in a clemency proceeding. Williams v. State. As the trial court was correct that it did not have jurisdiction to act on the petition whether the court considered it to be either a petition for writ of error coram nobis or a Rule 37 petition, there is no cause for this Court to consider further petitioner’s motion for extension of time to file a petition for writ of certiorari.

Motion denied.


author: Jack Holt, Jr., Chief Justice.

text:
    Billy Ray SMITH v. STATE of Arkansas
    CR 85-32
    691 S.W.2d 154
    Supreme Court of Arkansas
    Opinion delivered June 17, 1985
    [Rehearing denied July 15, 1985.]

      Honey & Rodgers, by: Danny P. Rodgers, for appellant.

      Steve Clark, Att’y Gen., by: Velda P. West, Asst. Att’y Gen. for appellee.

       Purtle, J., would grant rehearing. George Rose Smith and Dudley, JJ., not participating.

   Jack Holt, Jr., Chief Justice.

The appellant, age 16, entered guilty pleas on January 7, 1977, to charges of rape and aggravated robbery and was sentenced to 40 years and 5 years respectively for the crimes. The sentences were to run consecutively. On November 9, 1983, the appellant filed a motion to withdraw his plea which was granted and a new trial ordered, on July 25, 1984. [Although the motion was apparently untimely pursuant to A. R. Cr. P. 37.2(c), no objection was made below on those grounds.] Following a jury trial on September 18,1984, the appellant was sentenced to life imprisonment for rape and 50 years for aggravated robbery, the terms to run consecutively. It is from that conviction that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(b).

The appellant raises numerous points on appeal. He challenges the trial court’s failure to suppress a confession made by him, and the admission into evidence of a watch owned by the victim; he argues that there was no substantial evidence to support either charge and it was error therefore not to grant his motion for directed verdict; he claims the court erred by imposing a greater sentence on retrial than was originally imposed and by failing to modify the sentences; and finally he argues that the trial judge abused his discretion when he mechanically ordered the sentences served consecutively. The appellant’s sundry points fall into three groups and will be discussed in that manner. We find no error.

7. EVIDENTIARY RULINGS

The first argument raised by the appellant is that the court erred by not suppressing an incriminating statement made by him while he was in custody. In support of this contention, the appellant raises numerous overlapping issues, but basically he maintains that the statement was involuntary because he had not waived his right to remain silent or his right to counsel and had in fact invoked those rights before his statement was taken; the statement was not reliably proven; and the statement was the tainted fruit of an illegal arrest and seizure.

The facts surrounding the commission of the crime were as follows. Lula Brock, age 82, of Murfreesboro, Arkansas, was raped and robbed in her home on December 31, 1976. The appellant was arrested on January 1,1977, and was interrogated that same day, at which time no statement was made. He was interrogated again on January 3, 1977, when he made a statement admitting he had committed the crime.

According to his statement, the appellant went to Mrs. Brock’s house because he figured she would have some money he could take. He said he took a long kitchen-type knife with him and knocked on the back door. Mrs. Brock opened the door and the appellant said he stepped inside, pulled the knife out, grabbed her arm and asked her if she had any money. The appellant told police Mrs. Brock gave him an amount over $200.00 and he then decided to rape her. The appellant described the rape and said he then asked Mrs. Brock if she got a social security check and when she would get her next one. According to the statement, Mrs. Brock told the appellant she would get a check the following week, the appellant then cut the telephone receiver from the telephone, hid the receiver in the front room of the house and left.

Prior to the 1984 trial, a Denno hearing was held to determine the voluntariness of the appellant’s confession. Everyone testified who was present at the January 3 interrogation when the statement was made. Joe T. White, who at the time was an investigator for the prosecuting attorney, stated that he advised the appellant of his rights using a standard form, the appellant signed the form, and never requested an attorney. White and the subsequent witnesses all used unsigned copies of the rights form and of the confession that were in the state police files to refresh their memories because the originals of both documents were destroyed about a year and a half before the hearing. Neither document was admitted into evidence.

White further testified that after the appellant waived his rights, he made a statement which White recorded. The statement was then dictated by Sgt. Carroll Page into the official report and signed by the appellant. The witness reviewed the copy of the statement made by the appellant and said it was accurate. White testified that he was basically able to remember the appellant’s statement without looking at the copy, but that he did not remember it exactly. White also stated that the appellant would not have known the phone cord was cut if he had not been in Mrs. Brock’s house.

George Steele, Jr., who was the prosecuting attorney when the crime occurred, testified that although he was present for the January 3 interview he was not there when the appellant’s rights were read to him. Steele stated that he remembered taking the appellant’s statement and recalled in general terms what it was about, but did not remember it specifically without looking at the copy. Steele also testified that the appellant did not ask for a lawyer in his presence.

Carroll Page, a criminal investigator with the state police at the time of the incident, testified that he was present at the January 3 interview and heard White advise the appellant of his rights. Page stated that the appellant never asked for a lawyer. He explained that he dictated the statement made by the appellant into the official report. Page also testified he could not specifically remember what was said by the appellant in his confession without looking at the report, but that the copy of the report accurately reflects the dictated statement.

The appellant’s testimony contradicted that of the officials. He stated that his rights were never read to him at the January 3 interview and that neither White nor Page was present. He denied making a confession but said he did offer an alibi. The appellant also testified that he requested an attorney but never received one. The appellant admitted that he was advised of his rights on January 1 when he was arrested but said he did not understand them and does not remember if he signed the rights form. He said he asked for an attorney on January 1 also, but one was never provided.

We have held that,

In reviewing the admission of a confession over an objection for alleged involuntariness, we make an independent determination based upon the totality of the circumstances and reverse the action of the trial judge only when we find his finding to be clearly against the preponderance of the evidence. ... Of course, a confession given by an accused while in custody is presumed to be involuntary, and the burden of proving that it was actually voluntary rests upon the state, (citations omitted).

Freeman et al v. State, 258 Ark. 617, 527 S.W.2d 909 (1975).

The factors considered in determining voluntariness of a confession are the “age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, repeated and prolonged nature of questioning, or the use of physical punishment,” Barnes v. State, 281 Ark. 489, 665 S.W.2d 263 (1984).

Here, the appellant was 16; there was no testimony about his education or intelligence level; there was testimony that he was advised of his rights on January 1 and 3, 1977; and there was no evidence of a prolonged detention, repeated questioning, or the use of physical punishment. Under the totality of the circumstances, these factors did not render the confession involuntary.

As to the appellant’s contention that he had not waived his right to remain silent and his right to be represented by counsel, and had, in fact, invoked those rights, the three officials who were present on January 3 all testified that the appellant was so advised and did not request an attorney.

While “[i]t is fundamental that if a defendant requests counsel, interrogation must stop immediately and all questioning must take place with counsel present,” Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984), when the situation presents a swearing match between the officials and the appellant, as here, the conflict in testimony must be resolved by the trial court. Williamson v. State, 277 Ark. 52, 639 S.W.2d 55 (1982). The judge is not required to believe any witness’ testimony, especially the testimony of the accused since he is the person most interested in the outcome of the trial. Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979). The judge properly resolved the conflict.

The appellant also argues that his statement was not reliably proven because the original signed copy of the confession had been destroyed and was therefore not available at the trial. The actual statement was not introduced at the trial. Instead, the copy was used to refresh the memory of the three officials who were present during the interrogation. Uniform R. Evid. 1004 (1) provides that the original is not required and other evidence of the contents of a writing is admissible if the original has been destroyed. Furthermore, the state produced at the trial the copy of the statement that was used to refresh the memory of the witnesses in compliance with Unif. R. Evid. 612. The only prohibition against using such testimony is when a witness testifies about a matter about which he has no personal knowledge. Unif. R. Evid. 602. Here, all three witnesses testified that they remembered the statement being made by the appellant and recalled in general terms what was said. The statement was reliably proven.

The appellant contends that the state failed to present all material witnesses at the Denno hearing since all of the officers who were present at the January 1 interrogation did not testify. It is true that the state must produce all material witnesses to a confession at the suppression hearing or account for its failure to do so; Williams v. State, 278 Ark. 9, 642 S.W.2d 887 (1982). Here, the testimony was that the confession was made at the January 3 interview and all of the officials who were present then testified. It was not error for the state not to produce all the officials from the January 1 interview since no statement was made by the appellant at that time.

The appellant’s final basis for contending that his confession should have been suppressed is that it was the product of an illegal arrest and was therefore tainted. A review of the record reveals that the arrest was based on probable cause and was therefore not illegal. However, the appellant did not raise this issue at the Denno hearing or during the course of the trial below and he is therefore precluded from raising it for the first time in this appeal. Rutledge v. State, 263 Ark. 300, 564 S.W.2d 511 (1978).

The appellant argues that the court also erred by failing to suppress a watch that was introduced into evidence. When the appellant was arrested he was wearing a watch which was subsequently identified as belonging to Mrs. Brock. The appellant also bases this suppression argument on the fact that the watch was tainted by the illegal arrest. As previously stated, this argument was not made before the trial judge and was not properly preserved for appeal.

II. DIRECTED VERDICTS

The third and fourth points raised by the appellant are that it was error for the trial court not to grant his motion for directed verdict at the conclusion of the state’s evidence.

To prove that the appellant committed an aggravated robbery, pursuant to the statute in effect when the crime was committed, the state had to prove that he committed a robbery and was armed with a deadly weapon or inflicted or attempted to inflict death or serious physical injury upon Mrs. Brock. Ark. Stat. Ann. § 41-2102 (Repl. 1977).

The main evidence of robbery in this case was supplied by the appellant himself in his confession. However, Ark. Stat. Ann. § 43-2115 (Repl. 1977) provides that “[a] confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof that such an offense was committed.”

The facts that the appellant was wearing a watch belonging to Mrs. Brock when he was arrested and the officers found that the telephone receiver had been cut from the phone and hidden, corroborated the appellant’s statement and supplied the additional proof that a robbery was committed.

The rape charge is also substantiated by evidence other than the appellant’s confession. Medical testimony stipulated to by both parties was that Mrs. Brock had been raped. In Mosley v. State, 246 Ark. 358, 438 S.W.2d 311 (1969), the appellant contended the state failed to make a prima facie case of rape because his confession was the only evidence connecting him with the crime. This court held, [t]hat is all the law requires, it being sufficient for the other proof to show that the offense charged was committed by someone.” The evidence here was therefore sufficient.

The motion for directed verdict was properly denied.

III. SENTENCING

The appellant’s final two assignments of error concern the imposition of his sentences. He argues that the court erred by subjecting him to the possibility of receiving greater sentences upon retrial, by imposing greater sentences on retrial, and by failing to modify and reduce his sentences. He also argues the judge erred by mechanically making the sentences consecutive. The appellant asks that the sentences be reduced to those originally imposed.

We first note that the sentences imposed, life for the rape and 50 years for the aggravated robbery, were within the statutory limits. Ark. Stat. Ann. § 41-901 (Repl. 1977). The sentences were therefore legal. Porter v. State, 281 Ark. 277, 663 S.W.2d 723 (1984).

In support of his contention that the second sentences were excessive, the appellant relies upon North Carolina v. Pearce, 395 U.S. 711 (1969) where the United States Supreme Court held that, although there is no absolute constitutional bar to imposing a more severe sentence on reconviction, due process requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he received after a new trial. The defendant must be freed of any apprehension of a retaliatory motivation on the part of the sentencing judge. The Supreme Court further held that the reasons for imposition after retrial of a more severe sentence must affirmatively appear in the record and must be based on objective information concerning the defendant’s identifiable conduct after the original sentencing proceeding. That decision was followed by this court in Marshall v. State, 265 Ark. 302, 578 S.W.2d 32 (1979) and by the court of appeals in Cockerel v. State, 266 Ark. 908, 587 S.W.2d 596 (1979).

Pearce, Marshall, and Cockerel, however all dealt with a situation where a judge imposed the first sentence and on retrial a judge again imposed a sentence. The fact that the sentence received by a defendant is meted out by a judge both times is the basis for the concern about vindictiveness.

Here, however a judge handed down the first sentence, which was the result of a negotiated plea, but a jury recommended the sentences imposed when the appellant was convicted in the 1984 proceedings.

The issue presented by this case was addressed by the Supreme Court in Chaffin v. Stynchcombe, 412 U.S. 17 (1973). In Chaffin the Court affirmed the rationale of Pearce but held that due process of law does not require the extension of Pearce-type restrictions to jury sentencing.

The Court found that if the jury is not aware of the first sentence imposed, then vindictiveness is not a problem. There is no evidence in this record that the jury was aware of the first sentences received by the appellant. Any motions in which reference was made to the sentences were made out of the hearing of the jury. Chaffin does not require that the jury be unaware that the appellant has previously been tried, just that they not know the specific sentence he received.

The Court in Chaffin said:

Pearce was not written with a view to protecting against the mere possibility that, once the slate is wiped clean and the prosecution begins anew, a fresh sentence may be higher for some valid reason associated with the need for flexibility and discretion in the sentencing process. The possibility of a higher sentence was recognized and accepted as a legitimate concomitant of the retrial process.
This case, then, is controlled by the inquiry into possible vindictiveness counseled by Pearce. . . . The potential for such abuse of the sentencing process by the jury is, we think, de minimis, in a properly controlled retrial. . . . [T]he jury, unlike the judge who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication. Similarly, the jury is unlikely to be sensitive to the institutional interests that might occasion higher sentences by a judge desirous of discouraging what he regards as meritless appeals.

The appellant’s first sentence was the result of plea negotiations. An entirely different situation is presented when a jury imposes a sentence after hearing the evidence and reaching a verdict. The judge did not err by allowing the jury to impose greater sentences on retrial.

The final issue presented in this appeal is whether the trial judge mechanically ordered the sentences served consecutively. The judge has the discretion to make sentences consecutive, and we do not reverse absent an abuse of that discretion. Blair v. State, 284 Ark. 330, 681 S.W.2d 374 (1984). However, there must be an exercise of judgment by the trial judge, “not a mechanical imposition of the same sentence in every case.” Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980). There was no evidence here that the judge mechanically sentenced the appellant.

Affirmed.


author: George Rose Smith, Justice. Per Curiam. David Newbern, Justice,

text:
    Sheila HANEY v. P.A. DeSANDRE
    84-289
    692 S.W.2d 214
    Supreme Court of Arkansas
    Opinion delivered June 17, 1985
    [Rehearing denied July 15, 1985.]

      Boswell, Smith & Clardy, by: Clark S. Brewster, for appellant.

      Davis, Cox & Wright, by: Constance G. Clark, for appellee.

       Newbern, J., concurring; Dudley, J., not participating.

   George Rose Smith, Justice.

This is a medical malpractice action against Dr. F.A. DeSandre, a specialist in obstetrics and gynecology. Dr. DeSandre performed a hysterectomy on the plaintiff, Sheila Haney, on August 20,1980, and in the course of the operation discovered a fetus that appeared to be from one to two weeks old. It was then too late to discontinue the surgery. The complaint was based primarily on the ground that Dr. DeSandre should have tested the patient for pregnancy before the operation. The jury verdict was for the defendant. On appeal, errors in the admission of evidence and in the refusal of an instruction are argued as a basis for reversal. The appeal comes to this court as a tort case. Rule 29(1 )(o).

At the outset the appellee argues that the asserted errors are immaterial, because the court should have directed a verdict for the defendant. The premise for the appellee’s argument is that Act 709 of 1979 (Ark. Stat. Ann. §§,34-2613 to -2620 [Supp. 1983]) is said to put the burden on theplaintiff to prove by expert testimony that the doctor failed to meet the degree of skill ordinarily used by other doctors in the locality or in a similar locality. Inasmuch as the plaintiff rested her case without producing such expert testimony, it is argued that the defendant was entitled to a directed verdict.

There are two obstacles to our reaching this argument on its merits. First, the appellee did not stand on his motion for a directed verdict at the close of the plaintiff’s proof. Instead, he chose to introduce testimony tending to show that doctors do not routinely order pregnancy tests before performing a hysterectomy. The appellee waived his motion by not electing to stand on it. Granite Mountain Rest Home v. Schwarz, 236 Ark. 46, 364 S.W.2d 306 (1963). The defense proof was not conclusive, because it established a negative at most, that tests are not routinely ordered. This case may not have been routine. Dr. DeSandre assumed that Mrs. Haney had not missed a menstrual period, put the proof is that periods ordinarily occur every 28 to 30 days. Dr. DeSandre knew that his patient’s last preceding period had begun the 36th day before the operation. The point' is not controlled by Sexton v. St. Paul Fire & Marine Ins. Co., 275 Ark. 361, 631 S.W. 2d 270 (1982), for there the issue was beyond the common knowledge of the jury. Here that may not be true. See Jarboe v. Harting, 397 S.W. 2d 775 (Ky. 1965).

In the second place, the statute does not expressly state that every plaintiff in a malpractice case must find a doctor willing to testify against a fellow doctor. Such a requirement might subject the validity of the statute to serious doubt, as being special or class legislation. The appellant, however, has not raised the constitutional question, and we adhere to our settled practice of not deciding such a question without its having been properly raised and argued. Until that issue is settled, we cannot assume that the posture of the case at a second trial will be the same as that now before us.

Since the appellee was not entitled to a directed verdict at the close of all the proof, we turn to the appellant’s two points for reversal. Both have merit. First, Dr. Cole, testifying as an expert for the defense, was permitted on direct examination to bolster his testimony by producing an authoritative treatise on gynecology and testifying that nowhere in the book “does it state that you should order routinely a pregnancy test prior to a hysterectomy.” The negative is again being invoked to prove a positive. Uniform Evidence Rule 803 (18) permits statements from learned treatises to be read into evidence if relied upon by an expert witness. There was no statement one way or the other in the book. A failure to say that a test should be routinely ordered does not mean that it should not be ordered in the circumstances confronting Dr. DeSandre.

Second, the court refused to give AMI 102, which tells the jury they may consider the evidence in the light of their common knowledge, observations, and experiences in the affairs of life. AMI Civil (2d), 102 (1974). The Note on Use says not to use the instruction when AMI 1501 is given. Only the first paragraph of AMI 1501 was given. The Note on Use to AMI 1501 explains that if its second paragraph, restricting the jury’s consideration to the expert testimony, is given, AMI 102 should not be used. Here the second paragraph of AMI 1501 was not given; so the court was free to give AMI 102. In a case of this kind we think the instruction to be especially pertinent, for it assures the jury that they may use common sense in considering whether the defendant was negligent.

Reversed.

Rehearing denied July 15, 1985

Per Curiam.

Petition for Rehearing is denied.

Newbern, J., concurs.

Dudley, J., not participating.

David Newbern, Justice,

concurring. I concur in the denial of the motion for rehearing in this medical malpractice action in which the appellee contended we should have ignored the appellant’s points for reversal because the trial court erred in not granting the appellee’s motion for a directed verdict at the end of the plaintiff’s case.

In our opinion we said we would not consider the appellee’s argument because rather than rest on his directed verdict motion the appellee proceeded to present evidence. In his motion for rehearing the appellee takes issue with our citation of Granite Mountain Rest Home v. Schwarz, 236 Ark. 46, 364 S.W.2d 306 (1963). The appellee argues that case “holds that one cannot take advantage of the judge’s original erroneous refusal to direct a verdict at the time of the first motion if he does not renew the motion at the close of all the evidence.” It is true that in Granite Mountain Rest Home v. Schwarz, supra, we sent conflicting signals:

We are unable, under our established procedure, to consider the first point for reversal, viz, that the court erred in not directing a verdict for appellant. A motion for directed verdict was made by appellant at the conclusion of plaintiff's (appellee’s) testimony, and was denied by the court. Whether this action by the trial court was correct is of no moment, for upon the motion being overruled, appellant proceeded to offer its evidence. We have held that when one proceeds, after the denial of such a motion, to introduce proof, he waives the error of the court in failing to grant same. Grooms v. Neff Harness Co., 79 Ark. 401, 96 S.W. 135; Ft. Smith Cotton Oil Co. v. Swift and Co., 197 Ark. 594, 124 S.W.2d 1. This is the only motion that appellant can have reference to, for it did not renew the motion at the conclusion of all the evidence. As stated in Wigmore on Evidence, Volume 9, Third Edition, one “cannot take advantage of the judge’s original erroneous refusal to direct a verdict for insufficiency at the time of the first motion if he does not renew the motion at the close at all the evidence.” The reasoning employed, is, of course, apparent, for if one has waived his original motion, and does not renew, same, there is nothing to be passed upon by the court at the conclusion of the evidence. No error could have, been committed by the court at this point — for nothing was presented. [236 Ark. at 47-48; 364 S.W.2d at 307.]

That paragraph seems to suggest that if the motion for a directed verdict is made by the defendant at the close of the plaintiff’s case in chief and is renewed at the end of all the evidence the appellate court may consider whether the motion should have been granted at the close of the plaintiff’s case in chief. The appellee has cited us to other cases which also could possibly be read that way. See, e.g., Oliver v. Jones, 239 Ark. 572, 393 S.W.2d 248 (1965), where in footnote 1 we said:

A motion for directed verdict was made at the close of the plaintiff’s case and denied by the Court. The defendant then introduced evidence, and such waived the motion made at the close of plaintiff’s case. Grooms v. Neff Harness Co., 79 Ark. 401, 96 S.W.135; Ft. Smith Cotton Oil Co. v. Swift, 197 Ark. 594, 124 S.W.2d 1; and Granite Mountain v. Schwarz, 236 Ark. 46, 364 S.W.2d 306. At the close of entire case appellant again moved for directed verdict, and that brings the ruling before us. [239 Ark. at 574; 393 S.W.2d at 250.]

My reason for declining to vote for a rehearing in this case is twofold. First, I am not convinced our ruling would have been different had we been willing to consider the propriety of denial of the motion at the close of the plaintiff’s case in chief.

Secondly, our holding that we will not review the propriety of denial of the motion at the close of the plaintiff’s case in chief, even if the defendant has renewed the motion at the end of all the evidence, makes sense.

While the historical development of the motion for a directed verdict is reported to have been to permit its use at the end of the trial and in the form of a motion for judgment notwithstanding the verdict to avoid risks of error and to extend time for deliberation by the judge, see F. James, Civil Procedure, §7.22, pp. 331-336 (1965), we have to recognize that the motion at the close of all the evidence is different from the earlier one. The court cannot help but be more informed at the later juncture. Either party may have produced evidence which will be enough to push the plaintiff’s case over the directed verdict threshold and into the jury’s parlor. It would not then be right to take the case from the jury on the ground that at some previous point in the trial the plaintiff’s case was insufficient. Professor Green puts it like this:

If the motion [by the defendant for a directed verdict at the close of the plaintiff’s case in chief] is overruled, and the defendant proceeds to introduce evidence, a new motion must be made at the conclusion of the entire evidence in order to lay a proper foundation for an appeal. The reason for this is that, in ruling on the motion, the court must consider all of the evidence, and the nature and quality of the evidence at the conclusion of the entire case may differ radically from the evidence as it existed at the close of the plaintiff’s case. [M. Greene, Basic Civil Procedure, p. 200 (2d Ed. 1979) footnotes omitted.]

Thus, in our modern practice, the defendant’s second directed verdict motion is not a mere continuation, renewal or preservation of the first directed verdict motion. By presenting evidence and thus permitting cross examination and rebuttal the defendant allows the case to progress and should not then be heard to say the case of his adversary was insufficient at its close.

The appellee argues here that his evidence contributed nothing to the plaintiffs case. However, the appellee did not contend the denial of the motion at the conclusion of all the evidence was improper.

I concur in the denial of rehearing.


author: Darrell Hickman, Justice.

text:
    Elke GILBERT v. DIVERSIFIED GRAPHICS et al.
    85-54
    691 S.W.2d 162
    Supreme Court of Arkansas
    Opinion delivered June 17, 1985
    [Rehearing denied July 15, 1985.]

      The McMath Law Firm, P.A., Phillip H. McMath and James Bruce McMath, for appellant.

      Matthews & Sanders, by: Gail O. Matthews and Marci L. Talbot, for appellee.

       George Rose Smith and Dudley, JJ., not participating.-

   Darrell Hickman, Justice.

At about 7:30 on an icy morning in January of 1982, Elke Gilbert’s automobile was struck in the rear by a vehicle driven by an employee of Diversified Graphics. Gilbert claimed personal injuries and property damage and sued Diversified Graphics for $300,000. She alleged that she had $12,895.81 in actual damages. The jury returned a verdict in her favor for $6,700. Gilbert moved for a new trial on the basis that the verdict was too small and against the preponderance of the evidence. The motion was denied, and it is from that ruling that Gilbert appeals. We affirm.

Under A.R.C.P. Rule 59(a)(5) the inadequacy of the recovery is a ground for a new trial even where there is no other error. Where the argument is the inadequacy of the verdict, we will sustain the trial court’s denial of a new trial unless there is a clear and manifest abuse of discretion. Warner v. Liebhaber, 281 Ark. 118, 661 S.W.2d 399 (1983).

Gilbert was a secretary at the University of Arkansas Medical School at the time of the accident. She also worked at a janitorial service she owned. After the collision she missed two weeks of work. In September she quit her secretarial job, allegedly because of pain she was experiencing from the accident, but at that point began working at her janitorial service full time. Her arm and neck continued to bother her, and it was eventually discovered that she had a herniated disc in her neck for which she had surgery in December of 1982. Her doctor testified that she had 15% permanent partial functional impairment. She received further treatment in September of 1983 for low back pain. The actual bills for Gilbert’s medical costs are not in the record but she alleges them to amount to $11,671.47 and that figure is not disputed.

Gilbert speculates that the jury found that she had sustained the actual damages she claimed and added $241.44 for pain and suffering; according to Gilbert, the figure of $6,700 was arrived at by reducing the above total by 49% because of a finding that Gilbert was contributorily negligent. She concedes that the jury has the right to reduce the judgment upon a finding of contributory negligence, but argues that the award of $241.00 is so nominal as to amount to a refusal to award damages for pain and suffering. We do not agree that Gilbert’s formula is the only way the jury could have arrived at the $6,700 award.

The jury could have disbelieved Gilbert’s testimony about her continuing pain. Testimony of interested parties is taken as disputed as a matter of law. Waterfield v. Quimby, 277 Ark. 472, 644 S.W.2d 241 (1982). It was revealed that Gilbert had had back trouble before, and that just before she sought further treatment in September of 1983, she had fallen. X-rays taken within days after the automobile accident showed that Gilbert had some degenerative disc disease prior to the accident. The evidence also showed that the automobile driven by Gilbert had been involved in a prior accident.

A fair-minded jury could easily have found that all of Gilbert’s medical costs, disabilities and property damage were not attributable to the accident with the Diversified Graphics vehicle. See Taylor v. Boswell, 272 Ark. 354, 614 S.W.2d 505 (1981).

We do not find a clear and manifest abuse of discretion in the trial court’s denial of Gilbert’s motion for a new trial.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Douglas Richard MORGAN v. STATE of Arkansas
    CR 84-211
    691 S.W.2d 164
    Supreme Court of Arkansas
    Opinion delivered June 17, 1985

      David M. Clark, for appellant.

      Steve Clark, Att’y Gen., by: Velda P. West, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

A.D. and Hattie Chrisco were asleep in the bedroom of their home in a remote section of Izard County when they were awakened by an intruder between 11:20 and 11:30 on the night of February ?, 1984. After a confrontation, the intruder escaped into some woods beside their house. A.D. had not observed the intruder but Hattie had. She saw that he was a young man, average height, average build, wearing a dark jacket and a baseball cap. A.D. subsequently found that his wallet containing eight to ten dollars had been stolen. In addition, he found a knife blade from one of their kitchen knives in the covers of their bed. The knife handle was found in the hallway. The Chriscos called the Sheriff’s office to report the crimes and give a description of the culprit. Hattie later discovered that she had been stabbed in the side.

Sheriff Yancey knew that the appellant had been living in Izard County for about a year, and that he was on probation for burglary in Chicago. He knew that appellant did not own a car, and the physical description fit appellant. He also knew that one week earlier a prowler had been reported in another nearby rural area between midnight and 1:00 a.m., and, soon after the report, the Sheriff found appellant hitchhiking nearby. The Sheriff knew that, at that time, the appellant had on a dark jacket and a baseball hat. The Sheriff also knew that Tim Porter, a minister, had befriended appellant in the past. Rey. Porter’s home was two miles from the scene of the crime. Based upon this information, the Sheriff instructed the deputy sheriffs to be on the lookout for appellant and to bring him in for questioning.

Deputy Whiteaker was sent to the remote area near Rev. Porter’s home. He could hear dogs barking in one area, and then he heard barking near Porter’s home. He drove to within 200 yards of Porter’s house and stopped his car. He saw someone in the carport and could hear loud voices. It was 2:45 in the morning. The person in the carport had on a dark jacket and a baseball cap. The deputy got out of his car and asked the person in the carport to identify himself. Appellant identified himself. About that time Reverend Porter, from inside his home, told the deputy, “Doug has stated that he had done something bad and needs to talk to somebody.” The deputy arrested appellant and read him his Miranda rights. Appellant immediately responded: “I’m in a lot of trouble, ain’t I? I don’t know why I did it. I didn’t mean to hurt anybody.” The deputy did not attempt to interrogate appellant but, rather, drove him to the Sheriffs office for the Sheriff to interrogate him. There, he gave a confession which, in part, is as follows:

I started walking up the road and I saw a house close to the road. I went up to the house thinking I could warm up. I looked inside the cars out front, but I didn’t want to take one because I was afraid I would get picked up. I decided to go up to the house and see if anyone was home. I didn’t know who lived there. I knocked on the door but no one answered. I tried the door and it was open. I poked my head in and said hello. Nobody said anything and I went on in. I saw a fire burning to my right, and a flashlight to my left. I picked up the flashlight and started looking to see if anyone was in the house. I cupped my hand over the light so it wouldn’t be very bright. I started down a hallway and opened a door. There was someone asleep in the room. I thought it was a kid. I eased the door back shut and went on down the hall to the next door. It was open. There was two people asleep in the bed. I saw- a pair of pants on the floor by the bed. When I saw the pánts I decided to see if they had any money in them. I went through the pockets and found a wallet. I left the room and started to leave the house. I got out to the porch and waited for a few minutes. When no one woke up I decided to go back in. I turned the bathroom light out but I’m not sure if it was the first time or the second time. I went back to the bedroom and stood for a few minutes. I decided I’d better get something in case they woke up. I went into the kitchen and found a knife in one of the drawers. I wasn’t intending to use it for anything except to scare them. I went back to the bedroom. I opened up the closet door and looked around but I didn’t get anything out of there. I went over, to the dresser and started to go through it but I heard a noise from the bed. I whirled around and hit the lady with the knife. The knife broke and I ran out of the room. Both people were shouting but I didn’t hear what they were saying because I was too busy trying to get out of the house. I ran down the stairs and out toward the highway. I fell in the ditch and someone started shooting. I think there were five or six shots. I ran down the road until I saw car lights coming and I ducked into the woods. I followed a dirt road for a little ways until I came to a chicken barn. There was an old pickup truck sitting behind the barn. I got in the truck and started it up, I drove the truck for maybe a quarter of a mile and left it. I counted the money while I was at the truck. There was ten dollars ($ 10.00) in the wallet, a five and five ones. I started walking again until I came to a field where there were some horses. I dropped the wallet there beside the horses. I finally came out to the highway in Sage. I ran over behind Tim Porter’s house and hid in the bushes. I slept for a little while, and then went back down to Tim Porter’s house. I threw the money up on top of Tim’s house because I didn’t want to get caught with it. While I was talking to Tim the deputy drove up.

The morning after the confession was given the officers found A.D.’s wallet on the Wayne Garner farm and also found the pickup truck which appellant had stolen from Wayne Garner. Later they found ten dollars in bills behind the Porter house.

Appellant argues that the trial court erred in not suppressing his confession because the officers did not have probable cause to arrest him. See Wong Sun v. United States, 371 U.S. 471 (1966). The argument is without merit because the officers did collectively have probable cause. Probable cause exists where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed by the person arrested. Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981). Here, the officers knew appellant had been a burglar in the past; they knew a week earlier he had been in a remote area where a prowler had been reported and, at that time, he had on a dark jacket and a baseball hat; they knew that at 11:20 to 11:30 p.m. the intruder in this case, again afoot in a remote area, had on a dark jacket and a baseball hat; they knew that at 2:45 a.m. appellant was spotted outside a minister’s home wearing a dark jacket and a baseball hat; they knew the appellant was within walking distance of the crime scene; and they knew the minister said, “Doug has stated that he done something bad. . .’’Clearly, probable cause existed.

Appellant next argues that the trial court erred in not granting appellant’s motion for a directed verdict because of the state’s failure to offer proof independent of the defendant’s confession to each and every element of the crimes charged. The trial court was correct. Ark. Stat. Ann. § 43-2115 (Repl. 1977) provides:

A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed.

The statute does not require the corroborating evidence to be independently sufficient to support a conviction. Instead it requires only corroborating evidence that such an offense was committed. Derring v. State, 273 Ark. 347, 619 S.W.2d 644 (1981). In this case, prior to admission of the confession, the proof showed the knife blade, the wound, the missing wallet, and the eyewitnesses. After the confession was admitted, it was further corroborated by proof of the recovery of the stolen truck, the recovery of the stolen wallet, and the recovery of bills equaling the amount of the stolen money. The corroboration was sufficient.

Affirmed.


author: Robert H. Dudley, Justice. Steele Hays, Justice,

text:
    Elzie Leta WARE v. Hilda Jean Ware GREEN, et al.
    84-262
    691 S.W.2d 167
    Supreme Court of Arkansas
    Opinion delivered June 17, 1985
    [Rehearing denied July 15, 1985.]

      Spencer, Spencer & Depper, for appellant.

      Jay E. Hoggard, for appellee.

       George Rose Smith, J., not participating.

   Robert H. Dudley, Justice.

The testator devised a life estate with a power to sell when the devisee no longer had enough money to maintain “the standard of living to which she is accustomed.” Appellant, the devisee, filed a petition for declaratory judgment asking the court to declare whether her power to sell was exercisable only upon an order by the court or whether it was exercisable upon her judgment with the court review being limited to whether she acted in bad faith. We hold that the power devised to appellant may be exercised upon her judgment and a subsequent court review, if any, is limited to whether she used bad faith in making that judgment.

Neither party raises an issue about the interest which appellant may sell. In Patty v. Goolsby, 51 Ark. 61, 9 S.W. 846 (1888), we held that the widow could only convey her life estate when the will provided “I give and bequeath unto my beloved wife . . .all my. . .lands. . . to have and to hold during her natural life, or until she may think proper to marry, with full power to sell and dispose of such property as she may think proper; . . . .” However, in Pearrow v. Vaden, 201 Ark. 1146, 148 S.W.2d 320 (1941), we held that the widow could convey the fee when the devise provided “To my beloved wife. . .all of my. . .property . . . during her lifetime with the right to dispose of any or all of said property in the event that her financial condition or health make it necessary to do.” In Pearrow v. Vaden, supra, we pointed out a distinction between the cases — in Patty v. Goolsby the power to convey could be defeated by remarriage, while in Pearrow v. Vaden the power could not be defeated. We concluded Pearrow with the following:

We think the proper construction of the will does not thus limit the interest which the widow may convey. Had she been given a life estate without any power to convey, she could have sold that estate. We think the title the widow may convey is not confined to her life estate, but covers the fee title to so much of the property as may be subject to the power. If the will conferred the right only to sell the life estate, the power is meaningless, as she had the right otherwise to sell her life estate, and the provisions of the fourth paragraph for the division of all property remaining at the death of the widow would be equally meaningless.
Paragraphs 2 and 4 of the will must be read together, when so read effect may be given to them only by holding that it was the testator’s intention that his children should divide among themselves, in the proportions indicated, any of the devised property which the widow had not conveyed in her lifetime for the permissible purposes, because that — and that only — would be the “property remaining.”

The foregoing discussion is not meant to indicate, one way or the other, what interest the appellant may sell. The issue was not raised below, nor has it been briefed or argued on appeal. However, it is necessary to set out because if the appellant only attempts to sell her life estate, it is not necessary for her to exercise the power set out in the devise, and this case is moot, but, if the appellant attempts to sell the fee it is necessary for her to exercise the power and the point of this appeal becomes an issue.

The pertinent part of the devise in the case at bar provides:

FOURTH: All my real property, including my surface ownership, my mineral interest and my royalty interest, I give, devise and bequeath unto my beloved wife, Elzie Lata Ware, to be used and enjoyed by her during the term of her natural life or so long as she shall remain my widow. During such period of time she shall have the following powers and rights:
(a) . . .
(b) . . .
(c) . . .
(d) In addition thereto, I hereby grant unto my wife the power to sell or otherwise dispose of my realty in part or in whole subject to the following terms and conditions:
(1) When my wife does not have adequate money to provide her with the standard of living to which she is accustomed, then she shall have the right to dispose of any or all of my land by first giving written notice to my children, James Dolas Ware and Hilda Jean Ware Green, that she intends to sell such property and they shall be given the first option to purchase said property.
(2) In the event either or both of my children shall desire to purchase said property, then my wife shall sell said property to either or both of them.
(3) In the event my children do not desire to purchase the property, then my wife shall have the full power to sell the property to another person at a sum of no less than that which was offered to my children.
(4) Any proceeds from said sale shall be the sole and absolute property of my wife and she shall use said money only for her support and maintenance.
(e) Upon death of my wife or her remarriage, then my realty, or whatever shall be remaining, I give, devise and bequeath as follows:
(1) An undivided one-half of my realty, I give, devise and bequeath unto my daughter, Hilda Jean Ware Green, and her children, Deborah Ann Green, Jackie Wilson Green, and Robby Green, all to share and share alike.

(2) An undivided one-half of my realty, I give, devise and bequeath unto my son, James Dolas Ware, and his children, Ricky Lynn Ware and Rhonda Kay Ware, all to share and share alike.

The appellant’s point of appeal is that she should be able to exercise the power without prior court approval. The appellees counter that the power may be exercised only after a court finds that the restrictions or conditions have been met. The trial court ruled that the power could be exercised only after court approval. We modify that ruling and hold that the power may be exercised upon the decision by the devisee that she no longer has enough money to maintain the standard of living to which she is accustomed, and her decision will be reversed only in the event it is made in bad faith.

While the issue is one of first impression for this Court, it has been frequently litigated in other states. 51 Am. Jur.2d, Life Tenants and Remaindermen, § 67, in part, provides an overview of the decisions as follows:

Where a grant or devise of power to a life tenant is limited to a sale or other disposition to meet some contingency which may or may not arise, as where power is given to sell, transfer, or dispose of the property or as much thereof as may from time to time be needed for the life tenant’s support and maintenance, the question of who may determine when the contingency so provided against has arisen, thus maturing the power to convey, is one which has frequently occupied the attention of the courts. In the great majority of cases, it is held that if the grant of power is otherwise full or general in its terms and the determination of the question is one which involves the exercise of judgment and discretion, the decision made in good faith by the life tenant himself is final. It is likewise held in these cases that the amount required or used by the life tenant for his support and maintenance rests entirely in his honest judgment and discretion, which cannot be controlled or limited by the courts in the absence of bad faith or fraud. This principle has been applied, among other instances, where a testatrix gives the residue of her estate to her husband “during his life, with full power to sell, transfer and dispose of the same or as much thereof as may from time to time be needed for his support and maintenance during his said lifetime,” with remainder over to her children; where a will provides that the husband of the testatrix was to have the use and income of all her property, subject to the bequests therein made, during his life, “and any part of the principal that may be needed for his support;” where a will gives all the testator’s property left after the payment of debts to his sister and his niece, “to use or sell in any way they may wish for their support,” what is left to go to the testator’s brother and sisters;” where a testator bequeaths the residue of his property to his wife, “to her use and behoof and dispose of for her maintenance during her natural life;” and where a will gives the residue of the estate to the testator’s wife, “to have and to hold and enjoy for and during her natural life, with full power to make such disposition thereof as may be necessary for her own comfort and support.” (footnotes omitted)

Cases on the subject are annotated in 2 A.L.R. 1243, S. 27 A.L.R. 1381, 69 A.L.R. 825, 114 A.L.R. 946 and 31 A.L.R.3d 169.

Rarely are two wills found which are exactly alike, and the construction of one may not be helpful in the construction of another. The purpose of construction is to determine the intention of the testator, and that intention must be derived from the language employed in the will.

All of the provisions of the Fourth paragraph of the will before us must be construed together. The testator first devised a life estate with a power to sell. Then, in section (d), he provided “I hereby grant unto my wife the power to sell the property ... subject to the following terms and conditions.” In (d)(3) he then provided “In the event my children do not desire to purchase the property, then my wife shall have the full power to sell the property. . . .” The foregoing language indicates that the testator intended for the devisee to be able to exercise the power. Language which was not used by the testator is also significant. If he had intended that the power should be exercised only after a judicial determination, with its delays and expenses, he would have said so. It appears that the intent of the testator was to clothe his widow, and not the court, with the power to sell.

Paragraph Four (d)(4) is consistent with the notion of a testator who trusted his widow to act as he directed: “Any proceeds from said sale shall be the sole and absolute property of my wife and she shall use said money only for her support and maintenance.” It is meaningful that the testator required neither an accounting nor a bond of her.

Finally, we look at the four corners of the whole instrument to determine the testator’s intent. Martin v. Simmons 1st Nat’l. Bank, 250 Ark. 774, 467 S.W.2d 165 (1971). If his primary purpose was to benefit the remaindermen, with only a secondary concern to the life tenant, then the life tenant’s power to sell must be strictly construed so as not to compromise unjustly the rights of the remaindermen. However, if the primary purpose was to benefit the life tenant, with merely a provision for the orderly disposition of any property that might remain so that it will not pass intestate, then the life tenant’s power to sell must be liberally construed. The expressed intent of this will was primarily to provide for the life tenant and then to provide for the orderly disposition of anything remaining. Paragraph Four (c) provides: “Upon the death of my wife or her remarriage, then my realty, or whatever shall be remaining, I give, bequeath and devise as follows: . . . .”

The language of this will is inconsistent with the idea that a court, instead of the life tenant, would determine when the power to sell might be exercised. We hold that the life tenant, rather than the court, may determine when the power is to be exercised, and that decision may be set aside only if exercised in bad faith. However, the devisee’s power of sale is subject to the requirement that she first notify the testator’s children of the intent to sell and that she give the children the first option to purchase the land, as set out in the will.

Affirmed as modified.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I have no problem with the general rule expressed by the majority, which permits a sale by a life tenant without prior approval by a court, where the language of the will makes it clear the testator intended that result. I submit, however, the rule is misapplied here, as both the four corners of the will and the circumstances of the case suggest the testator did not intend an unlimited power to be exercised at the discretion of the appellant. The Chancellor was entirely correct and I would affirm the decree.

Rules of construction of wills are used to determine the intent of the testator in the absence of a clear expression of intent. They are never to be used to circumvent such intent, even where the intent is only implied from the four corners of the will. See Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977).

It is but the statement of a commonplace rule of law to observe, in the interpretation of the provisions of a will, that the intention of the testator as therein expressed must prevail. The statute of this state commands that all courts and others concerned in the execution of last wills shall have due regard to the directions of the will and the true intent and meaning of the testator in all matters brought before them. Bussoner v. Marsh, 140 Or. 331, 12 P.2d 329 (1936).

The general rule, stated in 51 Am.Jur.2d 293, is if the grant of power to sell or convey is otherwise full or general in its terms and the determination of whether the condition for the exercise of the power involves the exercise of judgment and discretion, the life tenant has the exclusive right to make that determination, if done in good faith.

The rule has two constituents: the power to dispose of the property must be full or general in its terms, and the fulfillment of the condition must not be objectively defined by the instrument and, therefore, judgment or discretion must be exercised in the decision process.

The second aspect of the rule is applicable here: this will provides no standard for determining when the wife (Appellant) does not have enough to maintain herself according to her accustomed standard. In concluding that the wife has the power to make the determination in light of the general rule, the majority is overlooking an aspect of the rule which is absent here — the power to sell, rather than being full and general, is impliedly if not specifically limited under the wording of the will. Admittedly, a restriction that the proceeds from a sale be used for the support and maintenance of a life tenant, taken alone, has not been considered a significant limitation so as to avoid the general rule. However, in this case the wife’s right to sell was subject to a requirement that she first notify the testator’s children of an intent to sell and that she give the children the first option to purchase the property. And if the land was sold, it was not to be sold for a price less than was offered by the children. Additionally, the proceeds of any sale were to be used “only" for the support and maintenance of the wife. In sum, the appellant’s power of sale from the four corners of this will falls short of being full and general.

In the cases relied on by the majority opinion from Am. Jur.2d and A.L.R., there is no indication of any restriction on the power to sell. The language typically found in those cases is notably lacking here (“as she may see fit,” “if in her opinion”), language evidencing an intent by the testator that the life tenant have unbridled discretion in determining when her station in life is reduced. No such wording appears in this will.

An early case from Massachusetts is in point, notwithstanding the distance in time, Minot and Others v. Prescott, 14 Mass. 496 (1817). The last will of J. Betton on July 17, 1776 devised to his wife, Mary, the income from his real and personal estate during her life and “if not sufficient to support her comfortably,” then the power to sell any of his estate for that purpose. In December, 1776, Mary granted the premises, and contended in the ensuing litigation that she was the sole judge of the insufficiency of the income to support her comfortably, citing 2 Wilson 6. Chief Justice Cushing wrote for a unanimous court:

This is not a fee simple. The power is not to dispose of at will and pleasure, as in the case cited from Wilson, but on the happening of a particular event, viz., the income proving insufficient to support the wife comfortably. This is a precedent condition; and was so adjudged in the case of Dike v. Ricks, where the clause in the will was substantially the same with that in the present case. The happening of this condition ought to have been stated in the deed to Prescott, as well as shown in the verdict, in order to entitle the defendant to judgment. It is a matter which can be traversed; and as the jury have found that there was a sufficiency of personal estate for the comfortable support of the widow, this conveyance cannot be supported. I am therefore clearly of opinion that the demandants ought to have judgment on this special verdict.

Finally, the circumstances of each case are subject to scrutiny in resolving these disputes (51 Am.Jur.2d, Life Tenants and Remaindermen, § 66, p. 294). Here the testator had been married for many years to a first wife, who died in 1973 after their children were grown to middle age. He and the appellant were married only five years and while the marriage was doubtless a happy one, it is clear the decedent wanted his children provided for. The land in question, a farm of some 125 acres, had been bought when the children were small and had been their home from infancy. The Chancellor heard a wealth of testimony that all the family had worked hard to improve the place and the testator wanted the children to have the land. His findings were not clearly erroneous and should be affirmed.


author: Steele Hays, Justice.

text:
    Keith HARROD v. STATE of Arkansas
    CR 85-35
    691 S.W.2d 172
    Supreme Court of Arkansas
    Opinion delivered June 17, 1985
    [Rehearing denied September 16, 1985.]

      Arnold, Hamilton & Streetman, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.

       Purtle, J., not participating.

   Steele Hays, Justice.

Appellant was convicted of manufacturing six pounds of marijuana, a controlled substance, fined $25,000, and sentenced to four years in the Department of Correction. He was also convicted of possession of marijuana and fined $1,000. On appeal he argues five points of error. We affirm the judgment.

I

Appellant insists that on August 2, 1983, when the alleged offenses occurred, they were neither felonies nor misdemeanors under Act 590 of 1971, [Ark. Stat. Ann. § 82-2601 et seq. (Repl. 1976)], as amended by Act 417 of 1983 [Ark. Stat. Ann. § 82-2617(a) (Supp. 1983)]. Appellant cites Schedule VI of Act 590, which provides that an offense involving less than ten pounds of marijuana is subject to a sentence of imprisonment of four to ten years. But because the words “in the penitentiary” are absent, and because Schedule VI does not expressly state the listed offenses are felonies, appellant claims they are not felonies. He relies on Bennett v. State, 252 Ark. 128, 477 S.W.2d 497 (1972).

We decline to address the point. Appellant agrees the issue was not presented to the trial court, but he urges that under our holding in White v. State, 260 Ark. 361, 538 S.W.2d 550 (1976) the error is jurisdictional and can be raised at any time. However, in oral argument appellant conceded the trial court would be without subject matter jurisdiction only if the offenses were neither felonies nor misdemeanors, and while we do not decide the felony issue, we reject the argument that these offenses are neither. It follows the appellant should have preserved the point for appellate review by first presenting it to the trial court. Wickes v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

II

Appellant moved to quash the jury panel because the procedures prescribed by the Arkansas Jury Wheel Act of 1969, Ark. Stat. Ann. § 39-201.1 et seq. (Supp. 1983) were not followed. He charges that jurors were selected for a term of court rather than for the calendar year 1984, and because individuals whose names were selected by lot from the wheel were excused without any notation being made as to why they were excused. His motion was denied by the trial court.

On appeal, appellant argues additional violations, but we will consider only those made to the; trial court. Neither point establishes reversible error, as there was nothing detrimental to the jury selection process in either case. The fact that jurors were called for a February 24, 1984 term of court rather than for the calendar year in general does not offend the spirit of the jury wheel act. It is undisputed that the requisite number of names was placed in the wheel.

The failure to list the names in the jury book of the twenty-three veniremen who were excused from serving as jurors, or to record the reasons for their excusal, is of greater concern. However, the names were recorded in a file retained by the clerk, as well as the reasons for excusal in all but a single instance, on individual questionnaires, which were also kept in a separate file. Thus, this information was available though not in the precise form contemplated by the jury wheel act.

We held in Horne v. State, 253 Ark. 1096, 490 S.W.2d 806 (1973) and in Shelton v. State, 254 Ark. 815, 496 S.W.2d 419 (1973), that the requirements of the jury wheel act are mandatory. But the deviations in those cases were more significant. In Horne, the circuit judge did not require a new list of jurors on entering a new year, he simply instructed the commissioners to add seventy-four names to the wheel, to correspond to the number of names withdrawn from the wheel during the previous year. In Shelton, the proof showed that a chancellor withdrew ninety-six names from the wheel for use in eminent domain cases awaiting trial. The names were not placed in the jury book and after their use in the condemnation cases, the names were discarded so that they were no longer available for use. There were other infractions in Shelton, but out criticism was aimed primarily at the failure to return the ninety-six jurors to the panel for future use in other trials.

After Horne and Shelton, Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977) was decided. Huckaby is factually closer to this case, in that the jurors names were not recorded in the jury book, but were kept on a separate list. In Huckaby we recognized that some sections of the jury wheel act are more important than others and not every provision is mandatory. We found substantial compliance in Huckaby and held that to be sufficient. We think the same is true of the procedures followed here.

1 — I hH

Appellant was granted a change of venue from Bradley County, where he was charged, to Drew County, where he was tried and convicted. Sentencing was postponed and then for reasons not explained in the record, sentencing was conducted in Bradley County, where appellant was permitted to present the testimony of several character witnesses.

Appellant argues that Bradley County lacks jurisdiction to sentence him on a Drew County verdict. We find no merit in appellant’s assertion that he had no opportunity to object. He was present at the sentencing with counsel and could hardly have been unaware that he was in Bradley County rather than Drew County. Had he objected to the proceeding, doubtless sentencing would have been transferred to Drew County. Renfro v. State, 264 Ark. 601, 573 S.W.2d 53 (1978).

IV

We find no merit in appellant’s next argument, that the trial court erred in permitting an expert witness for the state to testify to the weight of the marijuana and in admitting the marijuana in evidence. The witness, a chemist from the State Crime Laboratory, testified he took random samples from the two bags, which included “small portions of stems,” and identified the material as marijuana based on laboratory tests. He estimated the stems to constitute ten to forty percent of the material in the bags.

Because the witness could not state precisely what percentage of the mass was marijuana stems, as opposed to leaves, appellant objected to the introduction of the marijuana, arguing that only the active marijuana plant was admissible. Article I, Section 1 of the Controlled Substance Act defines marijuana as all parts of the plant cannabis containing THC, but not including the mature stalks or fibre produced from the stalks. There was no evidence the mass contained mature stalks of marijuana plants, or fibre produced from stalks, and the witness testified that all of the material contained THC, the active ingredient in marijuana. The admission of the evidence was not error.

V

Appellant’s remaining point concerns a witness called by the defense, Carrie Mae Sellars. The name of this witness was not disclosed to the state in accordance with a pre-trial order and the state objected when she was called to testify. A recess was taken to give the state an opportunity to interview Ms. Sellars and there was considerable discussion in chambers concerning the testimony she was expected to give. Ms. Sellars would have testified that her brother-in-law, Buddy James Sellars, worked on appellant’s farm in 1983, that he told her he was convicted of selling “dope” to an undercover agent and given a three year suspended sentence. Sellars violated his parole and on May 7, 1984 was sentenced to four years in the penitentiary. The inference of this proof, we take it, would have been that Sellars could have grown the marijuana rather than the appellant.

At one point in chambers the trial judge indicated an intention to permit the testimony, but then changed his mind with a comment the proffered testimony was hearsay.

Appellant argues the proof should have been admitted as an exception to the hearsay rule, as a declaration against interest by an unavailable witness. Unif. R. Evid. 804(b)(3). The state contends the statement, if made, was not against the interest of Sellars since he had already been convicted and sentenced for the offense.

We need not settle that dispute, as the trial court also referred to the failure to disclose the name of the witness and the remoteness of the proof to the issues on trial as a basis for its rejection and we find no abuse of discretion on either ground. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980).

The judgment is affirmed.

       Page 516 of the record.


author: Alston Jennings, Special Chief Justice.

text:
    Mary Lee ORSINI v. STATE of Arkansas
    CR 84-61
    691 S.W.2d 175
    Supreme Court of Arkansas
    Opinion delivered June 17, 1985

      John H. Adametz, Jr. and William H. Craig, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Alston Jennings, Special Chief Justice.

Appellant, Mary Lee Orsini, was found guilty of first degree murder in connection with the death on March 11, 1981, of her husband, Ron Orsini, and she appeals from the judgment of the trial court by which she was sentenced to life imprisonment. As grounds for reversal, appellant contends: (1) the information filed against her by the prosecuting attorney should have been quashed or dismissed, (2) there was no substantial evidence to support the jury’s finding, (3) rulings of the trial court on several issues regarding the admission or exclusion of evidence were erroneous, and (4) the Court erred in instructing the jury, over the objection of appellant, on accomplice liability.

We hold that there was no substantial evidence to support a finding that appellant was an accomplice in the commission of the offense of first degree murder by some other person, and the trial court committed prejudicial error by instructing the jury, over the objection of appellant, pursuant to AMCI 401 and by amending AMCI 1502 by adding the language “or an accomplice”.

The instruction of which appellant complains reads as follows:

“In this case the State does not contend that Mary Lee Orsini acted alone in the commission of the offense of murder 1st degree. A person is criminally responsible for the conduct of another person when he is an accomplice in the commission of an offense.
“An accomplice is one who directly participates in the commission of an offense or who, with the purpose of promoting or facilitating the commission of an offense, aids, agrees to aid, or attempts to aid, the other person in planning or committing the offense.
“ ‘Purpose — a person acts with purpose with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.’ ”

Although the instruction avers that “the State does not contend that Mary Lee Orsini acted alone in the commission of the offense”, the State did, in fact, so contend, and the giving of the accomplice instruction permitted the State to argue alternatively that appellant murdered her husband or that someone else murdered him with her aid. The instructions permitted the State to maintain simultaneously that appellant killed her husband because no one else could have done it and that if someone else killed him she must have participated in the crime. In many situations such alternative possibilities are properly submitted to the jury, but in this case there is no substantial evidence to support the theory that the appellant was aided by an accomplice. We briefly review the testimony that might be regarded as supporting the second possibility.

There was testimony of a neighbor with regard to movements of an automobile on the street near appellant’s home at about the time of the shooting from which one might conclude that some person had left the vehicle and then reentered it a few minutes later. Even assuming that conclusion to be correct, there is absolutely no evidence that the Orsini home was entered by any such person. Nor is there any evidence of any kind that appellant participated in any way with anyone else in the commission of the crime. The state relies on the fact that there was no evidence of forcible entry into the home to support an inference that appellant must have aided another person in entering, assuming, of course, that some other person did enter. The State also relies on conduct and statements of appellant subsequent to the death of her husband to support the giving of the accomplice instruction. Such evidence, however, does not point in any way to the existence of another offender, but rather tends to support the State’s contention that appellant was herself the perpetrator. It is obvious that before the jury could find that appellant was an accomplice to the crime of murder it would be necessary to speculate first that some other person killed the decedent and to speculate further that appellant aided such person. There is no substantial evidence to support such a finding, and the giving of the accomplice instruction was prejudicial and erroneous.

We do not mean to say that there may not be circumstances under which it would be appropriate to permit a jury to consider whether the defendant committed the crime in person or was an accomplice. We merely hold that the facts of this case do not permit the alternative submission.

Since we are reversing because of the giving of the accomplice instruction, we need not consider the assignments of error in admitting and excluding evidence, but we do not find any merit in the appellant’s contentions on those issues.

The death of Ron Orsini was investigated by a grand jury and a No True Bill was returned in July of 1981. On January 24, 1983, the prosecuting attorney filed a felony information charging appellant with first degree murder. Amendment 21 to the Constitution of the State of Arkansas permits the initiation of prosecution by information filed by the prosecuting attorney. Appellant, however, relies upon Ark. Stat. Ann. § 43-922 which provides that a charge can be again submitted to a grand jury after a No True Bill only upon direction of the Court. The issue is whether this statute prevents the filing of an information without court direction. We have not previously addressed this issue, but we now adopt the rule as stated in 42 C.J.S., Indictment and Information, §72, which reads as follows:

“In the absence of a constitutional or statutory provision to the contrary, the acts of the grand jury with respect to the findings of an indictment, are not binding upon the prosecuting attorney with respect to his filing an information, and an information may be filed, although the grand jury has investigated the case and refused or failed to find an indictment. ... A statute providing that, when a charge has been submitted to the grand jury and no bill returned, it shall not again be submitted without direction of the Court does not prevent an accusation by information after the grand jury has investigated the charge.”

See also Rea v. State, 105 P. 381, 3 Okl. Cr. 269.

Finally, we reject the contention of appellant that there was no substantial evidence to support the jury verdict. Certainly, the State’s case was not overwhelming, and the question of the sufficiency of the evidence is a close one. However, it is not for us to determine whether we, as jurors, might have reached a different result. It is our duty to determine whether or not there was substantial evidence to support the finding by the jury. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980); Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977).

The jury could have found that Ron Orsini was killed between eleven o’clock and midnight on March 11, 1981, by being shot in the crown of his head.by a weapon held at a distance of from three to eight inches. At the time he was found, the decedent was lying in a double bed, and it appeared that at some time another person had occupied the bed. The bullet was found on the bed next to the body, but no weapon was found. The doors and windows of the house were all locked, and there was no evidence of forcible entry, although there were marks on a door leading into the house from the garage which could have been made by a wood chisel that was found in the garage.

There were only three persons in the house on the night of March 11. They were the decedent, the appellant, and appellant’s daughter Tiffany. On the morning of March 12, the door to the bedroom in which decedent was found was locked, and appellant and her daughter left the house without attempting to enter the bedroom. The decedent’s pickup truck was in the driveway at the time.

After going to breakfast with her daughter and taking her daughter to school, appellant returned to her home, used an instrument of some kind to open the bedroom door, found the body of her husband and called the police.

Subsequently, a trace metal detection test was performed on appellant’s hands, and the results were negative for the holding or use of a weapon, but there were findings that were consistent with the holding by appellant of a wood chisel previously referred to.

The jury could have found that appellant told a witness that she had found a gun in the bed but couldn’t remember what she did with it. The evidence would support a finding that appellant, two days after the crime, reported falsely that someone had attempted to break into her house and that she made references to the possibility of large sums of money having been in the decedent’s bedroom, which references were untrue. The jury could have found that appellant dissuaded her daughter from attempting to enter the decedent’s bedroom on the morning of March 12 so that the body would not be discovered at that time. There was evidence that appellant falsely stated to her employer that her husband had bone cancer. The jury could have found that appellant was motivated to murder her husband by the prospect that his death might solve her financial problems.

Without detailing all of the evidence in the case, it is sufficient to advise that we cannot say that there was no substantial evidence to support the jury’s verdict. However, because of the error in instructing the jury, the conviction is reversed and the case remanded.

Jack Holt, Jr., C.J. not participating.


text:
    CITY OF JACKSONVILLE v. Charles MARTIN
    85-57
    692 S.W.2d 226
    Supreme Court of Arkansas
    Opinion delivered June 24, 1985

      Keith Vaughn, P.A., for appellant.

      Lesly W. Mattingly, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal is from an injunction granted in favor of the appellee, a police officer, against the City of Jacksonville, enjoining the city “from pursuing a practice whereby the plaintiff (appellee) is required to accept regular pay for hours in excess of 40 per week, . . . and, from treating any of the plaintiffs (appellee’s) normal days off as vacation.” This case was certified to us by the court of appeals as presenting a question of statutory construction. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(c).

Appellee filed suit in chancery court contending that the City of Jacksonville has devised a scheme and plan which violates the laws of the State of Arkansas as they relate to the working conditions of the appellee and that the appellant should be permanently enjoined and restrained from engaging in such conduct. He also asked that the appellant be directed to pay appellee’s attorney’s fees and costs.

Appellant responded to this complaint with an answer and motion to dismiss, stating in part, that appellee has an adequate remedy at law and that equitable relief is not appropriate. We agree.

The issue presented is a dispute over the proper method of determining overtime and vacation compensation. The controlling statute on compensation for police officers is Ark. Stat. Ann. §19-1712 (Repl. 1980). Whether or not the appellee is entitled to certain compensation for work in excess of 40 hours per week is a question of law for which there is an adequate remedy in circuit court. In addition to the appellee’s action at law for back pay, Ark. Stat. Ann. § 34-2502 (Repl. 1962) and Ark. R. Civ. P. 57 permit a declaratory judgment to be sought for the purpose of determining a controversy as to statutory interpretation. Injunctive relief however was not an appropriate remedy because it is not proper for the judiciary to issue a continuing injunction requiring the City of Jacksonville to determine the question of compensation correctly throughout the indefinite future. Young v. Clayton, 223 Ark. 1, 264 S.W.2d 41 (1954).

The appellant’s motion to dismiss should have been treated as a motion to transfer to circuit court. Accordingly we reverse the trial court and remand with instructions to transfer the proceedings to circuit court.

Reversed and remanded.

George Rose Smith, Jr., not participating.