text:
    COUNTY OF HOWARD, CITY OF EL DORADO, and PARKER’S CHAPEL SCHOOL DIST. OF UNION COUNTY v. Burl ROTENBERRY, as Chairman Workers’ Compensation Commission, et al.
    85-3
    688 S.W.2d 937
    Supreme Court of Arkansas
    Opinion delivered May 13, 1985

      G. Ross Smith, P.A., for appellant.

      Steve Clark, Att’y Gen., by: Robert R. Ross, Deputy Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The issues raised in this appeal concern the validity of Act 393 of 1983, codified at Ark. Stat. Ann. § 81-1348(e) (Supp. 1983). Our jurisdiction is pursuant to Sup. Ct. R. 29(1)(c).

Act 393 imposes a tax on' public employers payable to the Workers’ Compensation Commission to provide compensation benefits to the employees of those employers. Previously, benefits were provided by the state with no payment by these employers.

Act 221 of 1977, § 3, codified at Ark. Stat. Ann. § 13-2303 (Repl. 1979), requires that prior to any vote in any committee or on the floor of the General Assembly on an act which requires the expenditure of public funds, a fiscal impact statement must be filed with the chairman of each committee and the chief clerk of each House. No fiscal impact statement was filed prior to the vote on Act 393.

The appellants, public employers subject to the tax imposed by Act 393, filed suit in Pulaski Circuit Court seeking a declaratory judgment that Act 393 was void ab initio and seeking a refund of any money paid pursuant to the Act. The trial court held that the required filing of a fiscal impact statement is directory legislation only, rather than mandatory, and as such is not binding on the legislature. It is from that finding that this appeal is brought.

In a letter opinion, the trial judge found that whether or not the legislature could choose to ignore Act 221 in passing Act 393 turns on whether the former Act was mandatory legislation or merely directory. In conclusion, he stated:

This provision [Act 221 ] is not intended to give notice to or protect any interest of the municipalities or the counties. Its primary intent is to give the legislature additional facts to consider when passing bills that affect the fiscal affairs of counties or municipalities. This statute is not a limitation on the power of the Legislature, but merely a guide for the conduct of its business and for more orderly procedure, and thus directory only. In other words, the Act does not purport to limit the power of the Legislature to pass legislation having a financial impact on municipalities or counties but relates only as to the manner in which that power is to be exercised.
This Court does not believe that the Legislature ever intended to limit their power to the extent urged by the plaintiffs. While it cannot be denied that the plaintiffs would possibly benefit from an impact statement being filed, this is a self-imposed requirement on the Legislature — but only an additional step in the routine of passing legislation that can be ignored by the Legislature — as was done in this case — without casting any doubt on the validity of the subsequent legislation such as Act 393 of 1983.

Here we agree that Act 221 is merely a guide for the conduct of the legislature’s business.

Article 5, § 12 of the Arkansas Constitution provides that each house of the General Assembly has the power to determine its own rules of proceedings. In Bradley Lumber Co. of Ark. v. Cheney, Comm'r of Revenues, 226 Ark. 857, 295 S.W.2d 765 (1956), this court reiterated the rule that “[w]hen a bill is signed by the Governor and deposited with the Secretary of State, there arises a presumption that every requirement for its passage was compiled with.” The court further stated:

Nor is the presumption overcome by the fact that the House’s action in receding from the amendment should, under the House’s own rules of procedure, have been recorded in its journal. Subject to the restrictions imposed by the constitution each branch of the legislature is free to adopt any rules it thinks desirable. It follows, both as a matter of logic and as a matter of law, that each house is equally free to determine the extent to which it will adhere to its self-imposed regulations. . . [T]he validity of an act is not affected by the legislature’s disregard of its own rules . . . “The joint rules of the general assembly were creatures of its own, to be maintained and enforced, rescinded, suspended, or amended, as it might deem proper. Their observance was a matter entirely subject to legislative control and discretion, not subject to be reviewed by the courts.” [Citations omitted].

See also Reaves v. Jones, 257 Ark. 210, 515 S.W.2d 201 (1974).

Since the Arkansas Constitution does not impose a requirement that fiscal impact statements be filed before a vote may be taken by the General Assembly, there is no constitutional restriction on the legislature in this matter. To the contrary, art. 2, § 23 of the state constitution recognizes the right of the state to tax. This court has also recognized the power of the legislature to tax property in the state. Arco Auto Carriers, Inc. v. State, 232 Ark. 779, 341 S.W.2d 15 (1960), cert. denied, 365 U.S. 770 (1961). Here, the objects of the taxation are municipalities and counties which are entities created by the state. As such, the legislature was acting well, within its power when it imposed the tax provided by Act 393.

In determining whether legislation is directory or mandatory, this court has held that when the statute “relates to the manner in which power or jurisdiction in a public officer is to be exercised, and not to the limits of the power or jurisdiction itself, [it] may be, and often [has] been, construed to be directory.” Phillips v. State, 162 Ark. 541, 258 S.W. 403 (1924). Act 221 does not place limits on the legislature nor control its power to vote on matters which would have a financial impact on counties and municipalities. Rather it directs the manner in which that power is to be exercised by requiring that a fiscal impact statement be filed before a vote is taken. As such, it is directory legislation which the General Assembly is free to ignore if they so choose.

Our holding in support of the trial court’s findings makes it unnecessary to address the issue raised by the appellees in their cross-appeal.

Affirmed.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Charles D. RAGLAND, Commissioner of Revenues v. TRAVENOL LABORATORIES, INC.
    85-4
    689 S.W.2d 349
    Supreme Court of Arkansas
    Opinion delivered May 13, 1985
    [Rehearing denied June 17, 1985.]

      Timothy J. Leathers, Joseph V. Svoboda, Wayne Zakrzewski, Kelly S. Jennings, John H. Theis, Ann Kell, and Joe Morphew, by: Michael D. Munn, for appellant.

      Smith, Smith & Duke, by: Griffin Smith, Jr., for appellee.
   George Rose Smith, Justice.

In March, 1982, the State Revenue Commissioner audited the books of the appellee, Travenol Laboratories, with regard to its possible liability for the state use tax (compensating tax) for the period from January 1,1978, through August 31,1981. The audit resulted in the assessment of a deficiency for the period in question. Travenol paid the amount assessed and brought this suit to recover that part of the tax levied for the first 14 months of the period. It is stipulated by the parties that the only issue in this case is whether the assessment for that 14-month period, January 1,1978, through February 28,1979, is barred by limitations. The chancellor agreed with the taxpayer, holding that the three-year limitation provided by law for the collection of the sales tax (gross receipts tax) should be applied by analogy to the use tax. The Commissioner’s appeal comes to us under Rule 29(l)(c). We agree with the chancellor.

When Arkansas first levied a sales tax in 1941 or earlier, the legislature did not levy a companion use tax on tangible personal property purchased out of the state and used in the state. The sales tax act required every taxpayer to retain suitable records of his gross receipts for a period.of three years, Ark. Stat. Ann. § 84-1907 (Repl. 1980), and provided that the period for the collection of delinquent taxes was also three years. Act 386 of 1941, § 9, now superseded by Ark. Stat. Ann. § 84-4715(a).

When the use tax was first levied in 1949, the statute required the taxpayer to retain his records for three years, Act 487 of 1949, § 21, but apparently by oversight the statute did not contain the three-year limitation for the collection of delinquent use taxes. Nevertheless, according to the testimony, the revenue department followed the sales tax practice by observing a similar three-year period for the collection of the use tax. That continued until the three-year limitation was put into general effect by the Arkansas Tax Procedure Act of 1980. § 84-4715(a), supra.

The three-year limitation should properly be applied in this case. Ever since their enactment the sales tax and use tax acts have been complementary measures, designed to work together in levying a similar tax on goods either purchased here or brought in from other states. We may assume that the legislature has been aware of the revenue department’s long-standing practice of observing the three-year limitation as to both taxes, which in most instances were both paid by the same concerns, based on the same business records. The three-year record retention requirement has also been the same for both taxes. We are unwilling to say that the legislature intended to put the state’s taxpayers at a disadvantage by requiring them to keep their tax records for only three years while subjecting them to the hazards of a deficiency assessment for a longer period.

One other point. The 1980 Tax Procedure Act contained for the first time a provision that if a taxpayer understates a State tax by 25% or more, the limitation period is six years instead of three. § 84-4715(e). It is stipulated that Travenol understated its liability by more than 25%. The Commissioner argues that the new law should be applied retroactively even though the taxes now in issue became delinquent before the new statute was adopted. It is true that in some jurisdictions new periods of limitation are applied to claims not yet barred when the statute is passed, but after considering the matter in detail this court took the position that, since legislative acts are not presumed to operate retroactively, a statute extending the period of limitations will not be so construed unless the statute is expressly made retroactive. Morton v. Tullgren, 263 Ark. 69, 75, 563 S.W.2d 422 (1978). We adhere to that view. The appellant also argues that the catch-all five-year statute, Ark. Stat. Ann. § 37-213 (Repl. 1962), should be applied, but since we are holding that the pertinent tax laws are controlling, we need not consider the possible application of a general statute.

Affirmed.


author: Darrell Hickman, Justice.

text:
    David FAIN v. STATE of Arkansas
    CR 84-196
    688 S.W.2d 940
    Supreme Court of Arkansas
    Opinion delivered May 13, 1985

      Don Bassett, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

David Fain, an inmate in the Arkansas penitentiary, filed a petition for a writ of mandamus to require A. L. Lockhart, the Director of the Arkansas Department of Correction to recalculate Fain’s eligibility for parole. Fain had been determined to be not eligible for parole. The trial court properly denied the petition.

Fain had four convictions. In 1980 he was sentenced as a second offender under Act 93 of 1977, which determines parole eligibility, to a total of 21 years. For a subsequent crime, he was sentenced as a third offender to 24 years, to be served consecutively to the 21 year sentence. In 1982 he was sentenced to 20 years for a crime he committed while in prison. At this point he was properly determined to be a fourth offender and, therefore, not eligible for parole. Ark. Stat. Ann. § 43-2829(B)(5) (Repl. 1977). It was determined that he would have to serve the total of 65 years to which he had been sentenced.

Fain’s arguments are somewhat unique, but the thrust is that the last sentence, for 20 years, is the only valid sentence. To support that assertion he argues that Ark. Stat. Ann. § 43-2829 (B)(5), which codifies section 2(B)(5) of Act 93 of 1977, is void for vagueness and that the trial court which sentenced him to 20 years intended to discharge all of his prior sentences.

Ark. Stat. Ann. § 43-2829(B)(5) states:

Inmates classified as fourth offenders under this Act upon entering a correctional institution in this State under sentence from a circuit court shall not be eligible for parole, but they are entitled to good time as provided by law.

That statute is clear but is further clarified by Ark. Stat. Ann. § 43-2828(4) (Repl. 1977), which provides:

Fourth offenders shall be inmates convicted of four or more felonies and who have been incarcerated in some correctional institution in the United States, whether local, state or federal, three or more times, for a crime which was a felony under the laws of the jurisdiction in which the offender was incarcerated, prior to being sentenced to a correctional institution in this State for the offense or offenses for which they are being classified.

The constitutional test for vagueness was recently discussed in Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984), supp. op. on reh., 283 Ark. 434, 678 S.W.2d 395 (1984), where we held:

Due process requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.

The statute in question obviously meets that test. The proscribed activity is committing four or more felonies, and the result is ineligibility for parole.

We reject the argument that the trial court meant to discharge all sentences except the last one because even if that was the intent, a fact not supported by the record, the trial court had no power to affect sentences already put into execution. See Cooper v. State, 278 Ark. 394, 645 S.W.2d 950 (1983).

A parenthetical argument made by Fain is that Act 93 of 1977 wrongfully allows the Department of Correction to determine the length of sentence rather than the court. Determining parole eligibility according to the sentences imposed by the trial courts is the prerogative of the Department of Correction. See Jones v. State, 270 Ark. 328, 605 S.W.2d 7 (1980).

Affirmed.


author: Darrell Hickman, Justice

text:
    Steven W. GOODNIGHT v. Michael J. RICHARDSON and JENSEN CONSTRUCTION COMPANY
    84-314
    688 S.W.2d 941
    Supreme Court of Arkansas
    Opinion delivered May 13, 1985

      Guy Jones, jr., for appellant.
    Barberm McCaskill, Amster, Jones & Hale, P.A., for appellee.
   Darrell Hickman, Justice

Steven W. Goodnight sued Michael J. Richardson and Jenson Construction Company after being injured while he was a passenger in a vehicle driven by Richardson Goodnight alleged Richardson was negligent and exercised willful and wanton misconduct in the opration of the automobile. It was alleged that Jensen Consutction Company was negligent in failing to warn he motoring public of repairs it had undertaken on the highway. The trial court granted a directed verdict which we affirm, findong no merit to appellant's arguments.

On appeal.from the granting of a directed verdict, we view the facts most favorable to the apellant. Stalter v. Coca-Cola Bottling Co., 282 Ark. 443, 669 S.W.2d 460 (1984). On the evening of April 27, 1979, Goodnight and Richardson drove to Little Rock from Pine Bluff to go to some nightclubs. It was purely a social occasion. Goodnight bought gas for Richardson’s car in exchange for Richardson agreeing to drive his car. After spending at least six hours at two clubs and having a few drinks each, the two decided to return home. Richardson admitted to having had two drinks. Goodnight asked Richardson if he was able to drive and Richardson said he was.

At about 1:30 a.m., when the parties were returning to Pine Bluff on Interstate 30, they entered a construction area. The middle lane was barricaded, and all traffic going toward Pine Bluff was forced into the left lane. The Pine Bluff exit had a detour over a temporary bridge. Richardson increased his speed to pass a van before the detour. He braked before he took the first curve but, nevertheless, on the second curve he lost control and collided with a bridge enbankment. Goodnight testified that Richardson was going about 70 m.p.h. and that he had told Richardson to slow down. Upon impact, the car was airborne for 37 feet, turned over, and landed on its roof. Goodnight sustained multiple injuries.

Richardson pleaded the guest statute, codified at Ark. Stat. Ann. § 75-913 (Repl. 1979), which has since been repealed. Act 13 of 198 3. That statute provides that a guest in a car does not have a cause of action against the owner or operator of the car unless the driver’s conduct was willful and wanton.

Goodnight was a guest in Richardson’s car even though he purchased the gas. We have held that when a trip is for social or recreational purposes, such as in this case, a passenger is a guest even though he purchased the gas. Brand v. Rorke, 225 Ark. 309, 280 S.W.2d 906 (1955).

Goodnight first argues that Richardson’s consumption of alcohol, coupled with his driving at an excessive rate of speed, constituted willful and wanton misconduct. We have held that a person who drives while intoxicated may be found to be acting willfully and wantonly. Palmer v. Myklebust, 244 Ark. 5, 424 S.W.2d 169 (1968); Bridges v. Stephens, 238 Ark. 801, 384 S.W.2d 490 (1964); Cooper v. Calico, supra. Here, however, Goodnight testified that he believed that alcohol in no way contributed to the accident. The testimony shows that Richardson had a beer arid at least two drinks over a period of eight hours. As stated before, Goodnight asked Richardson if he was fit to drive and obviously accepted Richardson’s judgment. Therefore, we will not consider Goodnight’s argument which seeks to avoid the application of the guest statute.

Next, it is suggested that Richardson’s speed was gross misconduct. The general rule is that speeding by itself is insufficient conduct to be willful and wanton, although it is an important factor to consider. See 6 A.L.R. 3d 776 (1966). We have stated that driving at an excessive rate of speed, barely avoiding two accidents and the driver’s failure to heed his guest’s protests were sufficient to take the issue to the jury. Scott v. Shairrick, 225 Ark. 59, 279 S.W.2d 39 (1955). In another case, Cooper v. Chapman, 226 Ark. 331, 289 S.W.2d 686 (1956), we held that the combination of speeding in disregard of protests of guests was sufficient to take the issue of willful and wanton conduct to the jury. In Cooper the driver was going 85 to 100 m.p.h.

In Carden v. Evans, 243 Ark. 233, 419 S.W.2d 295 (1967), we held that a driver is not liable under the guest statute unless “there is evidence to show that his vehicle was willfully and wantonly operated in disregard to the rights of others . . .”, specifically his guest. We also stated that “persistent pursuit of a course of driving in a reckless and dangerous manner over the protest of the occupants of his vehicle” must be shown to establish willful and wanton misconduct. See also Delaney v. Mize, supra. The evidence fails to show there was a persistent course of reckless driving over the protests of Goodnight. Goodnight had not complained of Richardson’s speed until he passed the van. In our opinion, the conduct simply fails to measure up to the quantum required to present a question for the jury. Delaney v. Mize, supra; Cooper v. Calico, supra.

Appellant’s second argument on appeal is that the trial court erred in granting Jensen Construction Company’s motion for a directed verdict. Jensen contracted with the Arkansas Highway and Transportation Department to widen the rpad and bridge at the junction of the Pine Bluff four lane highway and Interstate 30. Goodnight argued that Jensen violated a contractual duty to provide for safety and accident prevention in the construction area and that Jensen, more specifically, failed to give adequate notice or warning of the detour.

Goodnight failed to prove the contractual duty upon which his suit relied. He failed to show the specifications for traffic control devices and that Jensen was in violation of that duty by not providing those traffic control devices. Goodnight’s own exhibits at trial illustrated the use of arrows on the pavement, and on signs showing that the road narrowed; the exhibits showed a “Pine Bluff Left Lane” sign overhead, barrels and barricades. It is Goodnight’s duty on appeal to demonstrate error and on this issue the appellant has failed to point to the precise error committed regarding this issue. See Baldwin Co. v. Ceco Corp., 280 Ark. 519, 659 S.W.2d 941 (1983). Therefore, we hold that the court was right in directing the verdict as to Jensen Construction Company.

Affirmed.


author:
John I. Purtle, Justice. Darrell Hickman, Justice,
      Steele Hays, Justice,

text:
    Henry TIMMONS v. STATE of Arkansas
    CR 84-207
    688 S.W.2d 944
    Supreme Court of Arkansas
    Opinion delivered May 13, 1985

      William R. Simpson, Jr., Public Defender; Arthur L. Allen, Deputy Public Defender; and Thomas J. O'Hern, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Joyce Rayburn Greene, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was convicted of rape [Ark. Stat. Ann. § 41-1803 (Repl. 1977)] and sentenced to 60 years imprisonment. On appeal he argues the prosecuting attorney engaged in prejudicial tactics and arguments during the course of the trial. We agree with appellant’s argument and reverse and remand.

The appellant attended a party at the victim’s house. According to the victim the appellant returned to her residence after the other guests had left and repeatedly raped her. She further testified that when she ran from the house to escape he overtook her and raped her several more times. One witness called by the state during the trial was a forensic serologist with the state crime laboratory. The doctor who examined the victim did not testify at the trial. At a pretrial conference, it was agreed by the state and the appellant that the serologist witness could not connect the chain of custody about the materials she had examined. During the trial, the state called the witness and the appellant objected to her testimony. At that point the state again admitted that it could not establish the chain of custody. Over the objection of appellant the state asked: “Did you have an occasion to examine some items submitted to you from [the prosecuting witness] ?” The court then sustained the objection. A request for a mistrial was denied.

During the closing argument the state’s attorney stated he had put the serologist witness from the crime lab on the stand and the appellant had objected to her testimony. He also referred to her testimony. The court instructed the jury not to consider the statement by the state’s attorney about a witness who did not testify.

The question to be decided is whether it is prejudicial to allow the state to call a witness to the stand when it is already known that the witness cannot give valid relevant testimony and then argue to the jury that it was the appellant who prevented the jury from hearing the evidence. We hold that under the circumstances of this case it was prejudicial.

We have long held that a prosecuting attorney should not be tempted to appeal to prejudices, pervert testimony, or make statements to the jury which, whether true or not, have not been proved. The desire for success should never induce him to endeavor to obtain a conviction by arguments except those which are based upon the evidence in the case. Holder v. State, 58 Ark. 473, 25 S.W. 279 (1894). In the more recent case of Dean v. State, 272 Ark. 448, 615 S.W.2d 354 (1981), we reversed the conviction because the state’s attorney asked a witness a question which was in reality testimony by the prosecutor. The precise question, addressed to a psychiatrist who had examined the defendant, was: “Okay. Let’s — Do you recall telling me in our telephone conversation that the defendant would be very likely to do this sort of thing again?” In Dean the court sustained the objection and denied the request for a mistrial. We are in the same posture now as we were then. In keeping with our precedent we are bound to reverse. Our most recent pronouncement on prosecutorial misconduct is found in Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985). In Foster the state called an accused accomplice knowing she would invoke her Fifth Amendment rights. The present case is almost identical.

We cannot say with any degree of certainty that the error was not prejudicial to. the appellant. In fact, it is quite clear that this conduct was prejudicial and could not have been corrected by anything less than a new trial. Accordingly the case is reversed and remanded for a new trial.

Reversed and remanded.

Hickman, J., concurs.

Hays, J., dissents.

Darrell Hickman, Justice,

concurring. The prosecuting attorney deliberately offered evidence which was misleading and inadmissible. In my opinion the judge realized later he should have stopped the prosecutor or granted a mistrial, but he didn’t. The prosecuting attorney attempted to leave the jury with the impression that there was evidence they should be able to consider, but that it was being excluded due to the defendant’s objections, which is a highly improper tactic.

Here is what the record shows. First, it was apparently understood before trial that the witness, a serologist, could not testify about her findings after examining the victim. Second, during the trial, the transcript of the state’s efforts reads:

[Defense attorney]:
We have stipulated to the lady’s qualifications. My understanding is that the State is not going to be able to establish chain of custody on any of the materials that she examined, and I’m going to object to any testimony on her part. We don’t have the examining doctor, have we?
The Court:
You may proceed with her examination. If he does make his chain of custody on it, I will allow it to be—
[Prosecutor]:
Tom is correct. I can’t make my chain. It is obvious to the court that I can’t, and whenever he objects I’ll quit.
The Court:
All right, sir.
[Defense attorney]:
I’ve objected at this point. If you want to go on—
The Court:
All right.
(The witness continuing.). . . .
Q. Did you have occasion to examine some items submitted to you from Geneva Wiggins?
[Defense attorney]:
I want to enter an objection at this time, your Honor.
The Court (out of hearing of the jury):
Are you going to admit that you can’t make it?
[Prosecutor]:
I can’t make it.
The Court:
The objection is sustained. (Italics supplied.)

After this deliberate effort in front of the jury, over a proper objection, the state was allowed to ask the witness about the items examined.

Third and last, in closing argument, the state again deliberately referred to the objectional evidence:

[Prosecutor]:
The evidence is unrebutted that she went to the Crime Lab for a rape examination. We put Lisa Cooper on the stand, the serologist. He’s doing his job. He objected to her testimony and we did not hear what that was. He’s doing his job.
[Defense attorney]:
Your Honor, I think this is improper argument. And I want to object to it.
The Court:
Ms. Cooper did not testify to anything, Mr. Adams.
[Prosecutor]:
That’s correct. I didn’t say she did. I said she was put on the stand and she testified as to her job and he objected.
The Court:
That’s correct. There’s no testimony.
[Prosecutor]:
That’s correct.
The Court:
It’s not proper for you to refer to it.
[Prosecutor]:
He is the one who said there’s no evidence since—
The Court:
That is correct, sir.
[Prosecutor]:
All these things that he objected to—
The Court:
The objection is sustained. You cannot refer to any evidence that was not admitted in this trial.
[Prosecutor]:
I’m not referring to the evidence. I’m referring that she was on the stand and he’s the one who objected to it, not me.
The Court:
It is sustained.
[Defense attorney]:
I’m going to have to move for a mistrial also on the prejudicial nature of reference to evidence that is not before the jury.
The Court:
We’ll discuss this after the jury goes out. Go ahead and finish and then we’ll take it up in Chambers.

In chambers the following occurred after some discussion and a motion for a mistrial was made:

[Defense attorney]:
I objected to statements that were made in the second closing of the prosecution as making reference to evidence that was not put in trial and which, in effect, in actuality was objected to by the defense and we received a favorable ruling. Our position is that any reference to the serology report which was testified to is improper and is prejudicial to my client as it leaves the jury with the inference that there was objective evidence available of the intercourse which the State was not able to validly get admitted into evidence at the trial.
The Court:
What did you say, Mr. Adams? I missed part of it.
[Prosecutor]:
I don’t — you know, I don’t think I commented on the report. I simply said that Tommy was doing his job when he objected to her testimony. Now as to what exactly I said I’m not sure.
The Court:
But what you did do was indicate that there was testimony that was objected to.
[Prosecutor]:
No, I just indicated she was on the stand and he was doing his job as the attorney representing his defendant.

The court decided an admonition would cure the error. In my judgment, however, the error was so deliberate and flagrant it could not be cured except by a mistrial; otherwise, the rules of evidence are meaningless.

I concur in the decision.

Steele Hays, Justice,

dissenting. Without ever saying so, the majority is reversing the trial court for refusing to declare a mistrial because the state made some response in rebuttal to the closing argument of the defense suggesting the state’s only evidence of rape was the uncorroborated claim of the prosecuting witness. When the prosecutor referred to the serologist who had examined items submitted by the complainant to the State Crime Lab but was unable to establish a chain of custody, the defense moved for a mistrial, which the trial court denied.

The majority’s assumption that the state called the serologist to the stand after having agreed in a pre-trial conference there was no chain of custody of the evidence so it could then argue to the jury that the defense prevented it from hearing the evidence, is palpably incorrect. There was no pre-trial conference on this issue and no indication whatever of an agreement, but a candid acknowledgement by the prosecutor that he could not establish the requisite chain after the defense had made it clear it would object on that basis. Nor did the state discuss the incident in closing until the defense had argued the alleged victim had not undergone a medical examination.

In closing, the defense argued: “But I mention first of all, no medical evidence, no examination by a doctor saying that she had had the sex, no indication of trauma to her body, scars or bruises, scratches, nothing, nothing at all to substantiate her claim that she had sex with the man.”

The prosecutor answered: “Now, no objective evidence. The evidence is unrebutted that she went to the Crime Lab for a rape examination. We put Lisa Cooper, the serologist, on the stand. [Defense counsel] is doing his job. He objected to her testimony and we did not hear what that was. He’s doing his job.”

Defense counsel objected and later moved for a mistrial on “the prejudicial nature of reference to evidence that is not before the jury.”

I find it impossible to draw any firm conclusions from a printed record concerning this dispute. It is one thing for the defense to point out to the jury there is no evidence of a medical examination of the .victim, but quite another thing to say that there was no examination, when in fact there seems to have been. The trial court heard the exchange, told the jury to disregard any remarks of counsel having no basis in the evidence and was in a far better position to judge whether the defense invited the comment or whether the state went too far in response. I would leave his decision undisturbed.

We have made it clear in countless cases that reversal of a trial court’s ruling on a mistrial motion is a drastic step-appropriate only in the most extreme cases and when the prejudice is so plain the trial cannot in justice continue. Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980); Back v. Duncan, 246 Ark. 494, 438 S.W.2d 690 (1969). This incident hardly meets that standard.


author: Robert H. Dudley, Justice.

text:
    FISHER BUICK, INC. v. CITY OF FAYETTEVILLE
    85-11
    689 S.W.2d 350
    Supreme Court of Arkansas
    Opinion delivered May 13, 1985

      Smith & Smith, by: Raymond C. Smith, for appellant.

      James N. McCord, City Attorney, for appellee.
   Robert H. Dudley, Justice.

This is another in the continuing series of cases involving the Fayetteville ordinance regulating signs and billboards. Appellant, Fisher Buick, Inc., leases three signs from the GM-DI Leasing Corporation. The signs exceed the size restrictions or fail to meet the setback restrictions prescribed by Section 17B-9(c) of Ordinance No. 1893, the City’s comprehensive sign ordinance. It became effective on January 19, 1973, and requires that on-site, nonconforming signs be removed or altered to conform by January 19, 1980. The original 10 year term of Fisher’s lease on the sign ended in 1981 but, after the period of amortization was over, Fisher and the lessor mutually agreed to make the term 15 years, or until 1986. Fisher applied to the City for a variance to maintain the three signs, but it was denied. Fisher appealed and the circuit court held that the exercise of police power was reasonable as applied to appellant. We affirm. Rule 29(1 )(c) provides that the appeal of cases testing the constitutionality of a municipal ordinance shall be heard in this Court.

Appellant contends that Section 17B-5(A)(1) of the Fay-etteville sign ordinance is an unconstitutional exercise of the police power as applied to it in particular. That section provides:

(A) Nonconforming signs. For the purpose of this section, a nonconforming sign shall be defined as a sign existing at the effective dateof this chapter (January 19,1973) which could not be built under the terms of this chapter or under the terms of the city’s zoning ordinance.
(1) On-site, nonconforming signs. All on-site, nonconforming signs not otherwise prohibited by the provisions of this chapter shall be removed or shall be altered to conform to the provisions of this chapter (a) when the nature of the business conducted on the premises changes and the sign is changed or modified either in shape, size, or legend, or (b) when the name of the business changes and the sign is changed or modified either in shape, size, or legend, or (c) on or before January 19, 1980, whichever occurs sooner.

The test to be used in determining whether an amortization provision is constitutional as applied to a particular sign owner is the reasonableness test. City of Fayetteville v. McIlroy Bank and Trust Co., 278 Ark. 500, 647 S.W.2d 439 (1983). This test weighs the public interest and private rights in light of the particular facts and circumstances involved. Art Neon Co. v. City and County of Denver, 488 F.2d 118, 121 (10th Cir. 1973). Some factors to consider, among others, in determining reasonableness as opposed to arbitrariness are: expected business losses, decrease in real property value, cost of removal, and original cost. City of Fayetteville v. McIlroy Bank and Trust Co., 278 Ark. 500, 502, 647 S.W.2d 439, 440 (1983); Hatfield v. City of Fayetteville, 278 Ark. 544, 545, 647 S.W.2d 450, 451 (1983). Since the appellant is the lessee of the signs, it has no standing to complain about the unreasonableness of the loss to the lessor, and we do not consider that factor. Somewhat similarly, appellant claims no harm during the period of amortization. The appellant does claim that future conformance with the ordinance will harm him by causing as much as a 2% loss in yearly gross income. The trial court, after weighing all of the factors, held that was not unreasonable under the circumstances. We could affirm simply stating that the trial judge was not clearly erroneous in his assessment of the evidence, but we choose to set out an additional factor. In 1981, as the 10 year lease was about to end, the appellant and the appellee changed the term of the lease from 10 years to 15 years. This amounts to nothing less than executing a new 5 year lease. However, by this time the 7 year amortization period had already run. Thus, when the new lease was signed the appellant knew that the signs had already been amortized and that they were in violation of the ordinance. The appellant chose to deliberately violate the ordinance with the new lease. It cannot now be heard to complain that it will suffer unreasonable losses because it deliberately chose to violate the ordinance.

Affirmed.

Hickman, J., concurs because of views expressed in City of Fayetteville v. S&H Inc., 261 Ark. 148, 547 S.W.2d 94 (1977).


author: Steele Hays, Justice.

text:
    Melvin HALL v. STATE of Arkansas
    CR 84-205
    689 S.W.2d 524
    Supreme Court of Arkansas
    Opinion delivered May 13, 1985

      Gary Vinson, for appellant.

      Sieve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Melvin Hall, appeals from his life without parole sentence for the capital murders of Jimmy and Gloria Owens. He raises four points of error, none of which have merit.

It was alleged and admitted that in the early hours of October 5, 1983, Hall entered the Owenses’ mobile home and shot and killed them both. Mrs. Owens was appellant’s former wife. The defenses of voluntary intoxication and mental disease or defect were raised as both full and partial defenses.

The state offered evidence of threats by appellant toward the victims for several months prior to their deaths. Appellant offered proof of emotional problems throughout his life which, he claimed, became increasingly worse when his wife left him and shortly thereafter married Jimmy Owens, in July, 1983.

I

Appellant maintains the trial court should not have allowed the state to “death qualify” the jury. We considered and rejected that argument in Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983); Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983); Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985).

II

Appellant also objects to the exclusion of four evidentiary items, three were intended to show appellant’s state of mind and one was offered as a lay opinion of appellant’s sanity.

The three excluded items were: 1) testimony by Roger Hall, appellant’s cousin, that he told appellant he had overheard a conversation between his wife and Gloria that Gloria was having an affair; 2) testimony by one of appellant’s sons that he told appellant about a conversation he overheard between Gloria and her new husband in which they laughed about the fact that Gloria told appellant he couldn’t have custody of the younger son; 3) testimony by Roger Hall about a letter appellant had read the day before the killing which described an incestuous relationship between Roger Hall’s niece and her stepfather which had upset the appellant when he read it.

The trial court sustained the objections to these offers of evidence on the basis of hearsay, which was incorrect. Appellant argues the evidence is admissible under Unif. R. Evid. 803(3) as an exception to the hearsay rule to show the declarant’s existing mental state, which was not the purpose of the offered evidence. Rather, the evidence in question shows its effect on the listener and is not offered to prove the truth of the matter stated. Such evidence is not hearsay and is admissible.

Some Out-of-Court Utterances Which Are Not Hearsay. . . . Utterances and writing offered to show effect on hearer or reader. When it is proved that D made a statement to X, with the purpose of showing the probable state of mind thereby induced in X, such as being put on notice or having knowledge, or motive, or to show the information which X had as bearing on the reasonableness or good faith or voluntariness of the subsequent conduct of X, or anxiety, the evidence is not subject to attack as hearsay. . . . McCormick on Evidence, § 249, (3d Ed. 1984), pp. 733-34.

This court has addressed this problem in Morrison v. Lowe, 267 Ark. 361, 590 S.W.2d 299 (1979):

The plaintiffs, at the beginning of their proof, sought to show how the relations between the two families had deteriorated, but the court allowed that proof to include hearsay. It would have been permissible, for example, for the plaintiffs to testify that they had been told of threats made against their lives by the defendants. See Lee v. State, 72 Ark. 436, 81 S.W. 385 (1904); McCormick on Evidence, § 249 (2d Ed. 1972). Such testimony, although hearsay if offered to prove that the threats had in truth been made by the Morrisons, would nevertheless be admissible, with a proper limiting instruction to the jury, to show that the plaintiffs had reason to be afraid of the defendants and acted in self-defense in the shootout that took place.

However, though it was error to sustain the objection on the grounds of hearsay, the ruling was harmless. The exclusion of evidence cannot be considered prejudicial if the same evidence is introduced by another witness and was before the jury for its consideration. Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983). The rejected evidence was substantially presented by some other witness and the record is replete with testimony about appellant’s state of mind and his response to his wife’s relationship with Jimmy Owens. The exclusion of a minor aspect of the proffered testimony to the same effect is not sufficient to prejudice appellant in light of the other evidence presented, and he makes no showing as to how prejudice could have occurred.

The fourth claim of error was the exclusion of testimony by Roger Hall that appellant would not have been in his right mind to commit this offense. To this point we said in Avery v. State, 271 Ark. 584, 609 S.W.2d 52 (1980):

It is well established that a nonexpert witness may testify as to the sanity of a defendant if a proper foundation is laid; however, the trial court should exclude the opinion testimony of a nonexpert witness whose association with the accused and opportunities for observation for a sufficient length of time are not adequately shown. (Citations omitted.)The trial judge will be reversed only if he has abused his discretion in passing upon the preliminary question of competency. . . .
Here, Dr. Avery, [cousin of appellant and a general practitioner who was presented as a nonexpert witness] observed the appellant one time, the night of November 7, 1978, when appellant was committed to the state hospital. The next time he saw appellant was a year later or on the date of the alleged offense when he was examining appellant’s father in the hospital. While appellant was in jail, he talked to him by phone and prescribed medication for his nerves. Dr. Avery did not consider the telephone call or the brief contact at the hospital to be examinations. We cannot say that the trial court abused its discretion in excluding the opinion of the nonexpert witness.

The state argues the evidence lacked a proper foundation, that appellant was attempting to prove his mental state on the night in question, not his general mental health and there was nothing in Roger Hall’s testimony to show he was well situated the night in question to give such an opinion. We disagree with that contention.

Hall testified, he and appellant were cousins and good friends; the two had known each other for many years. On that basis he was competent to say appellant’s behavior was not right on the night of the murders. It was not necessary for him to have observed appellant that night to give an opinion as to his mental state. Roger Hall’s association with appellant contrasts to the lack of foundation described in Avery, supra.

The trial court excluded the testimony because Roger Hall was not an expert, and under Avery this is error if a sufficient foundation had been laid, which was provided here. However, as the state points out, there was extensive coverage of appellant’s sanity on the night in question and he has not shown in the face of that cumulative evidence how he was prejudiced by the exclusion of one opinion from a nonexpert witness on the same issue. Mackey v. State, supra.

Ill

The jury was instructed on capital murder, first degree murder, second degree murder and manslaughter. Relying on Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981), appellant argues it is improper to give an instruction on both capital and first degree murder in a double murder prosecution and the trial court should not have given the first degree murder instruction over his objection. He contends the elements of premeditation and deliberation are the same in both offenses, the only difference being that with capital murder, two people are killed. Appellant claims because the two instructions are confusing the jury may have felt compelled to find the appellant guilty of capital or first degree, rather than of second degree murder.

In Couch, factually very similar to this case, the trial court gave instructions on capital murder, second degree murder and manslaughter. On appeal we did not consider whether it would be error to give a first degree instruction, but whether the refusal of a first degree instruction was error. We upheld the denial of a first degree instruction because there was no evidence to support it. Hence, Couch is not authority for the proposition appellant is advancing.

While there are similarities in the capital and first degree murder instructions, we are not persuaded that works to a defendant’s prejudice, or that the giving of both instructions somehow deters a jury from choosing second degree murder. Unquestionably the state was entitled to the capital murder instruction and that being so, the giving of the lesser degree instructions could only work to appellant’s advantage, as we have often noted. Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980). We rejected similar reasoning in McLemore v. State, 274 Ark. 527, 626 S.W.2d 364 (1982), where McLemore objected to a second degree instruction, preferring only a first degree instruction. We said, “Further, it appears here that the alternate theories would be to the appellant’s advantage inasmuch as it provided the jury with double opportunity to find the appellant guilty of the lesser offense. Appellant has demonstrated no prejudice.”

In any event, it is not necessary to decide if this was error on the facts of this case. It is conceivable the jury could have found appellant guilty of the first degree murder of one victim and of the second degree murder of the other, providing the trial court with some basis upon which to give the instruction. Where there is even the slightest evidence to warrant an instruction, it is error to refuse it. Robinson v. State, 269 Ark. 9, 598 S.W.2d 421 (1980).

IV

Appellant submits there was insufficient evidence to convict him of capital murder in the face of evidence presented by the expert testimony. He contends the jury could not have concluded he acted with premeditation and deliberation because the expert’s testimony was undisputed on this point. We disagree. The state’s expert witness testified appellant was sane and could weigh the consequences of his actions. He found appellant was able to appreciate right from wrong during the commission of the crime and was able to conform his conduct to the requirements of the law. He found no evidence of psychosis. The witness did say that these were not actions weighed in a conscious and calculating manner, but this does not preclude a finding of premeditation. He went on to say appellant was extremely upset, but that does not mean he cannot think and act deliberately and with accountability. In addition to the expert testimony, there are many instances in the record of appellant’s expressed desire and plan to harm both victims. We cannot say the evidence was insufficient to support the conviction.

We have examined all other objections made during the trial pursuant to Rule 11 (f), Rules of the Supreme Court, Ark. Stat. Ann. Vol. 3 (Repl. 1977) and find no error. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

The judgment is affirmed.


text:
    STATE of Arkansas v. Charles Ray ANDERSON, Jr.
    CR 84-215
    688 S.W.2d 947
    Supreme Court of Arkansas
    Opinion delivered May 13, 1985

      Steve Clark, Att’y Gen., by; Velda West Vanderbilt, Asst. Att’y Gen., for petitioner.

      William C. McArthur, for respondent.
   Steele Hays, Justice.

This case comes to us on a petition to review a decision of the Court of Appeals because a legal principle of major importance, the changing law of search and seizure, is involved. The Court of Appeals reversed the trial court and the state petitioned for review. We affirm the Court of Appeals.

Officer Jerry Ridgell, Stuttgart Police Department, appeared before the circuit judge at approximately 2:00 a.m. on the morning of April 13,1983 to obtain a warrant to search the home of Charles Ray Anderson, Jr., the respondent here, where Ridgell had observed a drug sale the afternoon of April 12. Oral testimony was taken and a warrant issued for the residence. At 2:30 a.m. officers arrested Anderson, searched his home and vehicle, and seized marijuana and other items. Anderson admitted the marijuana was his. He was charged with several crimes but all were subsequently dismissed except for possession of marijuana with intent to deliver. Anderson filed a motion to suppress and the state agreed to suppress evidence seized from the vehicle and the motion to suppress the items seized from the house was denied. Anderson was tried and the jury returned a verdict of guilty for possession of marijuana, a misdemeanor, and imposed a sentence of one year in jail and a $1,000 fine.

Two assignments of error were argued to the Court of Appeals, first, the drug paraphernalia should not have been admitted over an objection to its relevance. The Court of Appeals rejected this contention and we are in agreement. The items introduced included a medicine kit with syringes, scalpel trays, pipes, glass tubes, hemostats, scales and similar items. The Court of Appeals said:

The record reflects, however, that the items in question were relevant to the crime with which appellant was charged and therefore admissible under Unif. R. Evid. 402. Whether evidence is relevant is a matter addressed to the sound discretion of the trial court, and, absent an abuse of that discretion by the lower court, the Court of Appeals will not disturb its ruling. (Cite omitted). We find no abuse of discretion here. A police officer, who had established his familiarity with the subject matter explained the use of each article of paraphernalia as it was introduced into evidence. Such testimony concerning the items enabled the trial court to view the paraphernalia as relevant within the terms of Rule 401. Anderson v. State, 13 Ark. App. 68, 679 S.W.2d 806 (1984).

Second, Anderson contends the warrant was improperly and illegally authorized. Anderson makes three points in challenging the legality of the search warrant, including the lack of an affidavit or recorded testimony in support of the warrant. A.R.Cr.P. 13.1(b) requires one or more affidavits or recorded testimony under oath before a search warrant may be issued. When Officer Ridgell appeared before the circuit judge to secure the warrant, his testimony was not recorded and there was no affidavit. Citing Lunsford v. State, 262 Ark. 1, 552 S.W.2d 646 (1977), the Court of Appeals reversed because of this omission. In Lunsford, the court found the lack of an affidavit or recorded testimony under oath as required by Rule 13.1(b) to be fatal to the sufficiency of the warrant. On this issue we granted a petition for review to consider the decision in light of two recent United States Supreme Court holdings involving search and seizure questions, U.S. v. Leon, _ U.S. _, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) and Massachusetts v. Sheppard, _ U.S. _, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984).

Leon holds “objective good faith reliance” by a police officer upon the acceptance of his affidavit by a detached, neutral magistrate will avoid application of the exclusionary rule in the event the magistrate’s assessment is found to be in error. Under this rationale the exclusionary rule is designed to deter misconduct on the part of the police rather than to punish errors of judges and magistrates, and admitting evidence seized pursuant to a defective warrant will not reduce incentives on the part of judicial officers to comply with the dictates of the Fourth Amendment. 104 S.Ct. 3418. Massachusetts v. Sheppard, supra, a companion case to Leon, applied the Leon rule to technical deficiencies in the warrant and found the officers had acted in objectively reasonable reliance on a warrant which was technically inadequate.

In Leon, the warrant was constitutionally infirm to support probable cause, but sufficient to cause disagreement among thoughtful and competent judges, and a reasonable, well-trained police officer could have believed probable cause existed, i.e. objectively reasonable good faith.

How far below the standard of probable cause or a constitutionally valid warrant the Supreme Court is willing to go and still find good faith on the part of the police, has been left open. Several states have not been ready to go beyond the narrow fact situation set out in Leon. See Adkins v. Texas, 675 S.W.2d 604 (Tex. Crim. App. 1984); Collins v. Florida, 465 So. 2d 1266 (Fla. Dist. Ct. App. 1985); Colorado v. Deitchman, _ Colo. _, 695 P.2d 1146 (1985). Nor have we in two cases citing Leon dealt with deficiencies of constitutional or substantial proportions. McFarland & Solst v. State, 284 Ark. 533, 684 S.W.2d 233 (1985); Lincoln v. State, 285 Ark. 107, 685 S.W.2d 166 (1985). To date we have not read Leon any more broadly than finding its utility in easing the burden of the prosecution from technicalities or form which heretofore might have invalidated an otherwise constitutionally sufficient warrant and which was insufficient despite all reasonable efforts and reliance on the part of the police. How far beyond that we will apply Leon we have not said, nor is this the appropriate case.

The issue is whether the omission of a fundamental requirement in the procedure for a search warrant involved error of constitutional dimension or of a substantial nature under our own Rules of Criminal Procedure.

A faulty warrant that is reasonably relied on by a police officer may not offer any deterrent potential and there may be, under the right circumstances, a sufficient basis under Leon not to exclude evidence obtained in such a search. However, this warrant was issued without the required affidavit or the recorded, sworn testimony. A.R.Cr.P. Rule 13.1(b); Lunsford, supra; and see Collins v. State, 280 Ark. 453, 658 S.W.2d 877 (1983). Whereas probable cause and technical deficiencies in a warrant go to reasonable grounds to support a search, the requirements of the affidavit or recorded testimony additionally go to basic procedural safeguards afforded the defendant. We view that particular section Rule 13.1 as a threshold requirement before we consider the question of good faith on the part of the police. Without some record the defendant is limited in his attack on the warrant and is .without fair judicial determination of the legitimacy of the warrant. Neither could subsequent questions of good faith be objectively and fairly gauged in a suppression hearing or on review. “In order that the accused might have the opportunity to assail the validity of a warrant upon which the state seeks to justify a search and the affidavit upon which the warrant was based, the state has the burden or responsibility of producing the warrant and affidavit or to follow approved procedure for establishing their contents. This is necessary because the issuance of the warrant is not an adversary proceeding and the accused may have never seen either the warrant or the affidavit, whose validity he may attack on a motion to suppress the evidence seized.” Schneider v. State, 269 Ark. 245, 599 S.W.2d 730 (1980). The basis of Anderson’s opportunity to attack the warrant is in question, precluding further objective inquiry. To consider the good faith of the officers in this context is inappropriate. Even so, if we were to frame this question within the good faith limitations of Leon, we would reach the same conclusion. The procedure of providing an affidavit when obtaining search warrants is so standard a practice that we cannot consider such a deficiency as falling within the purview of good faith error. When we adopted the Rules of Criminal Procedure it was hoped we were providing a concise, correct set of rules governing searches, seizures, which would in general set forth the procedural aspects of criminal law. The rules should be common knowledge to law enforcement officers and judicial officers who have the duty and responsibility to authorize searches. The forms and procedure are not complex and compliance will save everyone concerned a good deal of time, money and sometimes, anguish. Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978). And see, Adkins, supra; Collins, supra.

Prior to the adoption of the Arkansas Rules of Criminal Procedure, the written requirement was not mandatory, although we recognized that such requirement was so common that most text writers stated a written affidavit was required as a general rule. Tygart v. State, 248 Ark. 125, 451 S.W.2d 225 (1970). We also found it to be the preferred procedure. “There can be no question as to the better procedure. . . . Time erases the availability of witnesses and the memory of those witnesses still available, particularly in the instances of the many belated petitions in criminal cases. On the other hand, it is not for us to insert the provision into the law.” Tygart at 131.

With Act 123 of 1971 a written affidavit did become required, see Shinsky v. State, 250 Ark. 615, 466 S.W.2d 909 (1971) and that provision was incorporated into the Arkansas Rules of Criminal Procedure adopted in 1976. In view of the substantial nature of that requirement and its legislative sanction we believe it cannot be disregarded or found within any good faith exception.

As we find the warrant deficient on this point, it is unnecessary to address the other points raised by the appellant.

We affirm the decision of the Court of Appeals.


author: Per Curiam.

text:
    ARKANSAS BAR ASSOCIATION, IN THE MATTER OF INTEREST ON LAWYERS’ TRUST ACCOUNTS
    84-90
    689 S.W.2d 352
    Supreme Court of Arkansas
    Opinion delivered May 13, 1985

      William R. Wilson, Jr., for Arkansas Bar Association, petitioner.
   Per Curiam.

On September 17, 1984, we granted a petition by the Arkansas Bar Association requesting that we permit establishment of a program for collecting interest on monies deposited in lawyers’ trust accounts and for use of the interest earned for certain purposes having to do with furthering legal education and the sound administration of justice in Arkansas. In the Matter of the Arkansas Bar Association Petition to Authorize a Program Governing Interest on Lawyers’ Trust Accounts, 283 Ark. 252, 675 S.W.2d 355 (1984).

Our opinion contained, in part, this language:

4. Client consent is not an element of the IOLTA program. However, attorneys and law firms participating in the program shall inform their clients of their participation by sending to each client a notice, in the form set out below, providing information concerning the new procedures and the uses of trust earnings.

The petitioner has pointed out this language could be interpreted as requiring notice be sent to all clients of any participating lawyer, whether the client had money in the lawyer’s trust fund or not. We agree that would be a useless act in many instances.

The petitioner suggests our opinion be changed to permit a lawyer to give notice to his clients by posting it in the lawyer’s office.

Our opinion is hereby modified by replacing the language quoted above with the following:

4. Client consent is not an element of the IOLTA program. However, on the same day as a client’s money is first deposited in a participating attorney or law firm’s trust account, the attorney or law firm shall mail a notice to that client in the form set out below, providing information concerning the procedures and the uses of trust earnings. Subsequent deposits of money of a client who has once been notified may be made without repeating the notice.


author: Per. Curiam.

text:
    Mark WARD v. STATE of Arkansas
    688 S.W.2d 951
    Supreme Court of Arkansas
    Opinion delivered May 13, 1985

      Robert Sharp Gunter, for appellant.

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

Appellant, Mark Ward, by his attorney, has filed for a rule on the clerk.

His attorney, Robert Sharp Gunter, 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, 265 Ark. 964.

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


author: Jack Holt, Jr., Chief Justice.

text:
    G. W. TURNER v. Preston WOODRUFF, Jr., et al, BD. OF DIRECTORS OF ARK. STUDENT LOAN AUTH., ARK. STUDENT LOAN AUTH., Pat SILES, Exec. Dir. of Ark. Student Loan Auth., and SIMMONS FIRST NAT’L BK.
    85-23
    689 S.W.2d 527
    Supreme Court of Arkansas
    Opinion delivered May 20, 1985

      Allen, Cabe & Lester, by: V. Markham Lester, for appellant.

      Steve Clark, Att’y Gen., by: Curtis Nebben, Dep. Att’y Gen. and Wright, Lindsey & Jennings, by: W. J. Williams, Jr., for appellee.
   Jack Holt, Jr., Chief Justice.

This is an action challenging the authorization of certain revenue bond issues for student loans. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(a) inasmuch as it involves the interpretation of Article 16, § 1 and Amendment 20 of the Arkansas Constitution.

In June 1984, the Board of Directors of the Arkansas Student Loan Authority adopted a resolution authorizing the issuance by the Student Loan Authority of $10,000,000 of Student Loan Revenue Bonds, Series 1984A, and $20,000,000 of Student Loan Revenue Refunding Bonds, Series 1984B, pursuant to Ark. Stat. Ann. § 80-4036 (Repl. 1980). No public election was held nor was one scheduled to authorize the issuance of the bonds.

The Student Loan Authority is a state agency created by Act 873 of the 1977 Acts of Arkansas, codified and amended in Ark. Stat. Ann. §§ 80-4032—80-4052 (Repl. 1980). Its stated purpose is to acquire guaranteed student loan notes and make direct loans in accordance with Title IV, Part B of the Higher Education Act of 1965 (20 U.S.C. § 1071 et seq.) as amended, to qualified students for payment of educational expenses while attending participating institutions. § 80-4033. Guaranteed student loans may be made under Act 873 only to students who meet the qualifications set forth in the Higher Education Act of 1965, as amended, and who are residents of Arkansas or who have been accepted for enrollment or are attending a participating institution within the state. A participating institution is any post high school educational institution, public or private, whose students are eligible for guaranteed student loans. § 80-4032(E).

To provide the necessary funding for the program, § 80-4036 authorizes and empowers the Authority to issue revenue bonds from time to time in such principal amounts as deemed necessary. The Act does not require approval by the electorate, but rather demands prior consent by the Arkansas State Board of Finance. In addition, the face of the bonds must plainly state that the bonds are obligations only of the Arkansas Student Loan Authority, and that in no event shall they constitute an indebtedness for which the faith and credit of the State of Arkansas or any of its revenues are pledged, and that they are not secured by a mortgage or lien on any land or buildings owned by the state. § 80-4037.

The appellant, G.W. Turner, brought this action as a taxpayer, resident and citizen of Jefferson County, Arkansas, to enjoin enforcement of an allegedly “illegal exaction of state revenues” by the appellees. The appellees are the Arkansas Student Loan Authority, its executive director, seven members of the Board of Directors, and Simmons First National Bank of Pine Bluff, which has previously been active in originating and selling student loans to the Authority, and would do the same in connection with the bond issue being challenged here.

Appellant petitioned the Jefferson County Chancery Court for a declaratory judgment and an injunction based upon three grounds:

I. The bonds violate Article 16, Section 1, as amended by Amendment 13, and Amendment 20 of the Arkansas Constitution because they lend the credit and pledge the revenues of the State;
II. The Arkansas Student Loan Authority Act violates Article 5, §§ 1 and 2 of the state constitution because it impermissibly delegates legislative power to the United States Secretary of Education; and
III. The bonds are illegal because they are not issued for a “purely essential” or “genuine” public purpose.

The chancellor’s adverse findings on each of these points are the basis for this appeal.

I.

In Murphy v. Epes, 283 Ark. 517, 678 S.W.2d 352 (1984), we provided a two part test for determining the validity of revenue bonds: (1) they must not violate the state constitution and (2) they must be for a public purpose.” 283 Ark. at 521. We find that the proposed bond issues meet both tests and affirm the findings of the trial court.

Article 16, § 1 of the Arkansas Constitution, as amended by Amendment 13, prohibits the state, or any county, town or municipality of the state from lending its credit for any purpose, or issuing interest-bearing evidences of indebtedness, except authorized bonds for payment of an indebtedness existing when the 1874 constitution was adopted or a bond issue approved by a majority of the electorate. (The article provides for payment of the bonds issued thereunder from the levy of a special tax on real and personal property within the municipality.)

Amendment 20 of the Arkansas Constitution prohibits the state from issuing bonds without an election.

The issue before us is whether Act 873 of 1977 violates Amendment 20 and Article 16 wherein the Act authorizes the issuance of revenue bonds without an election. We find that it does not.

In the case at bar, the Student Loan Authority bonds will be repaid from income derived from the loan notes and investments, with interest payments coming from the federal government. Ark. Stat. Ann. § 80-4042. As in Murphy, these bonds must and do clearly state on their face that they do not constitute an indebtedness or obligation of the State of Arkansas.

II.

Appellant’s second argument is that the Student Loan Authority Act delegates legislative power in violation of Article 5, § 1, as amended by Amendment 7 of the Arkansas Constitution, and Article 4, §§ 1 and 2. We disagree.

The Student Loan Act provides that eligibility for a loan depends in part upon meeting the requirements of the Higher Education Act of 1965. Ark. Stat. Ann. §§ 80-4032,80-4039. Act 873, § 8 provides that: “No loan shall be made under the Act to any student who would not qualify to have on his behalf the federal interest benefits as authorized by Title IV, Part B of the Higher Education Act of 1965.”

The only issue is whether the reliance on federal standards for loan qualification is an unconstitutional delegation of legislative power.

The basic rule of law as restated in Arkansas S & L Ass’n Bd. v. West Helena S & L, 260 Ark. 326, 538 S.W.2d 560 (1976), is:

[T]he functions of the Legislature must be exercised by it . alone. That power cannot be delegated to another authority. [Cites omitted.]

However, non-legislative powers are delegable by the legislature.

Thus, the rule is that in order that a court may be justified in holding a statute unconstitutional as a delegation of legislative power, it must appear that the power involved is purely legislative in nature — that is, one appertaining exclusively to the legislative department. It is the nature of the power, and not the liability, its use or the manner of its exercise, which determines the validity of its delegation.

Arkansas S & L Ass’n Bd., supra, (quoting 16 Am. Jur. 2d Constitutional Law, § 242.)

In Arkansas S & L Ass’n Bd. we held the statute requiring savings and loan associations chartered by the state to have their savings accounts insured by the Federal Savings and Loan Insurance Corporation (FSLIC) or other federal agency was not an unconstitutional delegation of legislative power. 260 Ark., at 339. There the FSLIC had denied the West Helena Savings and Loan Association’s application for insurance. Thereafter, the Association’s charter was cancelled pursuant to Ark. Stat. Ann. § 67-1831 (Repl. 1980), and the Association filed suit. Our decision rested upon the findings that the FSLIC was not required to do anything under the statute and that the Federal Housing Loan Bank Board, which conducted hearings on applications for insurance with FSLIC, was not mentioned in the statute. Id., at 336.

Similarly in the case at bar, the Student Loan Act does not require any action on the part of the Secretary of Education or any other federal agent or agency. The Act anticipates interest payments from the federal government, but an anticipation is far short of a delegation. The Act does not mention any function to be performed by the federal government. As in Arkansas S & L Ass’n Bd., we do not find a delegation of legislative power in this act.

III.

What constitutes a public purpose is for the General Assembly to determine. Murphy, supra. Although ultimately the propriety of a proposal’s stated purpose is resolved by the judiciary, great weight must be given legislative determinations of public purposes. See Kerr v. East Central Ark. Regional Housing Auth., 208 Ark. 625, 630, 187 S.W.2d 189 (1945); 64 C.J.S. Municipal Corporations § 1905, p. 479 (1950); see also Brodhead v. City & County of Denver, 126 Colo. 119, 247 P.2d 140 (1952).

Moreover, we said in Murphy, supra, that:

[T]he determination of whether legislation fulfills a public purpose is a legislative decision and a court will reverse that decision only if the legislature acted arbitrarily, unreasonably or capriciously. The court should not substitute its own judgment for that of the legislature.

Furthermore, we have said:

It is only in those cases where the discrepancy between an expressed objective and actuality is so great that no reasonable person would believe that the purported purpose was a necessary expense of government that the courts will intervene.

Humphrey, State Auditor v. Garrett, 218 Ark. 418, 236 S.W.2d 569 (1951).

Appellant cannot reasonably argue that education is not of a public nature. The state constitution is evidence that the people of Arkansas feel education of its citizenry, even to the extent of publicly financing it, is a public necessity.

Article 14, § 1 of the constitution reads:

Free school system. — Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free schools whereby all persons in the State between the ages of six and twenty-one years may receive gratuitous instruction.

Amendment 53 of the Arkansas Constitution removes the age limitation of Article 14. In addition, Amendment 52 authorizes the General Assembly to establish and provide a method of financing for community colleges. See DuPree v. Alma School District No. 30, 279 Ark. 340, 651 S.W.2d 90 (1983).

The legislature’s enactment of Act 873 clearly indicated that public support of educational financing is a public purpose. The emergency clause states in part:

It is hereby found and determined by the General Assembly that there is an urgent need for providing a secondary market for student loan notes and establishing a fund for the making of student loans; that at the present time the only operating program for providing such funds is dependent upon private financial institutions furnishing the funds for such loans with such loans being guaranteed by the government, but being investments which considering their rate of return, maturity and servicing requirements, private financial institutions have been unable to make the extent required; that it is urgent that a new program be established whereby bonds may be issued by a state agency or non-profit corporation with the proceeds of such bonds to be used for making student loans and purchasing student loan notes thereby making more readily available educational loans to deserving young people who may now find it difficult to obtain a loan from private institutions.

Acts of 1977, No. 873, § 25, p. 2222.

Appellant contends that because non-residents of the state are eligible to receive loans under the act it is invalid. This contention is unsupported and noncompelling. A diversified student body is a desirable characteristic of college and university campuses. It is well known that a significant part of a student’s learning is acquired from other students. Therefore the ability to draw students from other states with varying experiences and backgrounds is in keeping with the overall public purpose of enhancing education.

Appellant has not provided us with any reason to find that Ark. Stat. Ann. § 80-4032 et seq., or Act 873 lacks public purpose.

Affirmed.

Hickman, J., dissents.

Purtle, J., concurs for the reasons stated in Murphy v. Epes, 283 Ark. 517, 678 S.W.2d 352 (1984).


author: George Rose Smith, Justice. Steele Hays, Justice,

text:
    Lynette COMBS v. STATE of Arkansas
    CR 84-177
    690 S.W.2d 712
    Supreme Court of Arkansas
    Opinion delivered May 20, 1985

      C. P. Christian, for appellant.

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

On November 12, 1983, a badly decomposed human body was found in Pulaski County near the Arkansas River. An autopsy showed that death had been caused by a gunshot wound in the neck. The body was identified as that of William Ray Burnett, age 30. Investigation disclosed that he had been murdered about two months earlier, though it is not clear from the record whether he had been reported as missing.

On December 13 first-degree murder charges were filed against Hubert D. Henry and the appellant, Lynette (Burnett) Combs, who was Burnett’s wife and had been for some ten years. Henry negotiated a plea of guilty in exchange for a 25-year sentence and his agreement to testify against Ms. Combs. The appellant was tried by jury, found guilty, and sentenced to life imprisonment. The only issue on appeal is whether the testimony of Henry, as an accomplice, was sufficiently corroborated.

Before summarizing the evidence we quickly restate settled rules governing the necessity for corroboration. By the terms of the statute the testimony of the accomplice must be corroborated by other evidence tending to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense and the circumstances of it. Ark. Stat. Ann. § 43-2116 (Repl. 1977). When the corroboration is weighed, the testimony of the accomplice must be completely disregarded. The independent testimony may be circumstantial, but it must be substantial evidence and must do more than raise a suspicion of guilt. Olles v. State, 260 Ark. 571 (1976).

For simplicity, instead of narrating the testimony of the many witnesses we will begin by summarizing the really essential evidence in the case; that is, the version given by the accomplice and that given by the accused. We use the first person, with explanatory comments in brackets.

Testimony of Hubert Henry. For about three years before Bill Burnett’s death, he and Lynette and I had been together most of the time. At first there was also a woman named Angie. We stayed together but moved around Little Rock a lot, from place to place. Lynette and Angie were prostitutes, and I procured men for them. [There is an implication that the two men were engaged in other illegal “things,” but Hubert never said exactly what they were.] After a time Angie decided to get out and go straight. I had sexual relations with both women.

Bill was shot about September 13,1983. Shortly before that Lynette had asked me to kill Bill; she said she was tired of moving around. I refused. Bill and I spent the first part of the night in question looking for drugs. In the early morning hours we got back to the room where they were staying. They took me in their [brown] station wagon to the place where I was staying, in Calvary Cemetery. [Other testimony and photographs show a small house with all the windows having bars on them. Part of the house was the cemetery office; another part had been furnished with a couch, bed, TV, cook stove, refrigerator, and a bathroom. Close by was a larger storage shed, with a pull-down garage door.] Bill drove the vehicle into the shed; he didn’t want to be seen because he was scared of the police. As I started to the house to get marihuana Lynette asked me whether I was still going to do her that favor. I said, no. She reached over and took my Luger pistol from under my belt. I didn’t say anything; I didn’t think she would do it. It took me a few minutes to roll the marihuana.

When I got back to the shed Bill was laying on his back; blood was coming from his back. I had not heard a shot. I put the pistol under some newspapers and got it later. She asked what we was going to do. I said I know one thing, we’ve got to get it up before Mike [the cemetery caretaker] comes back, because it was early in the morning and he would get there about 6:00. We got newspapers, cleaned up, put the body in the back of their station wagon, and drove down to the river. We pulled the body out of the station wagon and down to the river. We went to the car wash and cleaned up the blood that was in the station wagon.

After that we lived at the cemetery together until I was arrested by York [Buddy York, the bondsman on Henry’s bond for some other offense. York testified that he picked up Henry on November 26, at the cemetery]. Lynette was free to come and go as she pleased. After the murder we sold the [brown] station wagon for $200, bought a station wagon that had a bad transmission, and then got a yellow station wagon. I was not living with my wife, but Lynette would drive me over there and circle the block until I came out.

Testimony of Lynette Combs. Bill and I met in Michigan; I was then 13, he was 15. We never dated anyone else. We were married in 1973. Bill was a good man, good to me. We were very close. We went to church. We went camping and fishing together. I was never a prostitute and never had an affair with anyone.

I last saw Bill on September 13, at 2:00 a.m. We were at our place at Sixth and Cedar. Henry came by and asked Bill to take him home. In about two hours Henry came back, said that Bill had hurt his knee, and I should go to Henry’s apartment to bring Bill home. Henry had Bill’s station wagon. We went to Henry’s apartment in the cemetery. Henry opened the door, looked in like he was talking to somebody, and turned and said to me he wants you to come in. When I walked in, Henry locked the door and said, “I’m going to rape you.” I said, “I can’t believe you’re doing this. I don’t understand; why me?” I told him that he would never get away with this, that Bill would be after him.

Henry raped me twice, tied me up, and locked me in a closet. When he left the doors unlocked the next morning, I got loose and saw Henry and three men outside working on a truck. I ran out screaming for help and asking them to call the police. Henry started beating me and dragged me back into the house. He kept me a prisoner for about two months, continuing to abuse me sexually. We would go out in the day, but he always had a gun and sometimes chained me to the car. After those three men had not offered to help me, I was afraid to ask for help again. Henry told me that if I tried to get away he would kill me. He forced me to take part in selling the station wagon and getting another one.

When Henry was arrested I at once called my friend, Carolyn Nelson, who picked me up at the cemetery. At her house I called my parents in Michigan, to tell them I was all right. [Apparently her father called the Little Rock police the next morning, who came out to question her.] I learned for the first time from the police that Bill was dead. I loved my husband; I never had any thought of divorcing him or killing him. I did not ask Henry to kill him. I was not attracted to Henry in any way. [This is the end of Ms. Combs’s summarized testimony.]

Apart from the accomplice’s testimony, the State’s proof was directed to two points. First, the fundamentals were established by evidence of the finding of Burnett’s body, the cause of death, and its identification. Second, an effort was made to dispute the truth of Ms. Combs’s expected testimony. Her statements to the police were not introduced, but the prosecution had evidently seen them and devoted much of its evidence to their refutation. The man who bought the station wagon from Henry and Ms. Combs testified about that transaction and said that Henry did not apparently have a gun and that Ms. Combs was not tied up and did not seem to be afraid. His testimony had no tendency to connect the accused with the actual commission of the murder.

Henry’s wife testified that Ms. Combs did not appear to be under restraint after the date of the crime, for she drove Henry in the yellow station wagon to the witness’s house for a visit and came back to pick him up. Even so, the testimony had nothing to do with the murder itself. An expert witness for the State testified that what proved to be human blood was scraped from three areas in the station wagon that Henry and Ms. Combs had sold, but those findings do not show that the accused was present at the murder or had any part in it.

The only remaining source of possible corroboration is the testimony of the accused herself. She did not, however, admit her guilt in any way, directly or indirectly. She testified to facts intended to establish her innocence, such as her asserted imprisonment until the body was found, which would explain her failure to report his disappearance. (Under the court’s instructions to the jury, Ms. Combs could not be found guilty of any offense if Henry alone committed the murder and she merely failed to report it.)

No doubt the jury concluded that much of the accused’s testimony was false, leading them to reason that she therefore must be guilty. But that reasoning is forbidden by the statute requiring corroboration and by the State’s burden of affirmatively proving the accused’s guilt beyond a reasonable doubt. It does not suffice for the State, as purported corroboration, to convince the jury that an accused person has given false testimony. If that were not true, innocent defendants might be afraid to take the witness stand for fear that they would be sentenced to imprisonment for life not for the commission of murder but for the commission of perjury.

The judgment is reversed, and since the proof is insufficient the charge must be dismissed.

Holt, C.J., and Hays and Newbern, JJ., dissent.

Steele Hays, Justice,

dissenting. Heretofore we have held the testimony of an accomplice must be wholly disregarded in determining whether there is substantial evidence of the guilt of the accused, no matter how plausible and credible it may seem. By this decision we are adding the requirement that the testimony of the accused must also be wholly disregarded, no matter how incredible per se and implausible in the light of the remaining proof.

I respectfully submit that is a higher quantum of proof than is consistent with either common sense or with our statutory law. Ark. Stat. Ann. § 43-2116 (Repl. 1977) provides:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. Provided, that in misdemeanor cases a conviction may be had upon the testimony of an accomplice.

The legislature deliberately used the words “tending to connect the defendant with the commission of the offense” and that if the proof merely showed that a crime had occurred, and the circumstances thereof, it would not be sufficient. (My emphasis). The word “tend” means “to influence in a particular direction,” “to have a tendency, conscious or unconscious, to any end, object or purpose.” Webster’s New International Dictionary, Second Edition.

Since this act was passed in 1883 we have gradually interpreted it with increasing strictness until we are effectively requiring substantial evidence of guilt independent of either the testimony of the accomplice, or now, of the accused. I know of no other area of law where so great a burden of proof exists.

I am unwilling to disregard the testimony of the accused. I recognize some value in avoiding an application of the law that puts the accused in jeopardy of his own version of the events under scrutiny, but the law must often choose between imperfect solutions, and every accused, indeed, every litigant, must weigh the risks inherent in giving testimony, including the risk of being disbelieved. If the accused chooses to testify then it follows that his testimony must be weighed as other proof is weighed, against the tuning fork of truth and if it can be said after disregarding the testimony of the accomplice there is substantial evidence tending to connect the accused to the crime, and overall, substantial evidence to sustain the conviction, the verdict should be upheld.

I can find no precedent to support the position the majority is taking by this decision, that is, that we can consider the discrepancies in an accused’s version of the facts if they are made out of court, unsworn, often without the guidance of counsel, but not if they occur in court, under oath, and made, presumably, after careful consultation. I note the majority opinion cites no authority for this rather significant holding. What I do find in our own cases supports a contrasting view. In Clayton v. State, 247 Ark. 643, 447 S.W.2d 319 (1969) and Ford v. State, 205 Ark. 706, 170 S.W.2d 671 (1943), we said the testimony of the defendant alone may be sufficient corroboration of the testimony of the accomplice:

The rule is also well established that the testimony of the defendant alone may be sufficient corroboration of an accomplice. In Dickson and Johnson v. State, 197 Ark. 1161, 127 S.W.2d 126, we said: “We have but recently held that the testimony of a defendant may in itself be a sufficient corroboration of the evidence of an accomplice. Morris v. State, 197 Ark. 778, 126 S.W.2d 93; Morris v. State, 197 Ark. 695, 123 S.W.2d 513.” Ford at p. 708.

It is obvious the appellant gave the police the same bizarre account she told the jury, in fact she confirms that in her testimony. So why we are drawing a distinction between her version in court as opposed to her version out of court is not made clear. If she is to avoid the stigma of her own conduct for two months after the death of her husband she can do so only by successfully convincing a listener that she lived those long weeks outwardly in a normal fashion, going out in public, to parks, stores and business places as an absolute prisoner, held entirely against her will. That she, by her account, was subjected to repeated rapes and sexual and physical abuse, but was powerless to free herself from an unspeakable ordeal over an eight week period. That somewhat incredible account is contrasted to the testimony of four disinterested witnesses that she had innumerable opportunities to simply walk or drive away, that she was free and on her own time after time. Three of the four went further and stated she gave every indication of being perfectly at ease in her state.

Added to that are other circumstances which, in greater or lesser degree, incriminate the appellant: the presence of blood in six separate places in her station wagon, the sale by her of the incriminating vehicle soon after her husband’s death; her statement, undeniably false, to the car dealer that she needed money to get her husband out of jail; her statement to a witness after the arrest of the accomplice that she was scared and was going to Michigan; the fact that she and the accomplice went to a Safeway dumpster and threw her husband’s clothes and belongings away; the fact that all of the pictures of her husband were carefully cut out from her photograph album; finally after being freed of her ordeal by the arrest of her captor, instead of going to the police, she went to the home of a girl friend and it was the police who later contacted her.

I believe the corroborating proof in this case is entirely consistent with other decisions and I would affirm the trial court. See Henderson v. State, 279 Ark. 435, 652 S.W.2d 16(1983);Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980); Olles v. State, 260 Ark. 571,542 S.W.2d 755 (1976);Jackson v. State, 256 Ark. 406, 507 S.W.2d 705 (1974).

Holt and Newbern, JJ., join in the dissent.

       Page 249 of the record.