text:
    Frank R. CHAMPAGNE, et al v. Glen Dale FARNSWORTH, Administrator
    80-272
    612 S.W. 2d 121
    Supreme Court of Arkansas
    Opinion delivered March 2, 1981

      Laser, Sharp & Huckabay, for appellants.

      Dodds, Kidd, Ryan & Moore, by: Donald S. Ryan, for appellee.
   Steele Hays, Justice.

This case involves the guest statute, the issue being whether the evidence of willful and wanton conduct under the statute is sufficient to support an award of damages to the estate of a deceased passenger.

On November 6, 1978, a 1975 Ford pick-up being driven by Roy Scott Champagne, age seventeen, crossed the center line of State Highway 183 in Bryant, Arkansas, striking an oncoming truck belonging to Reynolds Metal Company. Deborah L. Farnsworth, a guest passenger in the Champagne vehicle, sustained fatal injuries in the accident. Glen Dale Farnsworth, special administrator of the estate of Deborah Farnsworth, brought this suit for wrongful death.

From an adverse judgment below, the appellants, Roy Scott Champagne and Frank R. Champagne, his father, bring this appeal urging that the trial court erred in failing to direct a verdict in favor of the appellants on the ground that there was insufficient evidence of willful and wanton misconduct by Roy Scott Champagne, as required by the Arkansas guest statute, to warrant submitting the issue to" the jury. We think the trial court was correct.

The Arkansas guest statute, Ark. Stat. Ann. § 75-913, provides:

No person transported as a guest in any automotive vehicle upon the public highways or in aircraft being flown in the air, or while upon the ground, shall have a cause of action against the owner or operator of such vehicle, or aircraft, for damage on account of any injury, death or loss occasioned by the operation of such automotive vehicle or aircraft unless such vehicle or aircraft was wilfully and wantonly operated in disreguard of the rights of the others. (Emphasis supplied.)

In Cooper v. Calico, 214 Ark. 853, 218 S.W. 2d 723 (1949), we stated the test for the element of willful negligence required by the statute in this manner:

[T]o be wilfully negligent one must be conscious of his conduct — that is, he must, in light of surrounding circumstances, comprehend that his act will naturally or probably result in injury.
Cooper, at 857-858.

See also, Stewart v. Thomas, 222 Ark. 849, 262 S.W. 2d 901 (1953).

In the oft cited case of Scott v. Shairrick, 225 Ark. 59, 279 S.W. 2d 39 (1955), we said that:

[Ojne must be conscious of his conduct, and, although having no intent to injure, must be conscious, from his knowledge of surrounding circumstances, that his conduct will naturally and probably result in injury. Scott, at 65.

In the present case, the driver was traveling at approximately 70 to 80 miles per hour in the rain, and there was testimony, that the driver was aware that the right front tire of his vehicle had worn slick. There was also testimony that even after the vehicle began to go out of control, or to “fishtail,” the appellant’s truck failed to slow down over a span of 800 to 1000 feet leading up to the collision.

The case most factually similar to this case seems to be Tiner v. Tiner, 238 Ark. 222, 379 S.W. 2d 425 (1964). In Tiner, the defendant driver was traveling at a rate of approximately 80 miles per hour during a rain storm. The testimony was that even after the car began to “fishtail” the driver did not slow down. In Tiner, we held that this evidence was sufficient to submit the issue of willful and wanton negligence to the jury.

Appellant invokes Splawn v. Wright, 198 Ark. 197, 128 S.W. 2d 248 (1939) as comparable, and argues that the Splawn case is more compelling. There we upheld the trial court in granting the defendant’s motion for a directed verdict. We disagree with appellants’ assessment of the Splawn decision. In both cases, a rain slick highway added to the hazardous conditions, but in Splawn, the evidence of speed was 40 to 45 miles per hour, vastly different from the 70 to 80 miles per hour ascribed to the Champagne vehicle. Too, in Splawn, there was no evidence of badly worn tires, a factor which adds something to the degree of conscious disregard demonstrated by the driver for the safety of himself and his passengers.

Appellants attribute even greater strength to the Splawn case because of the absence of evidence that the passengers here objected to the conduct of the driver, an interesting argument. Since the driver has lost all recall and the two passengers were killed instantaneously, what may have been said within the vehicle just prior to the event is sealed by the tragic misfortune itself. It would seem manifestly unfair if, under such circumstances, we were compelled to presume from their silence that the passengers voiced no objection to what was occurring. Whether they did or did not is better left, we believe, in repose.

In the present case, we believe that the totality of the circumstances, the high rate of speed, the weather and highway conditions, the condition of the tires, and the apparent absence of any reduction in speed were sufficient to warrant allowing the jury to decide the issue of the willful and wanton operation of the appellant’s vehicle. We cannot say that the trial court erred as a matter of law in denying the motion for directed verdict by the defendants.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Randall Edward FAIR, a Minor by and through his natural father and best friend, and Zane FAIR, Individually v. Clarence E. DUNCAN
    80-258
    612 S.W. 2d 123
    Supreme Court of Arkansas
    Opinion delivered March 2, 1981

      Zane Fair, pro se.
    No brief for appellee.
   Per Curiam.

Appellant brought suit below for personal injuries to his minor son and property damage to a motorcycle belonging to appellant, as the result of a motor vehicle collision between appellant’s son and the appellee on August 28, 1975. A unanimous jury verdict in favor of defendant-appellee was returned and appellant appeals on seven assignments of error.

Appellant’s brief contains nothing in the way of an abstract other than pleadings and he has cited no authority in support of the alleged errors. It would be impossible to give intelligent consideration to any of appellant’s points of error on the basis of appellant’s brief. We therefore affirm due to failure to comply with Rule 9(e)(2) of the Rules of the Supreme Court. Umholtz v. Allen, 254 Ark. 722, 495 S.W. 2d 874 (1973); Dickson v. Harpole, 238 Ark. 775, 384 S.W. 2d 472 (1964).

Affirmed.


author: Frank Holt, Justice. Richard B. Adkisson, Chief Justice, Darrell Hickman, Justice,

text:
    PULASKI COUNTY MUNICIPAL COURT, David HALE, its Judge, et al v. Elizabeth A. SCOTT
    81-11
    612 S.W. 2d 297
    Supreme Court of Arkansas
    Opinion delivered March 4, 1981

      Wilbur C. Bentley, Pros. Atty., Sixth Judicial Circuit; Larry C. Page, Deputy Pros. Atty.; James L. Sloan; Steve Clark, Atty. Gen., and R. B. Friedlander, Asst. Atty. Gen., for appellants and cross-appellees.

      Robert R. Cortinez, for appellee and cross-appellant.
   Frank Holt, Justice.

Appellee was charged in Pulaski County Municipal Court with a traffic violation. She moved to dismiss for lack of jurisdiction, asserting that Act 123, Ark. Acts of 1979 (Ark. Stat. Ann. § 22-759 et seq. [Supp. 1979]), which established the court, is unconstitutional. That court declined to rule on the motion and the circuit court granted her petition for writ of certiorari. Since the validity of a state statute was questioned, the appellant attorney general was required to intervene. Ark. Rules of Civ. Proc., Rule 24 (a), (b) and (c) and Ark. Stat. Ann. § 34-2510 (Repl. 1962). The circuit court ruled the provisions of the act establishing a county municipal court are valid pursuant to Art. 7, § 1 Arkansas Constitution (1874). However, that portion of the Act authorizing the county judge to appoint the judge of that court is unconstitutional by virtue of Art. 7, § 50 of our Constitution and Amendment 29, which require vacancies in an office to be filled by appointment of the governor pending the next general election. By direct appeal appellants challenge the court’s finding that the appointment provision is unconstitutional; by cross-appeal appellee questions the court’s finding that the county municipal court was validly created.

We first consider the issue of the constitutionality of the court. Appellee, cross-appellant, contends our Constitution does not grant the legislature the power to authorize the creation of a county municipal court. We first observe certain fundamental rules in construing the validity of a legislative act. In The State v. Chester Ashley et al, 1 Ark. 513 (1839), we said: “The legislature ... can exercise all power that is not expressly or impliedly prohibited by the constitution; for whatever powers are not limited or restricted, they inherently possess as a portion of the sovereignty of the State.” In Baratti v. Koser Gin Company, 206 Ark. 813, 177 S.W. 2d 750 (1944), we held:

. . . [T]hat the constitution of this state is not a grant of enumerated powers to the Legislature, not an enabling, but a restraining act ... and that the Legislature may rightfully exercise its powers subject only to the limitations and restrictions of the Constitution of the United States and of the State of Arkansas . . . that an act of the Legislature is presumed to be constitutional, and will not be held by the courts to be unconstitutional unless there is a clear incompatibility between the act and the Constitution; and further, that all doubt on the question must be resolved in favor of the act . . . the elementary rule is that every reasonable construction must be resorted to in order to save the statute from unconstitutionality.

See also State v. Moore, 16 Ark. 197 (1905). As recently as Hooker v. Parkin, 235 Ark. 218, 357 S.W. 2d 534 (1962), we reiterated that “the Legislature (which is made up of the people’s elected representatives and spokesmen) has absolute power and authority to legislate in all fields unless prohibited or restricted from doing so by the State Constitution ..

With these rules in mind, we consider both aspects of the questioned validity of the statute in question. Art. 7, § 1 provides:

The judicial power of the State shall be vested in one Supreme Court, in circuit courts, in county and probate courts, and in justices of the peace. The General Assembly may also vest such jurisdiction as may be deemed necessary in municipal corporation courts, courts of common pleas, where established, and, when deemed expedient, may establish separate courts of chancery. (Italics supplied.)

Appellee, cross-appellant, interprets this provision to mean that the General Assembly is empowered only to establish municipal corporation courts, courts of common pleas and chancery. She buttresses her argument pointing out that Art. 7, § 43 of our Constitution speaks only of “corporation courts for towns and cities” in its provisions:

Corporation courts for towns and cities may be invested with jurisdiction concurrent with justices of the peace in civil and criminal matters, and the General Assembly may invest such of them as it may deem expedient with jurisdiction of any criminal offenses not punishable by death or imprisonment in the penitentiary, with or without indictment, as may be provided by law, and, until the General Assembly shall otherwise provide, they shall have the jurisdiction now provided by law.

However, appellants assert that Art. 7, § 1, which provides for our judicial system, does not so limit corporation courts, but speaks of “municipal corporation courts,” with the right of the General Assembly to vest such jurisdiction in them as it deems necessary. Thus, they argue, the framers contemplated the term “municipal corporation courts” to encompass more than just “courts for towns and cities.”

We have long recognized that counties are municipal corporations. Eagle et al v. Beard et al, 33 Ark. 497 (1878); Roberts, Co. Judge v. Watts, Co. Clerk, 263 Ark. 822, 568 S.W. 2d 1 (1978); and City of Hot Springs v. Gray, 215 Ark. 243, 219 S.W. 2d 930 (1949). In the latter case we said:

We have many times announced the rule that: ‘ “Counties, cities, and towns, * * * are municipal corporations, created by the authority of the Legislature; and they derive all their powers from the source of their creation, except where the Constitution of the State otherwise provides.” ’

Furthermore, we have also recognized the validity of a legislative act which gives municipal courts countywide jurisdiction, stating that “[n]o limitation is found in the Constitution upon the power of the Legislature to vest jurisdiction in municipal courts, when established, beyond the geographical limits of municipalities. Nor can it be said that there exists any policy or sound reason for restricting the jurisdiction to such geographical limits.” State ex rel. Wm. L. Moose v. Woodruff, 120 Ark. 406, 179 S.W. 813 (1915).

Consequently, we hold that Art. 7, § 1, which empowers our General Assembly with the authority to create municipal corporation courts, includes the authority to create county municipal corporation courts. Additionally, nowhere in our Constitution is the establishment of the court in question prohibited either expressly or impliedly. Therefore, we affirm the circuit court’s finding that the act creating the court in question is constitutional.

Since we hold the court was validly created by the legislature, the remaining issue is the validity of the manner in which the judge of that court is selected. The act authorizes appointment by the county judge. Appellee, asserting this is impermissible, relies upon Art. 7, § 50 and Amendment 29, § 1. Section 50, relied on by the trial judge, provides:

All vacancies occurring in any office provided for in this article shall be filled by special election, save that in case of vacancies occurring in county and township offices six months and in other offices nine months, before the next general election, such vacancies shall be filled by appointment of the Governor.

Amendment 29, § 1 provides:

Vacancies in the office of United States Senator, and in all elective state, district, circuit, county, and township offices except those of Lieutenant Governor, Member of the General Assembly and Representative in the Congress of the United States, shall be filled by appointment of the Governor.

In McCraw v. Pate, 254 Ark. 357, 494 S.W. 2d 94 (1973), we held that “[i]t is abundantly clear that Amendment 29 completely eliminated and superseded section 50 of Art. 7...” Clearly, Amendment 29 provides only for the manner in which a vacancy is filled in an elective office. It does not appear our Constitution requires the position here to be an elective one. As stated previously, our Constitution is not a grant of enumerated powers to the legislature, rather it is a restraining act only. If the legislature has the power to create the office under the provisions of the Constitution, it is not unreasonable to conclude it also has the power to provide the manner of filling that office, its tenure, and all other necessary provisions to make the organization of the court complete and effective. The question of whether the office should be filled by appointment or election addresses itself to the wisdom of our legislature.

Applying the rules of statutory construction, previously discussed, the writer of this opinion, the Chief Justice and Justice Hays are of the view that the legislative act providing for the appointment of the judge of the court by the county judge is a valid exercise of its authority. Justices Purtle and Dudley are of the contrary view. Justices George Rose Smith and Hickman do not reach this issue since they regard the court as being invalidly created. Consequently, a majority fails to agree with respect to the validity of the appointment, which results in the affirmance of the trial court’s interpretation that the appointment is invalid.

Affirmed on direct appeal and on cross-appeal.

Adkisson, C.J., concurs; Purtle and Dudley, JJ., concur in part and dissent in part; George Rose Smith and Hickman, JJ., dissent.

Richard B. Adkisson, Chief Justice,

concurring. I join the opinion written by Justice Holt. I concur merely to state that we do not reach the issue of whether the judge of one Pulaski County municipal court with county-wide jurisdiction may come into office by appointment, as here, while others must be elected.

Robert H. Dudley, Justice, concurring in part, dissenting in part. I concur in finding the act creating the Pulaski Municipal Court is valid, and that the manner of selection of the judge, whether elective or appointive, is a valid exercise of legislative authority. However, the General Assembly may not exercise that authority in a manner which might not afford a litigant an impartial tribunal, and that has occurred in § 3 (a) of this act.

Due process of law, as guaranteed by the Fourteenth Amendment, requires that a litigant be afforded a trial by an impartial court. This is not a new concept, but rather is a bedrock principle dating back, at the least, to 1610 when Lord Coke stated the common law maxim that no man can be a judge of his own case, which is an expression of this principle, and thus voided an act of Parliament tending to contravene it. See Bonham’s Case, 8 Coke 1136, 77 Eng. Reprint 646 (1610).

We have held that a litigant is denied due process of law when subjected to trial before a justice of the peace who receives fees and costs only when the accused is convicted. Doty v. Goodwin, 246 Ark. 149, 437 S.W. 2d 233 (1969).

The Supreme Court of the United States most recently discussed the issue of trial before a disinterested and impartial judicial officer in Ward v. Monroeville, 409 U.S. 57 (1972). In that case the Mayor of Monroeville, Ohio, while sitting as a traffic judge, found Ward guilty of two traffic offenses and fined him $50 for each offense. The Ohio Court of Appeals and Ohio Supreme Court affirmed the convictions. The United States Supreme Court reversed because the mayor’s responsibility for village finances, a major part of which was derived from fines and costs imposed by the mayor’s court, made the trial a violation of the Fourteenth Amendment’s due process guaranty of a trial before a disinterested and impartial judicial officer. The Court held that the right to an appeal does not cure the defect as an accused is entitled to a neutral and detached judge in the first instance.

There is no evidence in this case indicating the amount of revenue which Pulaski County expects to receive from this municipal court. However, we do take notice of the most recent accounting of Arkansas courts by the Judicial Planning Council, a committee appointed by this court. That accounting is published in The Financing of Arkansas Courts (1980). Table 21 reflects that in 1978 municipal courts in Arkansas produced revenues of $11,266,938 at a cost of $1,577,000. Table 18 states that $4,471,851 of revenues were collected at municipal levels in Pulaski and Perry Counties in 1978. Municipal courts produce substantial amounts of revenue and § 4 of the statute in dispute provides that Pulaski County shall receive all revenue produced by this court.

The county judge has executive responsibility for the financial affairs of the county. Municipal courts are substantial revenue producing courts. Clearly the county judge could not sit as a municipal court judge, for the reason stated in Ward v. Monroeville, supra at 60.

Plainly that “possible temptation” may also exist when the Mayor’s executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the Mayor’s court.

Section 3 (a) of the act in question gives to the county judge the power to appoint the municipal judge. The office of county judge in Arkansas is comparable to that of mayor in Ohio, as both are the chief financial officers of their respective governmental units.

If the county judge cannot sit as a judge on this type of court, he should not be given the power to decide who does sit. The impartiality of the county judge could be so diminished that he or she might not act in a disinterested fashion in selecting the person to serve in a judicial capacity. A maxim of common law is no one can do that indirectly which cannot be done directly. .

We must anticipate the future effect this type of appointment procedure would have on our justice system. If a mayor or a county judge becomes dissatisfied with the revenues produced by a fair and just municipal judge, that mayor or county judge could ask his legislator to pass, by “local courtesy,” a bill giving him the power to appoint the municipal judge. Given this set of circumstances, at what stage would our municipal courts become more interested in revenue production than in justice? Litigants in this State might not be afforded the impartial and disinterested judge which they are guaranteed by the Fourteenth Amendment.

While neither side of the present case has argued the issue of the impartiality of a court, it is so fundamentally important that I have written this opinion without benefit of briefs and arguments on the subject. Obviously, this is not the preferable way to develop an issue and to write an opinion. The dangers are apparent. However, the practical application of the plurality opinion is so discomforting that I have decided it is best to hand this opinion down, even without the issues having been fully developed in the traditional adversary manner.

This opinion is involved with legal principles only. There is no hint of impropriety by any of the individuals involved in this particular case.

I find all sections of the act valid except § 3 (a) providing for appointment by the county judge. As the county judge had no power to make the appointment, a vacancy exists and should be filled under the general laws of this state.

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

Darrell Hickman, Justice,

dissenting. The majority has found constitutional an act creating a new court, a “County Municipal Court.” This is not only contrary to our constitution but a breach of faith with those precedents that have interpreted our constitution differently.

There is no such thing as a “County Municipal Court.” Only by a tortuous route can a case be made for such a creature. My examination of the problem does not start and end with Section 1, Article 7, of the Judicial Article, but encompasses all fifty-two sections of that article and other sections of the constitution that are pertinent.

The majority’s simplistic approach, which is that anything the constitution does not forbid is proper, is essentially one that avoids interpreting the constitution. That is not the only test we should apply. It is the duty of this court to construe constitutional sections so that the instrument as a whole is harmonious, if at all possible. Ex Parte King, 141 Ark. 213, 217 S.W. 465 (1919). The constitution must be considered as a whole and to interpret any part of it we must read that part in the light of other provisions relating to the subject. Chesshir v. Copeland, 182 Ark. 425, 32 S.W. 2d 301 (1930). The constitution must be construed according to the sense of the terms used and the intentions of its authors. State v. Scott, 9 Ark. 270 (1849). These are the rules that we must follow when we read the constitution.

Beginning with Section 1 of Article 7 we find that eight courts are mentioned: A supreme court, circuit courts, county and probate courts, justices of the peace, municipal corporation courts, courts of common pleas, and chancery courts. No other courts can be created by the General Assembly. We have held that beyond these enumerated courts the General Assembly does not have the power to create courts. Ward School Bus Mfg. Co. v. Fowler, 261 Ark. 100, 547 S.W. 2d 394 (1977).

In Jansen v. Blissenbach, 214 Ark. 755, 217 S.W. 2d 849 (1949) we held that a referee for probate court could not become, in effect, a second or deputy probate judge.

In Nixon v. Allen, 150 Ark. 244, 234 S.W. 45 (1921) we held unconstitutional a legislative act providing for different persons to be county and probate judge. The power of the General Assembly to alter the judicial system is very limited.

Section 1, Article 7, cannot be read by itself. The remaining sections of the Judicial Article spell out in every instance the eight approved courts, describing their duties and their jurisdiction. The article, with all its sections, provides for a complete and comprehensive judicial system. Nowhere in it is there any mention of a “County Municipal Court.”

The jurisdiction and powers of the Supreme Court are set forth in Section 4; Circuit Courts in Sections 11-14; Chancery Courts in Section 15; County Courts in Section 28; Court of Common Pleas in Section 32; Probate Courts in Section 34; Justices of the Peace in Section 40, and Corporation Courts for cities and towns in Section 43.

The jurisdiction of these courts is defined to avoid conflict: The jurisdiction of courts in cities and towns is spelled out to prevent conflict with justices of the peace; jurisdiction of justices of the peace courts is defined to avoid conflict with the circuit courts, Section 40. Courts of common pleas are limited to matters of contract and other civil matters not involving title to real estate. The jurisdiction of the supreme court is limited to appellate jurisdiction, a provision we have had to enforce. The General Assembly cannot add to or take away from that jurisdiction. Harding v. State, 94 Ark. 65, 126 S.W. 90 (1910). It is with these sections of the constitution and precedents in mind that we should examine the problem and not in the limited way the majority uses. The majority essentially rests its decisión on two words and a case. The words are “Municipal Corporations” and the case is City of Hot Springs v. Gray, 215 Ark. 243, 219 S.W. 2d 930 (1949). “Municipal Corporations” is interpreted to mean “county” in this instance, without regard to any comprehension of the Judicial Article.

The constitution, in defining municipal corporation courts as authorized in Section 1, Article 7, provides in Section 43: Corporation Courts for Cities and Towns. The constitution does not say “corporation courts for cities, towns and counties.” In fact, I am firmly of the view that the great mischief behind this case was our decision in State v. Woodruff 120 Ark. 406, 179 S.W. 813 (1915). We held, contrary to all principles of government, that a Little Rock Municipal Court had jurisdiction county-wide. This is the only government entity to my knowledge that has powers beyond its borders. That decision, however wrong in my judgment, has been the law so long it probably cannot be overturned. But this should not lead to the conclusion that if a city court can have jurisdiction county-wide, a county municipal court is justified. The majority also relies on the fact that sometimes a county is a municipal corporation. But a county is not always a municipal corporation, sometimes it is a county.

We should examine the constitution further to see what the framers meant in Section 1, Article 7, when they authorized Municipal Corporation Courts:

Article 12 of the Arkansas Constitution deals with the subject of municipal and private corporations. Section 4 starts out, “No municipal corporations shall be authorized ...” Then it mentions, “The fiscal affairs of counties, cities and incorporated towns shall ...” [Emphasis added.] There is no doubt that in this section a county is included in the definition.

Section 5 reads: “No county, city, town or other municipal corporation shall ...” [Emphasis added.]

Section 12 says: “Except as herein otherwise provided, the State shall never assume or pay the debt or liability of any county, town, city or other corporation.” [Emphasis added.]

In every instance where there would be any doubt, the county is mentioned in the section concerning municipal corporations. Therefore, we can conclude the framers included counties specifically in a class with cities and towns when they intended to. Looking back to the Judicial Article we find no place where it says “County Municipal Court.” Section 43 mentions municipal corporation courts in cities and towns only. Why did the framers not provide for county municipal courts? The framers did not provide for such courts because they never dreamed of a county-wide court like the “Municipal” Court that was created in this case. Indeed, I would suggest they never dreamed of the one we approved in Woodruff. Article 7 creates a comprehensive court system, with jurisdiction of minor matters, out in a county, to be dealt with by the justices of the peace or the courts of common pleas. In cities and towns the court is a municipal court. That is the extent of the subject.

It was never thought of by anyone, to my knowledge, that an appellate court of appeals could be created except by constitutional amendment. In fact, the Court of Appeals was created by constitutional amendment, Amendment 58. Section 1, Article 7, does not say that the General Assembly cannot create such a court. It simply says there will be one supreme court.

Applying the logic of the majority a court of appeals could have been created by a legislative act because our Court of Appeals is not a Supreme Court; the constitution does not prohibit it so it can be done. Such a view of the constitution leads to distortions or, as in this case, a mutation — a “county municipal court.”

I would, of course, reverse the trial judge on this issue and find the legislative act unconstitutional. I would not reach the second issue which gives a majority of this court some difficulty. Having approved a court not authorized by the constitution, i.e., the County Municipal Court, some members of the court find that they must also approve a new way to select judges — appointment by the county judge. Others find that method illegal for reasons not argued. No matter how this “County Municipal Court” is dressed up, it still remains a court created by the General Assembly with the acquiescence of a majority of this court; it is not a court authorized by our constitution.

The unrestricted mischief that this creature will create cannot be ignored. Every county can now create its own traffic court. The temptation of such a proven source of revenue will be too great to resist. No doubt competition will abound between “city” municipal courts and “county” municipal courts since the constitution provides no guidelines regarding the authority or jurisdiction between such courts. The reason, of course, is that the constitution never contemplated that there would be such courts. All of this could be avoided if we would simply abide by the constitution.

I am authorized to state George Rose Smith, J., joins this dissent.


author: Richard B. Adkisson, Chief Justice.

text:
    Walter Talmadge SWAITE and Tommy Lynn SWAITE v. STATE of Arkansas
    CR 80-222
    612 S.W. 2d 307
    Supreme Court of Arkansas
    Opinion delivered March 9, 1981

      E. Alvin Schay, State Appellate Defender, by: Jackson Jones, Deputy Defender, for appellants.

      Steve Clark, Atty. Gen., by: C. R. McNair, HI, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

After a trial by jury, appellants, Walter Swaite and Tommy Swaite, were each convicted and sentenced to five years for aggravated robbery and ten years for the attempted capital murder of Bill Junkin, and to one year for the aggravated assault of Glenda Junkin, and to one year for the aggravated assault of Connie Craft.

On the night of January 4, 1980, two men wearing ski masks entered a liquor store in Harrisburg. One had a .38 caliber revolver and the other had a .45 caliber automatic pistol. Bill Junkin, the owner of the store, saw them and told Glenda Junkin, his wife, and Connie Craft, his daughter, to lie on the floor. One of the robbers pointed a pistol at Bill Junkin who whipped out a pistol and yelled, “Hold it or I will blow your head off.” The robber with the .38 caliber pistol fired and the bullet broke a half-gallon of whiskey sitting on a shelf right over Junkin’s head. Junkin then shot at the robber holding the .45 caliber automatic, who instantaneously returned the shot; Junkin ducked behind a counter. The robber with the .45 then fired two more rounds which hit the counter. These latter shots passed close to the head of Junkin’s wife and all of the shots were within ten feet of his daughter.

At the time the shots were being fired, the victims heard a third person running behind the store. Then all three robbers ran to a parked car where a fourth person was waiting. Junkin fired two shots at the car as the four escaped.

I

Appellants argue that they committed only one crime during this criminal escapade and to convict them of more than one violates the United States Constitutional prohibition against double jeopardy and Ark. Stat. Ann. § 41-105 (l)(a)(2)(a) (Repl. 1977), which provides:

(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the other, as defined in subsection (2); ...
(2) ... An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged; ...

Appellants are correct in their argument that to convict, under these circumstances, of attempted capital murder under Ark. Stat. Ann. § 41-1501 (Repl. 1977) and Ark. Stat. Ann. § 41-701 (Repl. 1977), and aggravated robbery under Ark. Stat. Ann. §§ 41-2102 and -2103 (Repl. 1977) for the same conduct is prohibited by the provisions of § 41-105 quoted above.

The issue is whether one of these offenses is included in the other and is established by proof of the same or less than all the elements required to establish the commission of the other offense. If so, an entry of judgment of conviction on both of these charges will fall under the prohibition of Ark. Stat. Ann. § 41-105 (l)(a)(2)(a) (Repl. 1977).

In determining this issue we must examine the language of our capital murder statute which provides:

Ark. Stat. Ann. § 41-1501 (Repl. 1977):

Capital murder. — (1) A person commits capital murder if:
(a) acting alone or with one or more other persons, he commits or attempts to commit rape, kidnapping, arson, vehicular piracy, robbery, burglary, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; ...

The language of our capital murder statute requires that a death be caused in the furtherance of the commission or attempt to commit any one of seven specific felonies. Proof of the elements of that specific felony, or its attempt, must, by definition, be had to support a conviction of the capital crime, or its attempt. It follows logically that, in proving the specified felony, there must be proof of “the same or less than all the elements required to establish the commission” of the capital offense (in this case, the attempted capital murder) and the specified felony is thus an “included” offense within the double-conviction prohibition of Ark. Stat. Ann. § 4l-105(l)(a)(2)(a); therefore, § 41-105 prohibits the conviction of both an attempt to commit a greater offense and a lesser included offense arising from the same conduct.

The same principle applies, where, for the same conduct, a conviction is sought for attempted aggravated robbery and robbery. By way of clarification, the statutory provisions for these crimes are:

Ark. Stat. Ann. § 41-2102 (Repl. 1977):

Aggravated robbery. — (1) A person commits aggravated robbery if he commits robbery as defined in section 2103 (§ 41-2103) and he:
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or
(b) inflicts or attempts to inflict death or serious physical injury upon another person. ...

Ark. Stat. Ann. § 41-2103 (Repl. 1977):

Robbery. — (1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.

The aggravated robbery statute, like the capital murder statute, by definition includes a specified lesser offense. It is obvious here that a conviction cannot be had under these statutes for attempted aggravated robbery and robbery when the same conduct establishes the commission of both offenses.

Appellants, also, correctly distinguish Rowe v. State, 271 Ark. 20, 607 S.W. 2d 657 (1980), where proper objections were not made in the trial court and where reliance was upon subsection (l)(e) of Ark. Stat. Ann. § 41-105 rather than subsection (l)(a).

Therefore, for the reasons stated, the convictions for attempted capital murder and aggravated robbery are remanded to the trial court to set aside judgment of conviction for one of these offenses which was entered contrary to the provisions of Ark. Stat. Ann. § 41-105.

Appellants are incorrect in their contention that there exists a statutory or constitutional prohibition against convictions for the aggravated assaults committed against Glenda Junkin and Connie Craft. Although these crimes were committed in the same escapade, they were not of the same conduct because they were committed against different persons. By statutory definition there are added elements of proof — different victims.

The United States Supreme Court stated in Whalen v. United States, 445 U.S. 684, 691 (1980) that:

[M]ultiple punishments cannot be imposed for two offenses arising out of the same criminal transaction [escapade] unless each offense ‘requires proof of a fact which the other does not.’ The clause refers, of course, to a rule of statutory construction stated by this Court in Blockburger v. United States, 284 U.S. 299, and consistently relied on ever since to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively.

The United States Supreme Court addressed the issue of multiple offenses arising from one escapade in Ashe v. Swenson, 397 U.S. 436 (1970) where an acquittal on a charge of robbing one of several participants in a poker game established that the accused was not present at the robbery; the Court held that principles of collateral estoppel embodied in the Double Jeopardy Clause barred prosecutions of the accused in a subsequent proceeding for robbing the other victims. Later, in Brown v. Ohio, 432 U.S. 161, 166 n.6 (1976), the Supreme Court concluded that separate convictions for the robbery of each victim in Ashe could have been had under the Blockberger test since each case required proof that a different individual had been robbed.

II

Appellants next contend that, if there was no double jeopardy, the evidence presented was insufficient to support the various convictions. On appellate review we affirm if there is any substantial evidence, when viewed most favorably to appellee, to support the jury’s findings. Pope v. State, 262 Ark. 476, 557 S.W. 2d 887 (1977).

We have upheld a conviction for attempted capital murder by the combined usage of the attempt statute, Ark. Stat. Ann. § 41-701, and the capital murder statute, Ark. Stat. Ann. § 41-1501. Stout v. State, 263 Ark. 355, 565 S.W. 2d 23 (1978). The State is not required to prove a premeditated murder. The intent to kill is immaterial. White v. State, 266 Ark. 499, 585 S.W. 2d 952 (1979). Robbery is one of the felonies enumerated in the capital murder statute, and after robbery was proven, the State had to prove some additional action, which, under the circumstances, manifested extreme indifference to the value of human life.

Bill Junkin, the liquor store owner, identified Tommy Swaite as one of the two robbers who shot at him and shot near his wife and daughter. His testimony about the shooting is substantial evidence from which the jury could find the additional element that Tommy Swaite’s actions manifested an extreme indifference to human life.

Walter Swaite also contends the evidence is insufficient to support his conviction. Neither the store owner nor his wife or daughter could identify Walter, but they testified that while Tommy and another person were inside the store, a third person was out back. When the shooting started, that person ran into some signs or an old air compressor and ran against the back of the building with such force that bottles were almost knocked off the top of the shelf.

Bill Junkin saw this third man tearing off his mask as he got to the left rear door of the get-away car. Junkin observed his height, weight, type of beard, style of hair and plaid coat. The car used in the affair belonged to Walter Swaite.

A description of the car was broadcast over the police radio, and a short time later an officer identified the car as it passed on his left side. He saw two people in the front seat of the car and saw that one of the two in the back seat had on a plaid coat. The officer chased the fleeing car at high speeds until they came to Farm Hill Road, a gravel road about eight miles south of Harrisburg. Here the fleeing car stopped momentarily, and two people got out and ran to a nearby pasture. The driver and one passenger sped away, only to be captured in a short time.

One of the State’s witnesses testified that at 6:15 the next morning he picked up a hitchhiker one and one-half or two miles from the place on Farm Hill Road where two of the robbers jumped from the fleeing car. The hitchhiker was Walter Swaite. His pants leg was torn and he had an injury compatible with running into the air compressor behind the building. This witness’s description of the height, weight, hair, beard and coat of Walter Swaite is identical to the description given by the liquor store owner. This witness testified that Walter told him that he had been coon hunting all night.

At the trial Walter Swaite testified that he never left home on the night in question.

The conflicts and inconsistencies of witnesses are for resolution by the jury. When the testimony in this case is viewed in the light most favorable to appellee, there is sufficient evidence from which the jury could determine that Walter Swaite was guilty. There is no distinction between the criminal responsibility of an accomplice and the person who actually commits the crime. Ark. Stat. Ann. §§ 41-302, -303 (Repl. 1977). Parker v. State, 265 Ark. 315, 578 S.W. 2d 206 (1979).

Ill

Appellant Walter Swaite also contends that the trial court committed error in not making a record of the factors considered in making his sentences run consecutively. The record in this case does not reflect the trial judge failed to exercise discretion in ordering the sentences to run consecutively. But, to the contrary, in these cases the trial court considered the background and age of Tommy Swaite before entering judgment and making his sentences run concurrently; immediately thereafter, Walter Swaite’s sentences were made to run consecutively; the difference in the sentences demonstrates the court exercised discretion.

This case is distinguished from Acklin v. State, 270 Ark. 879, 606 S.W. 2d 595 (1980) because in Acklin the trial judge indicated he might not have exercised discretion, but rather imposed consecutive sentences as a matter of policy either because the defendant asked for a jury trial without any defense, or else it was his rule to always direct that jury sentences run consecutively.

IV

Finally, appellants contend they are entitled to credit against their sentences for time spent in custody prior to trial. Appellants are entitled to this credit, but we do not reach this point on appeal. The trial judge announced in open court at the time of sentencing that appellants were entitled to this credit, but the orders of commitment do not so provide. There is no showing that this has ever been brought to the attention of the trial judge, and until it is, we will not consider the matter.

Affirmed in part. Reversed and remanded in part.

Purtle and Dudley, JJ., dissent.


author: George Rose Smith, Justice.

text:
    Carl WELCH and WELCH MOTOR COMPANY v. Wendell HOOD, Executor in Succession
    80-273
    613 S.W. 2d 88
    Supreme Court of Arkansas
    Opinion delivered March 9, 1981
    [Rehearing denied April 13, 1981.]

      Eilbott, Smith, Eilbott & Humphries, for appellants.

      Howell & Price, P.A., for appellee.
   George Rose Smith, Justice.

In 1966 E. W. Hood leased a building to Carl Welch, who used it in part as a shop for the painting of cars. The building was uninsured when it was destroyed by fire in 1969- In this action by the landlord to recover compensation for the loss, the tenant relies on this clause in the lease to exempt him from liability: “It is agreed that the Lessee shall not be liable to restore any damage caused by fire, windstorm or any other casualty beyond his control.” The case has been in this court on two earlier appeals. Hood v. Welch, 249 Ark. 1159, 463 S.W. 2d 362 (1971);Hood v. Welch, 256 Ark. 362, 507 S.W. 2d 503 (1974). Our jurisdiction comes from Rule 29 (1) (j).

After the second remand the case was submitted to the trial judge for decision on the record made at the trial after the first remand. The court found that the fire was caused by the negligence of the tenant’s employees and awarded a #30,130 judgment to the landlord. For reversal the tenant argues only that the lease is ambiguous and should have been construed by the trial court against the landlord, who assertedly prepared it. (The appellee criticizes the appellants’ failure to abstract the judgment, but the appellee has supplied the only important finding, that the tenant’s negligence caused the fire.)

On the first appeal we held that the clause now in question is ambiguous. The testimony taken later, however, did not compel the trial judge to resolve that uncertainty in favor of the tenant as a matter of law. To begin with, it is not shown beyond dispute that the landlord actually prepared the lease. Rather, the proof is so fragmentary that the trial judge was not required to decide that issue either way and apparently did not do so.

Second, and more important, a rule of contractual construction is not an inflexible command that leaves the trial judge with no choice except to follow it. The rule that a contract is to be interpreted against the party preparing it is merely one of many rules of construction, which often suggest contrary results in a particular case. Such rules are general in character and serve merely as guides to achieving a final result, here the determination of the parties’ intention. See Restatement of Contracts, § 235, Comment# (1932). Our opinion on the first appeal mentioned a countervailing rule favoring the landlord, that courts are reluctant to find an intent by one party to assume responsibility for the other party’s negligence. That first opinion held in substance that the interpretation of this lease is a mixed question of law and fact to be determined in the light of testimony. The tenant, as appellant, now argues only that the lease should be construed against the landlord because he supposedly prepared it. That argument falls short of demonstrating that the trial court’s decision is clearly erroneous. Indeed, if the issue had not been subject to being decided in favor of either party, we would not have remanded the case for trial.

Affirmed.


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

text:
    Ollis HEARD, Hollis HEARD, and Richard FERGUSON v. STATE of Arkansas
    CR 80-133
    612 S.W. 2d 312
    Supreme Court of Arkansas
    Opinion delivered March 9, 1981

      John C. Johnson, Jr., for appellants.

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

The three appellants, Ollis and Hollis Heard, twins, and Richard Ferguson, were charged with burglary, with theft of property, and with having two or more previous felony convictions each. At the end of the first stage of a bifurcated trial the court submitted verdict forms only with respect to burglary, overlooking the charge of theft of property. Consequently the jury found the defendants guilty only of burglary. Nevertheless, in the second stage of the trial the jury, without objection, was permitted to fix sentences as follows: Ollis Heard, 20 years for burglary and 10 for theft; Hollis Heard, 10 years for burglary and 3 for theft; Ferguson, 3 years for burglary and 2 for theft. In this appeal from a judgment sentencing all three defendants to imprisonment for both offenses, seven points for reversal are argued.

We need not state the proof in detail, because the sufficiency of the evidence to support the convictions is not questioned. On the night of January 19, 1978, the General Telephone Company office at Stuttgart was broken into, and the company’s safe was taken. The safe was later found in an area near Almyra, about 12 miles southeast of Stuttgart. The safe had been chopped open, checks payable to the company were scattered about near the safe, and a gray metal cashbox was missing.

On the night of the burglary the three defendants, riding together in a pickup truck, had gotten stuck in a ditch about halfway between Stuttgart and Almyra and had been pulled out by a witness for the State. Paint scrapings taken from the safe and from paint marks found on the bed of the truck, when scientifically examined, showed almost conclusively that the safe had been transported in the truck bed. Hollis Heard, the only defendant who testified, admitted that the three men got stuck in the truck that night, but he denied their guilt.

The sheriff, in the course of a different investigation about three months later, obtained a search warrant to search the Heard Twins’ Club in Stuttgart for stolen half-pint bottles of whiskey and stolen bottles of gin. In the course of that search Officer Rosegrant picked up a cashbox under a counter and said, “This looks like the one that come out of the telephone company.” The officers took the cashbox, which was positively identified as the one stolen from the safe.

It is first argued that the State should not have been permitted to introduce the affidavit for the search warrant and the warrant itself, neither of which was shown to the jury, nor the cashbox, because the existence of those three items had not been disclosed by the State during pretrial discovery. This argument is without merit. The abstract does not show a request for discovery, a claim of surprise, or a motion for a continuance. Moreover, the sheriffs return shows that he left a copy of the. warrant with Hollis Heard and that the cashbox was listed as one of the items taken. In the circumstances the trial judge did not abuse the discretion conferred upon him by Criminal Procedure Rule 19.7 in refusing to prohibit the prosecution from using the items.

The second argument questions not only the sufficiency of the search warrant and its supporting affidavit but also the admissibility of the cashbox. Most of the specific objections to the warrant and affidavit now argued were not made below and were therefore waived. Woods v.Pearce, 230 Ark. 839, 327 S.W. 2d 377 (1959). It was objected below that the Heards’ street address was not specifically stated, but that point is without merit and not even argued on appeal. The other objection was that the year in the date of the warrant was shown as 1978 at the top but as 1976 above the issuing judge’s signature. All the evidence, however, shows that 1978 was the correct year; so the discrepancy, as the trial judge ruled, was obviously a clerical typographical error. Such documents are normally drafted by nonlawyers in the haste of a criminal investigation and are to be tested in a commonsense and realistic fashion, not with a grudging or negative attitude. Baxter v. State, 262 Ark. 303, 556 S.W. 2d 428 (1977).

The sufficiency of the supporting affidavit is not properly presented on appeal, because there was no such objection in the trial court. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980). Nevertheless, the dissenting opinion makes the flat statement: “There is no affidavit in this case.” We wholly disagree with that conclusion. The printed form for Affidavit for Search Warrant contained three blank lines for the insertion of the facts establishing the grounds for the issuance of the warrant. The facts stated by the sheriff were so detailed that they required 28 typewritten lines on a separate sheet of paper. That paper was signed by the sheriff, who also initialed the note inserted on the form, “See attached statement.” The statement was attached, the sheriff signed the form as affiant, and the jurat was completed by the municipal judge. Hence the statement was incorporated in a simple, practical, and commonsense manner. If there had been any doubt about the authenticity of the attachment signed by the sheriff, he was a witness in the case and could easily have been called to testify. When a matter can readily be clarified in the trial court if a timely objection is made, the failure to object prevents the party from raising the point on appeal. Smith v. Union Nat. Bank of Little Rock, 241 Ark. 821, 410 S.W. 2d 599 (1967).

As to the cashbox, the officers’ conduct met the threefold standard to be deduced from Coolidge v. New Hampshire, 403 U.S. 443 (1971): First, the plain view doctrine was satisfied, because the officers were acting under the authority of a valid search warrant and had a right to search the premises. Second, the discovery was inadvertent, there being no showing that the officers had hoped to find the cashbox and obtained the search warrant as a subterfuge for entering the premises. Third, Officer Rosegrant at once recognized the cashbox as having probably been stolen in the telephone company burglary. In fact, the informations had been filed only the day before, and Officer Rosegrant obviously knew that such an article had been stolen. In this respect the case differs from Gatlin v. State, 262 Ark. 485, 559 S.W. 2d 12 (1977), where the officers making a similar search had no knowledge of any particular items, so that the incriminating nature of the articles seized could not have been immediately apparent. Here the converse was true. Absolute certainty was not required, else the officers could not have seized heroin, for example, because it might prove to be a harmless powder. A reasonable degree of certainty, precluding fishing expeditions, is sufficient. The cashbox was admissible evidence.

Third, the State was properly allowed to impeach its own witness with regard to a comparatively minor matter. Such impeachment is specifically permitted by Uniform Evidence Rule 607, Ark. Stat. Ann. § 28-1001 (Repl. 1979), and the prosecution complied with Uniform Rule 613 in showing that the witness had made a prior statement inconsistent with his testimony. In fact, the principal objection below was that the State had waited too long before adducing the impeaching testimony on rebuttal, but that is a matter resting within the trial court’s sound discretion.

Fourth, at the beginning of the second stage of the trial, relating to punishment, the State announced that it had no previous convictions as to the defendant Ferguson. Counsel then sought to introduce, on Ferguson’s behalf, evidence relating only to punishment. Proffer was made of the sheriff’s testimony that Ferguson had made a confession about the telephone company burglary, corresponding to the State’s proof in the case, and that the prosecutor had agreed to try to obtain a suspended sentence for Ferguson. Later on, however, Ferguson recanted, saying his entire statement had been a lie; so the prosecution’s agreement was withdrawn. The court refused to allow the proffered testimony to be heard by the jury. (Even without that proof Ferguson received the minimum prison sentences.)

The ruling was correct. Our first habitual criminal statute is Act 228 of 1953. That act enhances the punishment for second, third, and fourth offenses, with a provision that an authenticated record of a conviction is prima facie evidence of the conviction. The act does not expressly allow the defendant to dispute the record of conviction, nor is there any provision for a two-phase trial. In 1965 we held that prior convictions should not be introduced before a verdict of guilty, and we specified how a two-stage trial should be conducted. Miller v. State, 239 Ark. 836, 394 S.W. 2d 601 (1965).

Two years later the legislature adopted Act 639 of 1967, substituting a somewhat different two-stage trial and also providing that the defendant “shall have the right to deny the existence of prior conviction(s) and to offer evidence in support thereof.” Ark. Stat. Ann. § 43-2330.1 (Repl. 1977). Substantially the same provisions were retained in the Criminal Code § 41-1005 (Repl. 1977).

We find no indication of a legislative intention to allow an habitual offender to introduce any evidence during the second stage of the trial except proof to rebut the evidence of previous convictions. The sole purpose of the second stage is to allow the jury to consider possible enhancement of the sentence, not its reduction. The habitual offender has the same opportunity as a first offender to introduce mitigating proof before the jury retires for the first time. Certainly the hardened criminal is not entitled to preferential treatment, which he would receive if, after the finding of guilt, he could for the first time admit his guilt, and make a plea for leniency. The first offender has no similar opportunity. We realize that here Ferguson has no previous convictions, but he must have known that fact, and certainly he could have offered mitigating circumstances during the first stage of the trial. Obviously, he did not then want the jury to know he had first confessed and then retracted his admission of guilt.

The situation is not similar to that presented in the trial of a person charged with capital murder. There the trial is bifurcated because, pursuant to decisions of the Supreme Court, the jury must find aggravating and mitigating circumstances to prevent the possibility of an arbitrary imposition of the death penalty. § 41-1301 and its Commentary. No similar necessity exists in the usual trial of an habitual offender, such trial being bifurcated only to protect the defendant by withholding proof of his earlier convictions until the jury has found him guilty.

Fifth, it is pointed out that the trial court was in error in imposing a separate sentence upon each defendant for theft of property when the jury had not made a finding of guilty upon that charge. Of course that was error, which we correct by modifying the judgment to eliminate the convictions and sentences for theft of property.

Sixth, the trial judge, in imposing sentences pursuant to the verdicts, failed to ask the defendants if they had any legal cause to show why judgment should not be pronounced. The Criminal Code requires that inquiry, which a trial judge should unquestionably make in every case. § 43-2303. Nevertheless, the defendants were represented by counsel, made no objection, did not file a motion for a new trial, and have not suggested in their appellate brief any possibility whatever of prejudice as a result of the omission. In Clark v. State, 264 Ark. 630, 573 S.W. 2d 622 (1978), there was a similar lack of any objection to the trial court’s merely asking the defendant if he had anything he wished to say. Although in the case at bar there was no inquiry at all, we adhere to our reasoning in Clark-. “We have held that in capital cases it is necessary to make an objection in the trial court in order to raise the issue on appeal. [Citation.] We further observe that here on appeal, although raised for the first time, there is no suggestion of any prejudice other than the court did not follow the exact wording of the statute. Upon a review of the entire sentencing procedure, we are of the view no prejudicial error as to allocution is demonstrated.” Nor can we discover any prejudice in the case at bar.

Seventh, the jury recommended that Ferguson be placed on probation, but the trial judge refused to follow that recommendation. During the jury’s deliberations the judge had told them, in response to an inquiry, that they could recommend probation, but the court did not have to follow their recommendation. After the verdicts were returned the judge explained to the jury his reasons for not following their recommendation. He mentioned Ferguson’s retraction of his original statement (certainly showing that one statement or the other was false), the fact that other charges had been filed against Ferguson, and the probability that he would be released on parole before serving the entire sentences. Counsel now criticize the reasons given, but the judge stated that he was explaining matters not known to the jury when they recommended probation. Ferguson himself had proffered the sheriffs testimony about the retraction of his confession and still insists that it should have been received in evidence. We find no abuse of the trial judge’s broad discretion in his refusal to follow the jury’s recommendation.

Affirmed as modified.

Purtle, J., dissents..

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion in this, case because I think the search warrant was defective and therefore the items obtained pursuant to it should have been suppressed.

The record contains a printed form entitled “Affidavit for Search Warrant” which has been partially filled in by the municipal judge. The affidavit states that there is reason to believe that there is located certain stolen goods upon the premises known as the Heard Twins Club run by Hollis and Ollis Heard located on Maple Street, Stuttgart, Arkansas, immediately north of Grapes’ Dairy Bar. No address is given for either establishment. The affidavit further states that there is now being concealed certain property, namely: two cases of 1/2 pint bottles of whiskey and two cases of 1/5 bottles of Seagram’s gin which is property stolen from the Stuttgart Liquor Store, Stuttgart, Arkansas, on or about March 18, 1978. The alleged grounds for search and seizure are as follows: stolen property as aforestated and held in violation of Arkansas law. The final paragraph relating to the facts tending to establish the grounds for the issuance of the search warrant were as follows: “See attached statement.” There was indeed attached to the affidavit for search warrant a statement but the statement was unsworn. The attached statement was signed by Sheriff Garrison but it was not dated nor was the place of its origination stated. In the body of the unsworn statement were words to the effect that a confidential informant, proven reliable in the past, told the sheriff that there was some whiskey in the Heard Twins Club on Maple Street and that it was under a tarpaulin in the bathroom. The informant stated there were several boxes of whiskey and gin in the bathtub. A statement from anyone could have been attached to the affidavit for a search warrant. Maybe this is the statement the municipal judge had in mind and maybe it is not. In addition to these deficiencies, there were seven changes, in type or ink pen. The search warrant was issued at 5:45 p.m. according to the judge’s jurat. However, in the body of the warrant it is stated that the affidavit was made at 6:00 p.m. One can conclude that there was an innocent mistake or that the judge issued a blank warrant which was filled in 15 minutes later by the sheriff. The search warrant itself is directed to the Heard Twins Club on Maple Street immediately north of Grapes’ Dairy Bar.

Arkansas Rules of Criminal Procedure, Rule 13, governs search and seizure pursuant to a warrant. The first requirement of Rule 13.1 is that the warrant may be issued only by a judicial officer. I think this is the only part of the rule which was complied with. The second requirement under the above rule is that application for a search warrant shall describe with particularity the place to be searched and the things to be seized and shall be supported by one or more affidavits or recorded testimony under oath before a judicial officer. There is no affidavit in this case, and there is no record of any testimony being given under oath before the municipal judge. Rule 13 2 requires the warrant to describe with particularity the date and place where the application for the warrant was made; the judicial finding of reasonable cause; location and designation of the place to be searched; the things constituting the object of the search; and the return date for the warrant. None of these were really strictly complied with.

In the case of Gatlin v. State, 262 Ark. 485, 559 S.W. 2d 12 (1977), the warrant authorized a search for illegal drugs. The officers seized illegal drugs but they also seized a 19-inch color television, a plastic bag containing $807, silver tableware in a red velvet lined walnut case, triple beam balance scales, and several firearms. The officers seized the items other than illegal drugs on the claim of the “plain view” doctrine. In deciding that the other items seized were not legal, we cited from Coolidge v. New Hampshire, 403 U.S. 443 (1971). The citation was as follows:

... The plain view rule applies if (1) the initial intrusion resulting in the “plain view” was lawful, (2) discovery of the object was inadvertent, and (3) the incriminating nature of the object was “immediately apparent.” ...

Therefore, even if the warrant were valid in the present case, it is obvious that the plain view doctrine is inapplicable because the box was under a counter and obviously not in plain view. Neither was the box immediately apparently incriminating in nature. One of the officers stated it looked like a box that could have come from another robbery. That is not close to being “immediately incriminating.” The place to be searched was located in the city of Stuttgart. No street address was given and no description of the building was included in any of the information. Unless the officers knew of their own knowledge that the Heard twins operated at this place, they would have been unable to locate it from the information on the search warrant. Another reason the search warrant was invalid, in my opinion, was that the warrant was improperly executed. The Heard twins were in jail at the time of the search and seizure. The return on the warrant simply states: “Served in Stuttgart, Arkansas, April 4, 1978, to Hollis Heard, time 6:55 p.m.” There was no copy of the warrant attached to the premises searched. Therefore, this is but one of many reasons why the search warrant was invalid.

Since I find the search warrant to be invalid, I would suppress the evidence obtained through it. Even if it were valid, the evidence was not in plain view; and, if it were in plain view, it was not evidence of an immediately incriminating nature. Such evidence simply should not have been admitted.


author: Frank Holt, Justice. John I. Purtle, Justice,

text:
    Robert Dale GARNER v. Harold FINCH et al
    80-252
    612 S.W. 2d 304
    Supreme Court of Arkansas
    Opinion delivered March 9, 1981

      W. B. Howard and Frierson, Walker, Snellgrove & Laser, by: Mark Ledbetter, for appellant.

      Tom B. Smith and Penix, Penix & Mixon, for appellees.
   Frank Holt, Justice.

This appeal results from the trial court’s granting appellees’ motion for a new trial following a jury verdict for appellant in the amount of $55,263.00 based upon his claim for personal injuries. Appellant challenges the correctness of that ruling. We affirm.

The trial court is vested with a wide latitude of discretion in acting on a motion for a mistrial or a new trial and will not be reversed on appeal absent a manifest abuse of discretion. General Motors Corp. et al v. Tate, 257 Ark. 347, 516 S.W. 2d 602 (1974); and Dickerson Construction Co. v. Dozier, 266 Ark. 345, 584 S.W. 2d 36 (1979). The showing that a trial judge has abused his discretion must be stronger when a new trial has been granted than when it has been denied, as the beneficiary of the verdict set aside has less basis for a claim of prejudice than does the unsuccessful movant for a new trial. Security Insurance v. Owen, 255 Ark. 526, 501 S.W. 2d 229 (1973).

Appellant was employed by appellee Finch as a farm employee when he accidentally suffered an amputation of the lower portion of his left leg by a rotating auger in a grain cart, which was manufactured by appellees Shaw and House. After a three day trial, the jury retired to deliberate and answer seven interrogatories. The trial judge instructed the jury that only the foreman should sign an interrogatory if it was unanimous; if not, nine or more jurors must agree on the answer to any of the interrogatories and those agreeing must sign. The instructions were then furnished to the jury for its use. The first time the jury returned the foreman advised the court that the jury had reached a verdict; the answers to the first six interrogatories were unanimous; and the seventh interrogatory was signed by nine jurors. However, upon questioning the jury, the court determined that the answers to some were not unanimous. Consequently, the court sent the jury back to further deliberate with instructions again as to how each interrogatory should be signed. The jury returned a few minutes later to ask a question. The foreman stated the jury was “really confused” as to interrogatory *5 involving assumption of risk and “[w]e think he [appellant] is partially to blame for this but we took that into consideration when we awarded the amount of money that was to be paid to him. Now, we didn’t know whether we answered that question yes or answered it no.” The trial court attempted to explain to the jury that its function was to answer that interrogatory yes or no, apportion the percentage of fault among the parties (interrogatory #6) and find the total amount of damages the appellant had sustained (interrogatory *7). The foreman expressed “confusion” with the court’s attempted clarification. The court observed that the foreman’s understanding would be appropriate under a general verdict form, however, not appropriate to an interrogatory form of verdict. The court continued: “You must enter the amount which you feel he is entitled to recover. Correctly, it should be the total amount that you feel he has sustained. The total amount of his damages that you find that he has sustained as a result of any injury which you find was proximately caused by the liability or negligence of the parties to whom you find at fault and apportion their degree.” A juror then remarked: “[T]he point we are trying to get to is the percentage of fault ...” The court responded it was the jury’s function to apportion the fault of liability of each party and the jury was not to diminish or deduct anything from the total damages. The jury again retired. Thereupon, appellees complained to the court that the proper method of answering the jurors’ questions would be to tell the jury that all the interrogatories must be answered and if they desired any clarification on the assumption of risk they could simply reread the instructions (which had been furnished them). Further, the court’s remarks went beyond answering questions and indicated to the jury that it could find more damages than the actual amount the appellant was entitled to. The court overruled appellees’ motion for a mistrial. The jury returned shortly and reported that they had reached a verdict. The court, after examining the interrogatories, again sent the jury back, stating that, in view of interrogatories 4 (as to appellant’s negligence) and 5 (appellant’s assumption of risk), he must return interrogatory 6 (percentage of responsibility among the parties) to the jury for further deliberation. (At the hearing on the motions for a new trial, the judge noted the jury had answered that appellant was negligent and had assumed the risk, but it had apportioned “0% ” negligence to him.) Defense counsel again moved for a mistrial because of the jury’s confusion about their function and “at this stage it is anybody’s guess as to what they will do and just be conjecture and be forcing a result on their part.” Again, appellees’ motion was denied. A short time later the jury returned with their final answers to the interrogatories, none of which were unanimous. All appellees were found negligent, in varying degrees, and appellant 5% negligent. Appellant was awarded damages of $55,263.00 (an increase of approximately 5% over their first figure).

Subsequently, the appellees filed their motions for a new trial, reasserting, inter alia, their motions for mistrial during the trial proceedings. The trial judge, after hearing arguments, granted a new trial, stating that he should have granted the defendants’ motions for a mistrial during the proceedings. In doing so, the court noted that he was not considering, nor had he read, an affidavit of six of the jurors concerning matters which occurred during their deliberations. The court was correct inasmuch as such an affidavit is improper under Arkansas law. See Uniform Rules of Evidence, Rule 606 (b). The court also properly excluded from consideration statements made by a local attorney about reports made to him by some of the jurors. The court then stated:

[I]n the interest of justice and a fair and impartial trial the Court is granting the motion and ordering a new trial in the case so that all parties will have an adequate opportunity to correct any — so it will be beyond the question of suspect as I fear and find this verdict is open to.

The court made a specific finding “that it should have granted certain defense motions for a mistrial during the jury’s deliberations in this matter.”

In the granting or denying of a motion for mistrial, we give due consideration to the fact the trial judge, having personally observed the entire proceedings, is in a better position than we to evaluate the merits of the motion. When we consider all the circumstances during the trial proceedings, we cannot say that appellant has sufficiently met his burden of demonstrating the trial judge manifestly abused the wide latitude of discretion allowed him by setting aside the jury’s verdict.

Affirmed.

Adkisson, CJ., and Purtle, J., dissent.

John I. Purtle, Justice,

dissenting. I respectfully dissent from the majority opinion in this case primarily upon the reasoning we used in the recent case of Scheptmann et al v. Thorn, 272 Ark. 70, 612 S.W. 2d 291 (1981). Both cases are strikingly similar, the chief difference being that in the present case the trial court granted a new trial and in the Scheptmann case a new trial was denied.

In both cases the matter was submitted upon interrogatories and in both cases the central question revolved around the percentage of negligence or total injuries suffered by the plaintiff. In both cases the trial judges answered the inquiry of the jury in a manner which could not possibly be misleading, in my opinion. In Scheptmann et al v. Thorn, supra, we stated:

... But the court spoke only in generalities, so much so that we are wholly unable to see how the jurors could have derived any usable information from the remarks in question.

The cases are strikingly similar in a number of respects not previously mentioned. After the jury had returned and announced their confusion in the present case, the court explained the interrogatories and sent them back to deliberate. While they were out, the opposing party moved for a mistrial. The mistrial was denied. In Scheptmann, supra, after the trial court explained the interrogatories the jury went back to consider them further. During the time they were out the opposing attorney moved for a mistrial. In one case the judge refused to set it aside, and we upheld him. In the other case the judge at first refused to set it aside but later did set the verdict aside and we have now upheld him. It may be said that this is the result of allowing trial courts a great amount of discretion in handling the trial. I agree that trial courts should be given wide latitude in conducting trial procedures. However, it appears to me that we have in one case placed our stamp of approval on a judge explaining the interrogatories to the jurors and in the other case we have stated that the judge should not explain the interrogatories to the jurors.

In my opinion, the trial judge was closer to the factual situation and the parties at the time he refused to grant the mistrial before the jury had returned with their verdict than he was several weeks later when he set it aside. It is only logical that the matters would have been more prominent in his mind during the trial than they were after outside attorneys had meddled in the matter and jurors had submitted statements. Although the court did not consider these matters, it seems to me it would be nearly impossible not to be aware of the outside activities of another attorney and the improper conduct of obtaining statements from jurors. To affirm this decision will likely encourage others to bring to bear all sorts of pressure on trial judges when the results of a trial are unfavorable to them.

I would reinstate the jury verdict in this case.


author: Steele Hays, Justice.

text:
    Lloyd W. BLACKMON v. STATE of Arkansas
    CR 80-228
    612 S.W. 2d 319
    Supreme Court of Arkansas
    Opinion delivered March 9, 1981

      E. Alvin Schay, State Appellate Defender, by: Linda Faulkner Boone, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

On March 14, 1977, the appellant entered guilty pleas to four separate charges of burglary arising out of four separate incidents in Mississippi County, Arkansas. All of the pleas were entered at one hearing; appellant received identical concurrent sentences on each of the four charges.

On April 24, 1980, appellant was convicted of robbery and sentenced as a habitual offender under Ark. Stat. Ann. § 41-1001 (2) (Repl. 1977). Appellant brings this appeal urging that the court below erred in applying the habitual offender statute. He contends that the four guilty pleas entered in 1977 should be treated as one conviction for purposes of § 41-1001 (2). We disagree. Appellant’s arguments were previously considered under the prior habitual offender statute, Ark. Stat. Ann. § 43-2328 (Supp. 1973) in Cox v. State, 255 Ark. 204, 499 S.W. 2d 630 (1973). We held there that the trial court properly applied the habitual offender statute where the defendant, at one hearing, pled guilty to three separate counts of burglary and was sentenced to concurrent terms for each of the three offenses:

Certainly the burglaries ... are all different offenses, and the plea of guilty to each one constituted conviction for a different offense.
Cox at 209

See also,Thom v.State, 248 Ark. 180, 450 S.W. 2d 550 (1970).

Our decision in Cox under the prior statute is squarely on point with the issue in the present case.

The appellant contends that the changes made in the habitual offender statute since the Cox decision warrant a different result. He argues that the purpose of the present statute, § 41-1001 (2), is to impose a more severe punishment only after the defendant has had an opportunity to reform himself — that his four prior convictions should be treated as only one conviction, since the concurrent sentences imposed offered only one opportunity to reform. Again, we disagree. Although it is true that a new habitual offender statute has been enacted since the Cox decision, the basic purpose of the statute, to subject repeat offenders to a more severe punishment, is unchanged. As the commentary to § 41-1001(2) makes clear, that section was intended to create a simpler method for determining the sentence to be imposed:

While adhering to the principle that the habitual offender should be subject to more severe penalties, § 41-1001 sets out a new method of determining the authorized sentencing range in such cases.

Nothing in the commentary indicates that the purpose of the previous habitual offender statute has been altered by the adoption of § 41-1001 (2).

We believe Cox v. State correctly states the law. Each plea of guilty to separate offenses, though the pleas may be entered simultaneously and though concurrent sentences are imposed, constitutes a separate prior conviction for purposes of the habitual offender statute, Ark. Stat. Ann. § 41-1001 (2).

Finding no error in the procedure below, we affirm.


text:
    Monroe BETHEA v. CITY OF LITTLE ROCK
    CR 80-245
    612 S.W. 2d 320
    Supreme Court of Arkansas
    Opinion delivered March 9, 1981
    Appellant, pro se.

      R. Jack Magruder, III, City Atty., for appellee.
   Per Curiam.

Appellant has sought to appeal from a judgment of conviction in the amount of $129.00 and costs. The arguments contained in the briefs seem to indicate that appellant was convicted under a Little Rock city ordinance which prohibits the occupancy of premises upon which are stored abandoned vehicles.

Appellant has failed to abstract such material parts of the record as are necessary to an understanding of all questions presented to this court for decision as required by Rule 9(d), Rules of the Supreme Court, Ark. Stat. Ann., Vol. 3A, p. 485 (Repl. 1979); therefore, we must affirm the trial court under Rule 9 (e) (2). Bank of Ozark v. Isaacs, 263 Ark. 113, 563 S.W. 2d 707 (1978).

Appellant has failed to abstract the following parts of the record necessary for a decision in this case:

1. The ordinance sought to be declared unconstitutional;
2. The citation setting forth the violation of the ordinance;
3. The ruling of the trial judge specifying the portion of the ordinance violated;
4. Any motions or objections raised as to the constitutionality of the ordinance;
5. The ruling of the trial judge regarding the ordinance’s constitutionality.

In numerous cases this court has found it necessary to affirm for noncompliance with Rule 9. Dyke Industries, Inc. v. Johnson Construction Co., 261 Ark. 790, 551 S.W. 2d 217 (1977); Smith v. Smith, 263 Ark. 578, 567 S.W. 2d 88 (1978); Wade v. Franklin-Stricklin Land Surveyors, Inc., 264 Ark. 841, 575 S.W. 2d 672 (1979);Perry v. Cox, 266 Ark. 402, 585 S.W. 2d 33 (1979); Smith v. Bullard, 271 Ark. 794 (1981).

Affirmed.


text:
    Albert BROWNING v. STATE of Arkansas
    CR 80-263
    614 S.W. 2d 937
    Supreme Court of Arkansas
    March 9, 1981

      Stevan B. Dalrymple, for appellant.

      Steve Clark, Atty. Gen., for appellee.
   Per Curiam.

Appellant Albert Browning, by his attorney, has again filed for a rule on the clerk. In a Per Curiam opinion issued January 19, 1981, we denied a similar motion.

His attorney, Stevan B. Dalrymple, has attached an affidavit admitting that the record was tendered late due to a mistake on his part.

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

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


text:
    James T. COLLIER v. HOT SPRINGS SAVINGS & LOAN ASSOCIATION
    80-202
    612 S.W. 2d 730
    Supreme Court of Arkansas
    Opinion delivered March 16, 1981

      Q. Byrum Hurst, Jr. and Stephany Rush, for appellant.

      Eichenbaum, Scott, Miller, Crockett, Darr & Hawk and Wright, Lindsey & Jennings, for appellee.
   Richard B. Adkisson, Chief Justice.

Appellee, Hot Springs Savings & Loan Association, filed suit alleging appellant, James T. Collier, while employed as its vice president, fraudulently converted over $900,000 of appellee’s funds. Based on the pleadings, admissions, and affidavits on file, the circuit court found there remained no genuine issue as to any fact and granted summary judgment from which appellant appeals.

Appellee served appellant with a request for admissions pursuant to Ark. Stat. Ann. § 28-358 (Supp. 1977). Appellant filed a timely motion for an extension of time in which to answer and, then, belatedly filed a response to the request for admissions. Since the circuit court found that appellant’s response was untimely and insufficient, the matters set forth in the request for admissions were deemed admitted.

Appellant argues that his timely motion for extension was granted under Rule 78, Ark. Rules of Civ. Proc., since appellee failed to either object or respond to it; he concludes that the trial court, therefore, erred in deeming appellee’s requests for admissions admitted. We find no merit in this contention. The burden of obtaining a ruling falls upon the movant; and, the failure to secure one constitutes a waiver of said motion precluding its consideration on appeal. Rea v. Ruff, 265 Ark. 678, 580 S.W. 2d 471 (1979).

As his next point for reversal appellant asserts that the trial court erred in granting a summary judgment by finding no genuine issues of material fact remaining for trial. We do not reach the merits of this issue since appellant has failed to abstract the request for admissions which is a material part of the record necessary to decide this issue. Rule 9 (d), Rules of the Supreme Court (Ark. Stat. Ann., Vol. 3A, p. 486 [Repl. 1979]). Since we, therefore, cannot determine what fact issues remained for trial, we must affirm under Rule 9 (e) (2). Bank of Ozark v. Isaacs, 263 Ark. 113, 563 S.W. 2d 707 (1978). Smith v. Bullard, 271 Ark. 794 (1981).

Appellant has invoked the jurisdiction of this court under Rule 29, Rules of the Supreme Court and Court of Appeals, alleging deprivation of his rights under the Arkansas Constitution. More specifically, he contends that he “did not enjoy the equality before the law that any citizen of the State of Arkansas should expect” and cites the “Constitution of Arkansas, Article II, Section 1, 2, 3, and 7.” However, generalized contentions that one’s constitutional rights have been violated are insufficient to invoke the jurisdiction of the Arkansas Supreme Court under Rule 29 (1) (a); in the future we will not maintain jurisdiction in such cases.

Affirmed.


text:
    Robert L. MILLER v. Floyd J. LOFTON, Judge
    CR 79-232
    612 S.W. 2d 732
    Supreme Court of Arkansas
    Opinion delivered March 16, 1981

      William R. Simpson, Jr., Public Defender, 6th Judicial District, by: Howard W. Koopman, Chief Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This petition for prohibition asserts that Miller has been denied a speedy trial upon a charge of burglary pending in the Pulaski Circuit Court. Such petitions are within our jurisdiction under Rule 29(1) (f). We find no denial of Miller’s right to a speedy trial.

Miller was arrested on July 3, 1978. He was first charged with the present offense of burglary and later separately charged with other unreleated offenses. The latter charges were tried on February 1, 1979, with a finding of guilty and sentences totaling seven years and 30 days.

On October 11, 1979, the charge of burglary was set for trial on November 15, 1979, which would have been within the third term of court after the arrest. Miller moved for a dismissal, on the ground that he had not been tried within nine months after the first trial. After the denial of that motion Miller filed his petition for prohibition in this court. We issued a temporary writ on February 11, 1980, but owing to a misunderstanding about the briefing schedule under Rule 16 the petitioner’s brief was not filed until last December.

There is no merit in petitioner’s argument that the State’s failure to try him within nine months entitled him to an absolute discharge. In a case decided after this petition for prohibition was filed we held that under Criminal Procedure Rule 30.1 (b) the accused is entitled not to a discharge but only to a release from custody after nine months, but even such a release is not possible when the accused is confined in the Department of Correction under an earlier conviction. Matthews v. State, 268 Ark. 484, 598 S.W. 2d 58 (1980).

Alternatively, petitioner argues that the State knew of his earlier conviction and confinement and failed to “promptly” seek his presence for trial, as required by A. R. Crim. P., Rule 291 (a). “Promptly,” however, is not an exact term. As used in the Rule it necessarily means without undue or unreasonable delay. Here Miller failed to offer any testimony in support of his motion to dismiss; so the question is presented as an issue of law with no showing of actual prejudice from the delay. The case was set for trial within the three terms of court allowed by Rules 28.1 (b) and 28.2. Thus there was a prima facie compliance with the speedy trial requirements, and in the absence of proof of prejudice we cannot say as a matter of law that the State did not act promptly.

Writ denied.


author: Darrell Hickman, Justice.

text:
    Ed WARMACK v. THE MERCHANTS NATIONAL BANK OF FORT SMITH
    80-314
    612 S.W. 2d 733
    Supreme Court of Arkansas
    Opinion delivered March 16, 1981

      Bethell, Callaway & Robertson, by: Edgar E. Bethell, for appellant.

      Daily, West, Core, Coffman & Canfield, by: Thomas A. Daily, for appellee.
   Darrell Hickman, Justice.

The questions raised in this appeal concern a lease provision which provides that the tenant cannot sublet the premises without the landlord’s permission. The chancellor held that Arkansas law implies that consent to sublet cannot be unreasonably withheld and that the landlord so acted in this case. We disagree and reverse the decree.

The parties are the landlord-owner of the Central Mall, a large shopping complex in Fort Smith, and the tenant-Merchants National Bank of Fort Smith. A detailed and lengthy lease agreement was signed by the parties in 1969. Under this lease the bank would build a drive-in facility on the parking lot of the complex. The complex consisted of a mall with a series of shops interconnected under one roof, and other stores and shops in conventional shopping center configuration. This was the largest such complex in Arkansas at the time it was built.

The lease was for a term of twenty-five years and the terms of the lease were mutually beneficial. The tenant would build the building in a prime location and get a long term lease with the cost being totally tax deductible. The landlord would get a valuable tenant who would contribute to the success of his complex and after twenty-five years the landlord would own the building.

The lease was negotiated but to what extent we cannot say. The tenant bank apparently made numerous deletions in the printed lease and the landlord agreed to all of these. The provision in question was not changed and was not, to our understanding, the subject of negotiations. The questionable provision reads:

Tenant shall not sublet the premises in whole or in part and shall not sell, assign, mortgage, pledge or in any manner transfer this lease, or any interest herein, without in each case having obtained Landlord’s written consent; ...

In 1979 the bank merged with the Continental Bank and Trust Company, a local bank with a facility across the highway. It was decided in May or June of 1979 that the bank would move from its facility on the mall to the newly acquired facility across the highway. At the same time, negotiations began with First Federal Savings and Loan Association to sublet the drive-in facility. The landlord was not informed of these proposals until November 16, 1979. At that time he was asked to approve the sublease. (The landlord had some intimation a few days before that the bank would close or abandon the drive-in facility, but he had no official notice before November 16th.)

The landlord said that he would consider the matter and get back to the bank. He subsequently decided to cancel the lease and wrote a letter on December 19th, electing to terminate the lease immediately because the premises had been vacant more than ten days. Two days later the bank filed this suit for declaratory judgment. The landlord counterclaimed to cancel the lease and sought damages under Ark. Stat. Ann. § 34-1516. Monthly payments have been tendered by the bank pending this litigation.

The tenant insisted that despite the language of the lease the landlord could not unreasonably withhold his consent to a sublease and he was doing so. Testimony was given that the new tenant, a savings and loan association, was an identical tenant, the bank would still be liable for the rent and no harm could come to the landlord from the sublease. Indeed, it was argued that the landlord would, if the lease were literally enforced and cancelled, own the building, a substantial gain.

The landlord argued that the lease meant what it said and that consent for any reason could be withheld. Even so, the landlord put on testimony as to why the new tenant was not acceptable. His evidence was that such a shopping complex, to be successful, must contain a good “mix” of tenants; it must have a proper balance. Too many of any kind, such as shoe stores or clothing stores, would be harmful; a complex needs a variety of shops to attract and keep customers. An expert in retail marketing concluded that losing the bank and gaining the savings and loan company would be detrimental. He based his conclusion on two facts: First Federal Savings and Loan already had a facility in the mall and if it operated the drive-in, there would actually be less customers that would come into the mall because some would use only the drive-in facility; a savings and loan company does not draw the same nor as many customers as a bank does.

The tenant countered this testimony by saying that there was essentially no difference between such institutions; that the bank was only moving some five hundred feet across the street; customers would still come to the area; and that the landlord was being unreasonable.

The chancellor held that Arkansas law does not permit a landlord to unreasonably withhold consent and in this case he was unreasonable. He approved the sublease. We agree with the chancellor that such a provision in a lease should not permit a landlord to unreasonably withhold consent. That is the trend of the law and our decision in Tucker v. Pulaski Federal Savings & Loan, 252 Ark. 849, 481 S.W. 2d 725 (1972) is an indication of that trend. Other states have adopted that principle of law. Homa-Goff Interiors, Inc. v. Cowden, 350 So. 2d 1035 (Ala. 1977); Arrington v. Walter E. Heller International Corporations, 30 Ill. App. 3d 631, 333 N.E. 2d 50 (1975); Granite Trust Bldg. Corp. v. Great Atlantic and Pacific Tea Co., 36 F. Supp. 77 (D. Mass. 1940).

In our judgment the best rule concerning such leases is contained in the Restatement of Property, § 15.2 (1976) which we adopt as controlling in such cases. The Restatement says:

A restraint on alienation with the consent of the landlord of the tenant’s interest in the leased property is valid, but the landlord’s consent to an alienation by the tenant cannot be withheld unreasonably, unless a freely negotiated provision in the lease gives the landlord an absolute right to withhold consent.

In adopting this rule we abandon the principle that a landlord may freely withhold his permission as expressed in Fort Smith Warehouse Company v. Friedman-Howell & Co., 111 Ark. 15, 163 S.W. 175 (1914). Even so, we disagree that in this case the decision of the chancellor was supported by a preponderance of the evidence.

The Restatement of Property, supra, notes that: “A general statement of what constitutes unreasonableness in this area [i.e., a landlord’s refusal of consent to a transfer] was given in Mitchell’s v. Nelms, 454 S.W. 2d 809 (Tex. Civ. App. 1970), that being: ‘without fair, solid and substantial cause or reason.’ ” With that understanding of the term, we cannot say the landlord was unreasonable in this case. The chancellor should have ordered the lease cancelled.

The mall complex was no ordinary landlord-tenant arrangement. Each tenant was considered for the contribution made to the whole complex. The evidence indicates that the tenant mix was critical to the mail’s success. The landlord leased these premises specifically to be used for a drive-in bank. The substitution offered was a savings and loan association which already had a facility in the mall — a critical fact. The evidence indicated that it would be decidedly to the landlord’s disadvantage to accept this tenant. Essentially nothing would be gained and the success of the complex, to some degree, would suffer. Also, we are convinced that while a savings and loan association is similar in many respects to a bank, and becoming more so, it is not the same institution and will not attract the same customers. We are not impressed with the fact that the bank guaranteed the rent; this is not just a case of security for the rent, as might ordinarily be the case, but it concerns the protection of a major investment by a landlord and the welfare of his other tenants.

We cannot say that the matter of damages claimed by the landlord can be resolved on this record. It seems the landlord was wrong in attempting to treat the building vacant. The chancellor so found. Also, we are not convinced that the landlord is entitled to triple damages under Ark. Stat. Ann. § 34-1516 (Repl. 1962). There must be a finding of willful, wrongful detainer to trigger Johnson v. Taylor, 220 Ark. 46, 246 S.W. 2d 121 (1952). Strict construction of such a penal statute may preclude such relief. The case is remanded in regard to rent and damages for the chancellor to determine the equities of the parties and enter a decree accordingly.

The decree is reversed and the cause remanded for entry of a decree consistent with this opinion.

Reversed and remanded.