text:
    L. C. HENSLEE and Willa Dean HENSLEE v. E. S. KENNEDY and Jewell KENNEDY
    76-383
    555 S.W. 2d 937
    Opinion delivered September 19, 1977
    (In Banc)
    [Rehearing denied October 24, 1977.]

      Eugene Hunt, of Hunt & Jamison, for appellants.

      Charles F. Gibson, for appellees.
   John A. Fogleman, Justice.

This action involves the interests of the parties in certain lots in Arkansas City on which there is a grocery and liquor store. Appellees filed a complaint in chancery, praying for an accounting, asserting that they owned the property in partnership with appellants. Appellants counterclaimed asserting that appellees had only a security interest. The complaint was dismissed on motion for summary judgment on the ground that it was barred by the statute of limitations. There is no appeal from that action. The counterclaim was dismissed after a trial on the merits. The trial court found that appellants had not proved by clear, cogent and convincing evidence that there was an oral contract to convey the property to them.

Appellants alleged in their counterclaim that appellee E. S. Kennedy secured the sum of $8,500 at appellants’ request for the purchase of the property in question and requested that his (appellee’s) name appear on the deed for securing the loan made to appellants; that appellee promised to execute a quitclaim deed with release of dower to appellant upon repayment of the $8,500, all of which has been paid; that appellants have paid all the sums owed to appellee regarding the purchase of the property and have made demand of appellees to execute the deed, but they refused; and that appellee, E.S. Kennedy, was trusted. They prayed that the court rule that appellee holds title to the property as trustee and order a conveyance by him to them. Appellees answered by a general denial.

These allegations stated a cause of action for the declaration of an implied trust, and, more specifically, a resulting trust. This is a trust that arises by operation of law, rather than by. express agreement and it may arise despite the fact that there is no manifestation of intention to create an express trust. Harbour v. Harbour, 207 Ark. 551, 181 S.W. 2d 805. A resulting trust arises, not out of an agreement, but out of the circumstances surrounding the transaction, indicating that the beneficial interest is not to go with the legal title. Darsow v. Landreth, 236 Ark. 189, 365 S.W. 2d 136. It is presumed to arise in favor of one who pays or secures the purchase price for land at the time of the transaction when the deed is taken in the name of another. Hunt v. Hunt, 202 Ark. 130, 149 S.W. 2d 930; Jones v. Jones, 118 Ark. 146, 175 S.W. 520. We have long recognized the applicability of the general rule prevailing in other jurisdictions that a resulting trust arises when the person who takes the title holds it as security for his advance of the purchase money as a loan to the person claiming the benefit of a resulting trust. Byers v. Danley, 27 Ark. 77; Restatement of the Law, Trusts 2d, § 448 p. 410. This rule has been applied by us in Crain v. Keenan, 218 Ark. 375, 236 S.W. 2d 731; Payne v. Box, 231 Ark. 301, 329 S.W. 2d 181 and Gorenflo v. Brown, 233 Ark. 221, 343 S.W. 2d 564. In Crain, we said that the result is the same as though the transferee first lent the amount of the purchase money to the borrower and the borrower then paid the amount borrowed to the vendor and the conveyance was then made by the vendor to the lender.

There are certain preliminary points we must address before reaching the merits of appellants’ counterclaim. Appellants contend that the chancellor erred in denying their motion for summary judgment on the counterclaim. The denial of a motion for summary judgment is not subject to review even after final judgment in a suit. Widmer v. Ft. Smith Vehicle & Machinery Corp., 244 Ark. 971, 429 S.W. 2d 63; Deposit Guaranty Nat. Bank v. River Valley Co., Inc., 247 Ark. 226, 444 S.W. 2d 880; Williams v. Varner, 253 Ark. 412, 486 S.W. 2d 79. However, the alleged error on which appellants base their argument is subject to review: that is, that the trial court erred in finding that appellees ’ answers to requests for admission were sufficiently verified; therefore, the matters requested were admitted.

The requested admissions were denied by appellees but there was no statement or verification in the body of the document that appellees swore to the truth of their answers. The document was signed by appellee E. S. Kennedy and a notary public’s jurat followed his signature. Appellants complain that the notary’s jurat is not sufficient verification. Ark. Stat. Ann. § 28-358 (Repl. 1962) requires that a party, who wishes to deny specifically the matters of which an admission is requested, serve upon the party requesting admission “a sworn statement” so denying the matters. All of the cases cited by appellants and others which we have examined either found error or affirmed on the ground that the denials were not “verified.” None of these cases has answered the question whether a notary’s jurat constitutes a sufficient verification; and none of them has stated what would otherwise be a sufficient verification.

“Verification” is sometimes taken to mean simply confirmation of correctness, truth, or substantiation by affidavit, oath, or deposition; swearing to an affidavit. McNamara v. Powell, 52 N.Y.S. 2d 515 (1944); Marshall v. State, 116 Neb. 45, 215 N.W. 564 (1927); Herbert v. Roxana Petroleum Corp., 12 F. 2d 81 (D.C., Ill.). “Sworn to” is frequently used interchangeably with “verified” and implies that the subscriber shall have declared upon oath the truth of the statement to which his name is subscribed. Ashley v. Wright, 19 Ohio St. 291 (Critchfield) (1869); Indiana Quarries Co. v. Sims, 158 Ky. 415, 165 S.W. 422 (1914); 83 C.J.S. p. 929. The requirement of verification has been held to require the swearing to the truth of his statements by the subscriber and certification thereto by an officer authorized to administer oaths. Gossard v. Vawter, 215 Ind. 581, 21 N.E. 2d 416 (1939); In re James Passero & Sons, Inc., 261 N.Y.S. 661, 237 App. Div. 638 (1933).

The notary’s statement appended to the response to the request for admissions is called a “jurat,” which is a certificate evidencing the fact that the instrument was properly made before a duly authorized officer. See Black’s Law Dictionary (4th Ed.). In distinguishing between a jurat and an acknowledgment, this court said “... a jurat is a simple statement that an instrument is subscribed and sworn to or affirmed before a proper officer without the further statement that it is the act or deed of the person making it.” Pardo v. Creamer, 228 Ark. 746, 310 S.W. 2d 218. A jurat has been held to be prima facie evidence that an affidavit was properly made. Stern v. Board of Elections of Cuyahoga County, 14 Ohio St. 2d 175, 43 Ohio Ap. 2d 286, 237 N.E. 2d 313 (1968).

It has also been held that proof of service was sufficient even though the body of the affidavit failed to declare that the statement was made under oath (it used the word “certify”). In Mitchell v. National Surety Co., 206 F. 807 (D.C. N.Mex. 1913) the court explained:

. . . [E]vidence by the jurat of the administering of the oath is sufficient to maké it a written statement under oath and thus an affidavit, notwithstanding the affiant fails to state over his signature that he is declaring under oath . . . [I]ts very function ... is to show that the statement has been made under oath before a competent officer. Using it for that purpose, it is efficient to show that the statement was made under oath even if the affiant fails to so recite.

See also, White v. Heber City, 82 Utah 547, 26 P. 2d 333 (1933); Tucker v. State, 244 Md. 488, 224 A. 2d 111 (1966), cert. den. 386 U.S. 1024, 87 S. Ct. 1381, 18 L. Ed. 2d 463; Greene v. Lombard, 33 Ga. App. 518, 126 S.E. 890 (1925).

We have held that it was not necessary for an affiant to sign an affidavit (required by statute) that an appeal was not taken for the purpose of delay. Gill v. Ward, 23 Ark. 16. The requirements were stated: “ ... he must swear to the facts stated, and they must be in writing .,. [A]nd as evidence that it was sworn to by the party, whose oath it purports to be, it must be certified by the officer before whom it was taken; which certificate is commonly called a jurat, and must be signed by such officer.” Accord, Huff v. Commonwealth, 213 Va. 710, 194 S.W. 2d 690 (1973). See also, Mahan v. Owen, 23 Ark. 347. We have held that the statutory form and requisites of verification of pleadings [Ark. Stat. Ann. §§ 27-1105 et seq (Repl. 1962)] do not apply to discovery. Young v. Dodson, 239 Ark. 143, 388 S.W. 2d 94.

Because there is no statute or judicial precedent requiring that the party denying admissions state in the denial that he does so on oath, the notary’s statement that he was sworn was sufficient evidence that the denial was under oath.

Appellants also asserted that the trial court erred in failing to declare a mistrial when the chancellor inadvertently saw an offer of settlement by appellant which was shown to Kennedy to refresh his memory on another matter. We will not pass on the admissibility of the letter because it was not argued that the court erred in excluding it from evidence.

The drastic remedy of mistrial should be a rarity in a chancery court. It should not be resorted to unless justice cannot be served by continuing the trial or unless prejudice cannot be avoided or removed by any other means. Rickett v. Hayes, 256 Ark. 893, 511 S.W. 2d 187. In this instance the chancellor promptly called the attorneys for the parties into his chambers, advised them what had happened, and stated that he would totally and utterly disregard what he saw as having no bearing on the issues. The matter of granting or denying a mistrial lies within the sound judicial discretion of the trial judge. Shroeder v. Johnson, 234 Ark. 443, 352 S.W. 2d 570. We accord much latitude to the trial court and reverse the judgment only if there is an abuse of discretion involving manifest prejudice to the complaining party, i.e., in effect we sustain the trial court unless prejudice affirmatively appears. Back v. Duncan, 246 Ark. 494, 438 S.W. 2d 690. We cannot say that there was an abuse of the trial court’s discretion in this case.

Many of the facts are undisputed. The property was purchased in June, 1967, from H. A. Taylor and his wife Marie Taylor for a consideration of $10,500, of which $2,000 was paid by E. S. Kennedy. The remainder of $8,500 paid to the Taylors came from the proceeds of a loan made by the McGehee Bank, evidenced by a note for that amount signed by E. S. Kennedy and his brother C. D. Kennedy, dated June 19, 1967, and due in one year with interest at eight per cent per annum. The deed from the Taylors conveyed the property to L. C. Henslee and E. S. Kennedy, as tenants in common. Appellants and appellees joined in the execution of a mortgage on the property dated July 11, 1976, in favor of E. S. Kennedy and G. D. Kennedy to secure the loan. When the note was finally paid on November 24, 1970, the bank delivered it to Mrs. Henslee, who requested that this be done when someone at the bank called her and asked her what they should do with it. The note was in her possession at the time of the trial. Appellants made the payments necessary to retire this debt, or substantially all of it, by monthly checks or by deposits to the account of E. S. and C. D. Kennedy. They had not repaid all of the $2,000 paid by E. S. Kennedy on the date of the purchase.

These and other facts are gleaned, as far as possible, from the abstract of the record (in which exhibits are identified but not abstracted or reproduced).

The mechanics of the payment of the loan to the bank are not entirely clear. E. S. Kennedy testified that he wrote a check to the bank every month and that Mrs. Henslee would then write a check payable to his order and deposit it in the bank. Appellees introduced 27 checks for $200 each for payments made by the Henslees to the Kennedys. They also introduced seven check stubs showing payments, one check for $211 for interest and nine deposit slips for deposits made to the account of E. S. and C. D. Kennedy. These indicated payments totaling $8,700. Appellants testified that they had paid the $8,500 in full. E. S. Kennedy admitted that they had paid all of this except $100, which he testified they still owe.

L. C. Henslee testified that, when he approached E. S. Kennedy for assistance in financing the purchase of the property, Kennedy was dubious about the property’s “paying for itself” and he assured Kennedy that he would pay $200 per month on the loan beginning July 1, 1968, until the loan was paid, and if Henslee could not pay for it, the property would be his (Kennedy’s). He said that the bank would not make the loan without E. S. Kennedy’s signing the note and E. S. Kennedy told Henslee that C. D. Kennedy would have to sign it, because it was being secured by funds of the Kennedy brothers. The Henslees had no collateral.

L. C. Henslee also testified that he insisted that E. S. Kennedy have “his name put on the deed for security” as had been done on a previous occasion in a similar transaction and that he (Henslee) had instructed the scrivener accordingly. Henslee testified that he said to E. S. Kennedy at that time, “I trust you,” and told Kennedy that, when he paid the money back, Kennedy was to make a quitclaim deed to Henslee. According to Henslee, he still owed E. S. Kennedy $1,038.11 on the $2,000 advanced by Kennedy. Henslee testified that when E. S. Kennedy deeded the property to him he would pay “all that he could rake Up that he owed” Kennedy. He said that when E. S. Kennedy came to him in 1974 and said that they should settle the matter, he had, by letter, requested a deed.

Mrs. Henslee testified: that they still owed E. S. Kennedy $2,000; that she had asked him to prepare the papers and that she would pay him; that he had said that he would call her in “a couple of days” but had not done so; and that when the papers were prepared to deed the property to appellants, she would pay him.

E. S. Kennedy testified that the purpose of having his name on the deed was to vest a one-half interest in the property and that he owned one-half of the store. He also testified that he made the $2,000 down payment and that C. D. Kennedy and E. S. Kennedy loaned L. C. Henslee and E. S. Kennedy and their wives $8,500 to pay Taylor. He said that the “note on the store” (apparently the note to the McGehee Bank) was drawn to provide for payments of $200 per month, with interest payable annually. According to him, when the store was purchased, he and Henslee were to be partners and he had intended that his son help operate the store, but the son declined. He said that L. C. Henslee was supposed to get everything the store made until Henslee had paid the $8,500 plus interest and that he (Kennedy) was also to get his $2,000 back plus whatever else he “put in it” ($200 for a walk-in cooler). He said that after these amounts were paid and he had his money back “it was to be fifty-fifty,” but that he had not gotten anything out of the store. He said there was no agreement for him to give a deed because he and L. C. Henslee were partners. E. S. Kennedy explained that his name was not on the liquor license because he belonged to the Masonic Lodge and was told that he could not have the license in his name.

In spite of the fact that E. S. Kennedy had not received any of the profits of the store, he loaned L. C. Henslee $500 to make the down payment on a house well after the debt at the bank had been retired. He said the Henslees also owed him $500 Henslee had borrowed to buy hogs. He testified that the Henslees still owed $100 on the $8,500 note, that they had paid only $600 on the $2,000 he paid Taylor and that L. C. Henslee had only paid $800 on loans of $1,000. He had not demanded payment of these sums by Henslee because he said Henslee was trying to pay him. He admitted that a deed had been demanded by Henslee by a letter dated November 5, 1974.

The Henslees operated the store, which was known as Henslee’s Grocery & Liquor Store, without aid or advice from Kennedy, and paid all of the taxes on the property. There was no evidence relating to the source of the money the Henslees paid to Kennedy and there is no doubt about E.S. Kennedy’s having considered that L. C. Henslee was personally obligated to repay the entire $10,500 purchase price.

Mrs. Henslee testified that $2,000 of the purchase money was obtained by a loan of $2,000 by H. A. Taylor. It is not clear how this relates to the transaction. Although she testified that she had paid all the interest she was supposed to pay Kennedy, the abstract of the record does not disclose any testimony about the amount of interest paid.

The decree of the chancery court stated that appellants sought to prove an oral contract for the conveyance of lands, but dismissed the counterclaim upon the ground that they had failed to prove the contract by clear, cogent and convincing evidence. Both appellants and the trial court seem to have approached this case on the basis that it was an action for specific performance of an oral contract to convey land, and, apparently, that the statute of frauds did not apply because appellants were claiming that their possession of the property and their payments were part performance in which case an oral contract must be proved by clear and convincing evidence. Pfeifer v. Raper, 253 Ark. 438, 486 S.W. 2d 524; Reynolds v. Havens, 252 Ark. 408, 479 S.W. 2d 528. But this was erroneous. Appellants have never asserted or relied upon an oral contract to convey, nor have they ever urged that theory upon the trial court. They have consistently relied upon the theory of an implied trust, and, as pointed out earlier, alleged a resulting trust. In equity, the cause of action and the relief granted are determined by the allegations of fact in the pleading, if there is a prayer for general relief, in the absence of surprise. Jackson v. Jackson, 253 Ark. 1033, 490 S.W. 2d 809; Kelly’s Heirs v. McGuire, 15 Ark. 555; Sannoner v. Jacobson & Co., 47 Ark. 31, 14 S.W. 458. Here there could have been no surprise for the specific prayer for relief was upon the trust theory. Appellants produced evidence in support of that theory, consisting of their own testimony and strongly corroborative circumstances. The chancellor’s findings against them were not based upon credibility of witnesses. To the contrary he found the evidence to be in complete equipoise. There can be no doubt that appellants have paid nearly all the purchase price for the property. A resulting trust does not depend upon a contract or agreement, but may arise in the absence of any agreement at all. It appears that the chancellor considered this case either on the basis that appellants’ pleadings asserted a constructive trust as defined in Kingrey v. Wilson, 227 Ark. 690, 301 S.W. 2d 23, or that he considered it from the view of appellees that appellants sought specific performance of an oral contract. As pointed out, the allegations and evidence were directed toward the theory of a resulting trust.

Ordinarily, we decide an equity case on de novo review, but there are exceptional cases in which we exercise our discretion, in the furtherance of justice, to remand to the chancery court for further proceedings when the trial court has tried the case on the wrong legal theory and where we cannot plainly see what the rights and equities of the parties are. See Wilson v. Rodgers, 250 Ark. 335, 468 S.W. 2d 739, (opinion on rehearing) 468 S.W. 2d 750; Wilborn v. Elston, 209 Ark. 670, 191 S.W. 2d 961; Carmack v. Lovett, 44 Ark. 180; Long v. Charles T. Abeles & Co., 77 Ark. 156, 93 S.W. 67. This is such a case, because so much turns on weighing the evidence.

Accordingly, the decree is reversed and the cause remanded for a determination of the issues as to a resulting trust.

       We are not unaware of the statement in Harrison v. Cruse, 233 Ark. 237, 343 S.W. 2d 789, that the person there seeking to impress a resulting trust on property, claiming that he had paid a portion of the price, had the burden of proving by clear, cogent and convincing evidence that he paid a portion of the purchase price under an agreement then made with the grantee in the deed that he would have an interest in the property. This statement was properly applicable in that case because of the relationship of the parties and the course of dealings between them. As a general rule, it is out of harmony with other cases, because the trust arises frcitn a presumed intention of the parties and is ndt dependent upon, any kind of agreement.

       In this transaction the profits realized from the sale of the property were divided. We cannot tell from the record whether the parties contributed equally to the purchase price or the loan constituted the entire consideration.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Charles Edward HORTON v. STATE of Arkansas
    CR 77-75
    555 S.W. 2d 226
    Opinion delivered September 19, 1977
    (Division II)

      McArthur & Johnson, P.A., for appellant.

      Bill Clinton, Atty. Gen., by: Terry R. Kirkpatrick, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Horton contends that his conviction of possession of heroin should be reversed because the material identified as heroin in the evidence was unlawfully seized and because of insufficiency of the evidence to show his possession. We find no reversible error and affirm.

Appellant contends that the seizure of the heroin was unlawful and that it should have been excluded from evidence because it was discovered by the officers through a warrantless search made prior to appellant’s arrest. The testimony discloses, however, that the participating officers had probable cause, both for the arrest of Horton and for the search of the automobile on the day of Horton’s arrest. Detective Johnny Mack had information from a confidential informant whose information had led to approximately eight arrests and six convictions. The informant, in a telephone conversation that took place on Friday, September 26, 1975, at 6:55 p.m., told Mack that Horton had a matchbox containing 20 papers of heroin and that he was sitting in an automobile (which the informant described as a 1973 Buick Riviera with a black top over a tangerine body) at the Charles Mini-Mart at Wright Avenue and Wolfe Street. The informant said that Horton would not be at the described location for more than a few minutes. Mack testified that, because of the mobility of the automobile and Horton’s ability to leave within two or three minutes, he felt that the officers should go to Wright Avenue and Wolfe Street with “expedience” and that there was not time to obtain a search warrant. Three of four minutes after the telephone call the officers arrived at the location given them, where they sighted a parked 1973 Buick Riviera that was tangerine (or orange) in color with a dark vinyl top. It was occupied by Horton and Gussie Dean, a female who was a known drug addict with a record of drug charges. Horton was sitting under the steering wheel. The officers identified themselves and asked Horton to step out of the car. When Horton did so, Mack observed that Horton had been sitting on a matchbox. The box was retrieved by Detective Isom, who opened it and found 19 tinfoil packets of a brown powdery substance, which later chemical tests showed to be heroin. Although Horton related a different sequence of events after the officers arrived, we must view the evidence in the light most favorable to the state. Williams v. State, 258 Ark. 207, 523 S.W. 2d 377.

Since the reliability of the informer was established, the officers had probable cause, both for Horton’s arrest and for the search. Warrantless searches of an automobile by officers who have reason to believe they contain contraband have long been upheld. See Perez v. State, 260 Ark. 438, 541 S.W. 2d 915. Warrantless automobile searches are justified in circumstances in which a warrantless search in other contexts would be unreasonable sometimes because the inherent mobility of an automobile often makes obtaining a judicial warrant impracticable and sometimes because of the diminished expectation of privacy which surrounds the automobile. See United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977); Perez v. State, supra.

Although the officers testified that Horton was not under arrest when he stepped out of the car, the arrest and search were substantially contemporaneous, since there was probable cause for the arrest independent of the search. Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458. See also, Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963); Knight v. State, 171 Ark. 882, 286 S.W. 1013; McDonald v. State, 501 F. 2d 385, cert. den. 419 U.S. 1004, 95 S. Ct. 325, 42 L. Ed. 2d 280 (1974).

Since there was probable cause for the arrest and the search at the time the officers arrived on the scene where they found Horton, the exigent circumstances justified the warrantless search, either under the “automobile exception” or as incidental to a lawful arrest. Furthermore, the matchbox came into plain view of the officers when Horton got out of the automobile. See Kelley v. State, 261 Ark. 31, 545 S.W. 2d 919; U.S. v. Riggs, 474 F. 2d 699 (2 Cir., 1973), cert. den. 414 U.S. 820, 94 S. Ct. 115, 38 L. Ed. 2d 53.

Appellant also contends that the evidence was insufficient to show that he, not the known addict who was in the automobile, was the possessor of the heroin. The evidence discloses that the matchbox containing the substance was found in Horton’s automobile. Detective Mack said that Horton had been sitting on the matchbox. Thus, the judge had a basis for finding against appellant on the evidence. In his testimony, Horton denied possession and implied that Gussie Dean must have been the possessor. The question was one of credibility and weight to be given to the testimony which is for the trier of fact. Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225. It was resolved against appellant by the circuit judge, who sat without a jury.

The judgment is affirmed.

We agree. Harris, G.J., and Byrd and Holt, JJ.


author: Conley Byrd, Justice.

text:
    Jimmy O. WALKER v. STATE of Arkansas
    CR 77-67
    555 S.W. 2d 228
    Opinion delivered September 19, 1977
    (In Banc)

      Frank C. Eicon II, for appellant.

      Bill Clinton, Atty. Gen., by: B. J. McCoy, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant, who had received a suspended sentence upon some forgery and uttering charges in 1974, was arrested on July 29, 1976 on a theft of property charge. Pursuant to a petition for revocation filed on November 23, 1976, the trial court on December 1, 1976, revoked a portion of appellant’s suspended sentence. For reversal appellant contends that he was entitled to have the petition for revocation dismissed because of the 60 day limitation set out in Ark. Stat. Ann. § 41-1209(2) (1976 Crim. Code). That statute in so far as applicable provides:

“A suspension or probation shall not be revoked except after a revocation hearing. Such hearing shall be conducted by the court that suspended imposition of sentence on defendant or placed him on probation within a reasonable period of time, not to exceed 60 days, after the defendant’s arrest. ...” [Emphasis ours]

The State to support the action of the trial court points out that the July 29th arrest was upon a theft of property charge and was not an arrest for a revocation or suspension of the suspended sentence pursuant to Ark. Stat. Ann. § 41-1208 (1976 Ark. Crim. Code). The State also contends that the 60 day time limit in Ark. Stat. Ann. § 41-1209(2), supra, runs from the date of the arrest provided for in Ark. Stat. Ann. § 41-1208 (1976 Ark. Crim. Code).

When we give a rational interpretation to the 60 day limitation, in accordance with the intent and purposes of the statute, we must agree with the State’s interpretation of the statute. It follows that the trial court did not err in revoking the suspended sentence.

Affirmed.


author: Elsijane T. Roy, Justice.

text:
    Leon STEVENS v. STATE of Arkansas
    CR 77-91
    555 S.W. 2d 229
    Opinion delivered September 19, 1977
    (Division I)

      Robert C. Marquette, for appellant.

      Bill Clinton, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

Appellant Leon Stevens pled guilty to burglary and grand larceny, whereupon the trial court sentenced him to eleven years on each charge with the sentences to run concurrently.

Subsequently appellant filed a motion for post-conviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. The trial judge, after reviewing the record, denied the motion without a hearing. From the denial of the motion without a hearing appellant brings this appeal.

Rules of Crim. Proc., Rule 37.3 (a) (1976) provides:

If the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files or records that are relied upon to sustain the court’s findings.

The court found no merit in the petition and made written findings as required by Rule 37.3 (a).

The post-conviction petition essentially alleges that appellant’s plea of guilty was not voluntarily or knowingly made, that he was deceived by a plea bargain arrangement and that he was denied effective assistance of counsel.

Appellant claims the two concurrent eleven-year sentences affected the sentence from which he was on parole. The record does not disclose how the old sentence was allegedly affected. However, prior to accepting the pleas of guilty the trial judge, with appellant’s appointed attorney present, made the following statement:

But this will be an eleven year sentence. And I do not know what effect that this parole thing might or might not have upon your sentence. I don’t want it to be longer than that, but I don’t really know what effect it will have on you. I want you to understand that. Do you understand what effect the sentence of this nature will have?

Appellant replied, “Well, yes, sir, from previous experience of being down there.”

The record further reflects that the commitment to the Arkansas Department of Correction issued by the trial court provides “that this eleven (11) year sentence be concurrent with and not in addition to the revoked parole time the defendant has to serve on the revocation of the defendant’s parole on a sentence from the Sebastian Circuit Court.”

There is no showing of deception here since the trial judge imposed the concurrent eleven-year sentences as expected and frankly advised appellant he did not know how appellant’s parole would be affected by these sentences. The exclusive jurisdiction of custody, control, supervision, etc. of all persons in the penitentiary is vested with the Arkansas Department of Correction. Ark. Stat. Ann. § 46-103 (Supp. 1975) and Charles v. State, 256 Ark. 690, 510 S.W. 2d 68 (1974). The trial court could not intervene in the administration of prison affairs.

Prior to accepting appellant’s pleas of guilty, the trial judge informed him of the charges, the specific acts involved, the range of possible sentences, the right to jury trial and the right to counsel without charge if he could not afford one, if he desired a trial. He also was informed of the specific sentences the court would impose.

The trial court asked appellant if anyone was forcing him to plead guilty, and appellant answered “no.” We find that the record here establishes the trial court properly accepted appellant’s guilty pleas. Consequently no error is found in denial of an evidentiary hearing under these circumstances.

Affirmed.

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


author: Darrell Hickman, Justice.

text:
    Henry Lee WILLIAMS v. STATE of Arkansas
    CR 77-100
    555 S.W. 2d 231
    Opinion delivered September 19, 1977
    (Division I)

      Bill E. Ross, Mississippi County Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Henry Lee Williams was convicted of rape and sentenced to fifty years in the Arkansas penitentiary.

On appeal he alleges three errors which relate to the same subject: the state was permitted to reopen its case and recall Williams and the chief of police for additional questions.

First, Williams alleges that it was error to permit the state to reopen its case; second, that recall of the defendant was unconstitutional per se; and, finally the state’s evidence went to a collateral matter and, therefore, was not proper.

We find no merit in these arguments.

The evidence against Williams was mainly testimonial. The victim, a clerk in a plant and gift shop, testified that she opened the store at about ten o’clock in the morning on the 19th of April, 1976. About fifteen minutes later Williams came in and, after looking around, asked for a cup of coffee. It was customary to serve coffee to customers. She stated that at the same time Williams was in the store a salesman came in and, during his short stay had a conversation with Williams. The salesman left after a few minutes. Williams remained and when the victim served him coffee he asked for more sugar. She went to a backroom to get the sugar and Williams came back, accosted her, forced her into the restroom and raped her. She also claimed Williams took about $40.00 from the cash register and then left. She immediately called her husband and was shortly thereafter examined by a doctor.

The salesman testified and identified Williams as being in the store on the 19th of April. He remembered that Williams had approached him and talked about motorcycles. The salesman was riding a motorcycle on that day.

The owner of the shop, who was not there at the time of the offense, identified Williams as a person who had been in her shop on at least two occasions a week or so before. On one occasion, to her observation, Williams was “just hanging around.” She stated he never bought anything.

A doctor testified that he examined the victim on the day in question and found evidence of sexual intercourse.

Both the salesman and the victim identified clothing, which was entered into evidence, as being clothing similar to that which Williams wore when they saw him. The chief of police got the clothes from the residence where Williams was staying. There was no objection to the seizure of the clothing.

Williams testified in his defense that he had never been in this shop, did not know any of the people who testified and, was, in fact, fishing on the day in question. His testimony was supported by two other witnesses.

After all this evidence was presented to the jury, the state asked for permission to reopen its case and recall Williams and the chief of police for further examination. The trial qourt permitted this over Williams’ objections.

Williams was asked, on recall, if the clothes admitted into evidence were in fact his, and he stated that they were. He was also asked if he could remember telling the chief of police that on the day in question he was at his brother-in-law’s house all day. He stated that he could not remember making that statement. The police chief was recalled and asked if, in fact, Williams made a statement that he had been at his brother-in-law’s house all day on the day in question. The chief stated that Williams had made such a statement. Also, the chief stated that Williams explained that the money he had on that day was from his brother in California. Williams’ testimony was slightly different on the matter of money.

Williams first argues that it was an abuse of the trial court’s discretion to permit the prosecutor to reopen his case. Usually when a party presents its case and rests, that is the end of the matter. However, our procedures permit a trial court, within its sound discretion, to permit a party to reopen a case. We can find nothing in the record to show that the court abused this discretion.

Williams next argues that it was unconstitutional per se to permit the state to recall him for further cross-examination. Able counsel for Williams asks us to overrule a case which approved such a procedure. Shinn v. State, 150 Ark. 215, 234 S.W. 236 (1921).

A defendant cannot be called as a witness by the state in a criminal trial. However, once he takes the witness stand, he is subject to recall the same as any other witness. We find nothing unconstitutional about this procedure. Therefore, we find no reason to overrule Shi.m, supra.

Williams also argues that even though the trial court may not have abused its discretion, the evidence that was presented was collateral and not rebuttal evidence and, therefore, was improperly admitted. This argument goes to questions that were asked of the police chief regarding previous statements of Williams. Although the statements may have been inconsistent with Williams ’ testimony during the trial, these statements could also have been admitted during the state’s case in chief and, therefore, they were not collateral to the guilt or innocence of Williams. Evidence is not collateral if it is admissible as part of a case in chief. Randall v. State, 239 Ark. 312, 389 S.W. 2d 229 (1965). These statements by Williams were admissible during the state’s case in chief.

The prosecutor should have presented his evidence and asked his questions during his case in chief. That would have been the better practice. However, we can find no error in the action of the trial court in permitting the state to reopen its case and ask these limited questions.

Affirmed.

We agree. Harris, C.J., and George Rose Smith and


author: Frank Holt, Justice. Byrd, J.,

text:
    Jimmy MILLER, Agent for MIDLAND INS. CO. v. STATE of Arkansas
    77-62
    555 S.W. 2d 563
    Opinion delivered September 26, 1977
    (In Banc)

      McArthur & Johnson, P.A., for appellant.

      Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant entered into an appearance bond agreement for Willie Earl Knighten’s appearance in municipal court where he was a defendant on a felony charge. He appeared there and after a hearing was certified to the circuit court where an information was filed on the charge. A new bond was not made. There the defendant failed to appear on plea and arraignment date, although notified and ordered to do so. The circuit court then ordered appellant, as surety, to show cause why the bond should not be forfeited. Subsequently, appellant was ordered to pay the bond based upon the court’s interpretation of Rules of Crim. Proc., Rule 9.2 (e) (1976), which requires that an appearance bond “shall serve to guarantee ail subsequent appearances of a defendant on the same charge .... before any court, including appearances relating to appeals and upon remand.” From that order appellant brings this appeal.

Ark. Stat. Ann. § 22-242 (Supp. 1975) (Act 470 of 1971) provides that the Supreme Court “shall have the power to prescribe .... rules of... . procedure with respect to any or all proceedings in criminal cases .... in all the inferior courts of law in this state. ” Rule 9.2 (e) was adopted pursuant to this statute. Appellant asserts that § 22-242 is an unconstitutional delegation of legislative rule making power in violation of the doctrine of separation of powers as enumerated in Art. 4, §§ 1 and 2, Ark. Const. (1874) and, further, was enacted outside the authority of the enabling act. Historically, appellant says, bail bond procedures have been a legislative function. In Sibbach v. Wilson, 312 U.S. 1 (1924), the court held that the legislature’s power to regulate practice and procedure may be exercised by granting courts the authority to establish rules not inconsistent with other statutes or the United States Constitution. Therefore, here the legislature’s delegation of power, if necessary, to prescribe rules of criminal procedure was not unconstitutional nor outside the enabling act, provided the rule in question is truly procedural which appellant claims it is not. Appellant insists the rule relates to substantive law. In Roberts v. Love, 231 Ark. 886, 333 S.W. 2d 897 (1960), we said:

. . . [A]s relating to criminal law, substantive law is defined as ‘that which declares what acts are crimes and prescribes punishment therefor. ’ Procedural law is ‘that which provides or regulates the steps by which one who violates a criminal statute is punished.’ Substantive law . . . ‘creates, defines, and regulates rights, as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtaining redress for their invasion.’

As was stated in Sibbach, supra, “ [t] he test must be whether a rule really regulates procedure, — the judicial process for enforcing rights and duties recognized by substantive law and' for justly administering remedy and redress for disregard or infraction of them.” The bail provisions of Rule 9.2 (e) merely provide the process or procedure by which a defendant, as here, may obtain pre-trial release on a charge arising out of his alleged violation of substantive law.

Further, In re Ark. Criminal Code Revision Com’n, ex parte, 259 Ark. 863, 530 S.W. 2d 672 (1975), in approving the Rules of Grim. Proc., including 9.2 (e), we said that the rules were adopted “[pjursuant to Act 470 of 1971 and in harmony with the Court’s constitutional superintending control over all trial courts. ...” Consequently, we implicitly rejected the argument advanced here that we had no inherent rule making authority absent an enabling statute. The enabling act here merely recognizes and is harmonious with this court’s inherent powers rather than conferring an express power. See also State v. Gibson Circuit Court, 157 N.E. 2d 475 (Ind. 1959); State v. Roy, 60 P. 2d 646 (N.M. 1936); In re Constitutionality of Section 251.18, Wis. Statutes, 236 N.W. 717 (Wis. 1931); State v. Superior Court for King County et al, 267 P. 770 (Wash. 1928).

Appellant next argues that the appearance bond only assured the defendant’s presence in the municipal court and that, absent a clear extension of the contract liability to the circuit court in the agreement, his surety obligation cannot be extended past the terms of the contract. Appellant asserts that Rule 9.2 (e), which provides that an appearance bond shall guarantee all subsequent appearances of a defendant in any court, should not be read into the bond to extend liability beyond the plain import of the contractual agreement which, here, was limited to assuring the defendant’s presence in the municipal court.

In support of his contention, appellant cites Trimount Dredging Co. v. U.S. Fidelity & Guaranty Co., 166 Md. 556, 171 A. 700 (1934); and Commonwealth v. Stryker, Inc., 109 Pa. Sup. 137, 167 A. 459 (1933), wherein it was held that the bond obligation could not be extended past the plain import of the contractual agreement and state statutes pertaining to contractor’s bonds could not be read into the bond. However, as the court in Commonwealth recognized, other jurisdictions hold different views.

Here we are dealing with a bond which was required by law as a condition for the pre-trial release of a criminal defendant. In Arkansas “[i]t is familiar law that when a bond is required by statute and issued pursuant thereto, the bond will be construed as if the terms of the statute had been written into the contract.” Empire Life v. Armorel Planting Co., 247 Ark. 994, 449 S.W. 2d 200 (1970). See also Fort Smith Structural Steel Co. v. Western Surety Co., 247 F. Supp. 674 (1965); and Crawford v. Ozark Ins. Co., 97 Ark. 549, 134 S.W. 951 (1911). It is well settled law that in determining the extent of liability on a statutory bond, if there is any conflict between the statute and the bond, the language of the statute is controlling. Carter v. St. Paul Fire & Marine Ins. Co., 283 F. Supp. 384 (1968); and Detroit Fed. & Surety Co. v. Yafee Iron & Metal Co., Inc., 184 Ark. 1095, 44 S.W. 2d 1085 (1932). In Rodriquez v. People, 554 P. 2d 291 (Colo. 1976), the court stated: “[Statutes relating to bail .... implicitly constitute a part of the surety contract.” 8 Am. Jur. 2d, Bail and Recognizance § 96 reads: “ [T]he sureties on a bail bond cannot change or lessen a liability fixed by statute.”

Here the appearance bond was issued pursuant to § 22-242 and Rule 9.2 (e). The latter states that the appearance bond “shall serve to guarantee all subsequent appearances of a defendant on the same charge. . . . before any court. ...” Reading the applicable rule into the bail bond agreement here, the bond would apply to appellant’s appearance before the circuit court as well as his appearance before the municipal court.

Affirmed.

Byrd, J.,

dissents for the reasons set forth In re Ark. Criminal Code Revision Com’n, ex parte, 259 Ark. 863, 530 S.W. 2d 672 (1975) at p. 871, et seq.


text:
    Robert E. ACKERMAN v. CITIZENS BANK OF JONESBORO, Trustee, and Ida POLLEY, Gary POLLEY and Ronald POLLEY
    77-82
    555 S.W. 2d 565
    Opinion delivered September 26, 1977
    (Division I)

      Bill W. Bristow, for appellant.

      Frierson, Walker, Snellgrove & Laser, by: Mark Ledbetter, for appellees.
   Elsijane T. Roy, Justice.

On February 9, 1974, Katherine F. Ackerman died, leaving a will and trust agreement as dispositive of her estate. Under the terms of her will, her estate, with the exception of certain personal effects, was devised to the Citizens Bank of Jonesboro as trustee. Under the terms of the trust agreement, two separate trusts were to be created and were referred to in the instrument as “the marital trust” and “the residuary trust.” The decedent’s husband, Robert E. Ackerman, appellant in this proceeding, was to receive the income of the residuary trust for life with the corpus to vest upon his death in appellees, Ida, Gary and Ronald Polley. The marital trust was to be the sole property of appellant, and at his death the principal would vest in such persons as he might by will appoint. Any part not so devised was to pour over into the residuary trust and become the property of appellees Polley.

The particular issue sought to be resolved here is whether certain property which had passed to appellant outside the will should be included in the allocation of trust assets. This property consisted of an inter vivos gift of $66,000 made by the decedent to appellant in February, 1973; 100 acres of real property valued at $85,000 and held jointly; and certain miscellaneous personal property worth $1400. The transfer of this property was held by the Internal Revenue Service to have been made in contemplation of death. All of the items mentioned above were included in the gross estate of Katherine F. Ackerman for federal estate tax purposes and all qualified for the marital deduction.

Article III (B), Sections 1 and 2, the pertinent provisions of the trust agreement, read as follows:

(1) There shall be allocated to one trust, hereinafter referred to as the Marital Trust, only that amount of the trust property necessary to permit Grantor’s estate to obtain for federal estate tax purposes the maximum marital deduction, taking into consideration any other amount so qualifying. The term “marital deduction” shall have the same meaning as under the Internal Revenue Code [italics supplied].
(2) All the rest, residue and remainder of the Trust Estate shall be allocated into another trust, hereinafter referred to as “Residuary Trust.”

Appellant contended the trust assets should be divided into two equal shares with half going into the marital trust and the other half into the residuary trust. Appellees Polley contended that the marital trust should contain only that portion of the trust assets which together with the property passing to appellant outside the will would total one-half the gross estate.

The chancery court determined the property appellant received dehors the will should be considered allocated to the marital trust as adjusted by the Internal Revenue Service on the estate tax return of Mrs. Ackerman. The total value of these assets was $144,204.38, and this sum was allocated to the marital trust, consequently reducing the amount appellant would otherwise have received from the trust corpus.

On appeal the first contention is that the court erred in ruling that the trust instrument manifested an intent to give the surviving spouse less than fifty percent of the proceeds of the trust corpus. Both appellant and appellees agree that the issue is a matter of first impression béfore this Court.

Simply stated, the allowance of the marital deduction permits the deduction from the decedent’s taxable estate of any interest passing to a surviving spouse in an amount not exceeding fifty percent of the value of the adjusted gross estate. I.R.C. of 1954, c. 736, 68A. Stat. 392; October 4, 1966, Pub. L. 89-621, § 1 (a), 80 Stat. 872 (current version at 26 U.S.C.A. § 2056 [1977 Supp.]), and 1 Harris, Handling Federal Estate and Gift Taxes, § 226 (Rasch Rev. 1972).

Appellant has cited several cases from other jurisdictions contending they support his view that the marital estate should not be charged with property passing outside the will. We find none controlling here because of factual distinctions. None contain the restrictive language used in the trust established by Mrs. Ackerman.

We find of particular significance in the trust instrument the use of the words “only that amount of the Trust property necessary to permit Grantor’s estate to attain for Federal Estate Tax purposes the maximum marital deduction, taking into consideration any other amount so qualifying. ” (Italics supplied.)

It is undisputed that the monetary gift, the miscellaneous personal property and the jointly held real estate all qualified for the marital deduction as determined by the Internal Revenue Service. The words used in the trust provision clearly express the settlor’s directive that the property at issue here be included in the allocation to the marital trust. To hold otherwise would be to completely ignore the use of the word “only.”

Appellant next alleges the court erred in ruling that because of the restrictive language used in the trust instrument, parol evidence would not be admitted to clarify the meaning of the instrument.

In Murphy v. Morris, Executor, 200 Ark. 932, 141 S.W. 2d 518 (1940), this Court stated:

In the construction of an instrument creating a trust, the same rules prevail whether such instrument be a deed or a will. The true rule is that the construction never begitis until uncertainty of sense is pretty clearly apparent. (Citing 26 R.C.L. 1552.) (Italics supplied.)

Since the trust instrument contained the restrictive provisions heretofore discussed we find the trial court was correct in holding that there was no “uncertainty of sense” requiring extrinsic evidence on this issue.

Appellant’s last contention concerns the jointly held real estate. At the time of their marriage Mrs. Ackerman had a life estate in this real property. On April 29, 1972, appellant and his wife purchased the remainder interest for a consideration of $14,000 which was paid by a check drawn on their joint bank account.

The value placed on the real property at the date of the trustor’s death was $85,000. Appellant contends since the property was jointly owned there should have been excluded from the trustor’s estate for tax purposes such part of the entire value of such real property as was attributable to the amount of the consideration furnished by the other joint owner. The chancellor found appellant’s contribution was fifty percent of the purchase price of the remainder interest. The real property initially had not been listed in the estate tax return, but the Internal Revenue Service adjustment audit reflected addition to the gross estate in the amount of $71,000 because of the jointly held real estate, which sum represented the “fair market value of [the property] $85,000 less surviving spouse’s contribution of $14,000.”

The chancellor adopted the cash paid theory used by the Internal Revenue Service in determining the adjusted value of $71,000 as reflected in Mrs. Ackerman’s estate tax return.

We find merit in appellant’s contention that under § 2040 of the Internal Revenue,Code appellant’s contribution toward the purchase of the remainder interest should be computed by using a proportionate figure instead of cash paid. I.R.C. of 1954, c. 736, 68A. Stat. 385; Oct. 16, 1962, Pub. L. 87-834, § 18(a)(2)(G), 76 Stat. 1052 (Current version at 26 U.S.C.A. § 2040 [1977 Supp.]), reads as follows:

The value of the gross estate shall include the value of all property to the extent of the interest therein held as joint tenants by the decedent and any other person, or as tenants by the entirety by the decedent and spouse, or deposited, with any person carrying on the banking business, in their joint names and payable to either or the survivor, except such part thereof as may be shown to have originally belonged to such other person and never to have been received or acquired by the latter from the decedent for less than an adequate and full consideration in money or money’s worth:
* * *

The Treasury regulation promulgated in connection with 26 U.S.C.A. § 2040, supra, is 26 C.F.R. § 20.2040-1 and reads in pertinent part:

(a) In general. A decedent’s gross estate includes under § 2040 the value of property held jointly at the time of the decedent’s death by the decedent and another person or persons with right of survivorship, as follows:
* * *
(2) . . . [T]he entire value of the property is included except such part of the entire value as is attributable to the amount of the consideration in money or money’s worth furnished by the other joint owner or owners. * * * Such part of the entire value is that portion of the entire value of the property at the decedent’s death . . . which the consideration in money or money’s worth furnished by the other joint owner or owner bears to the total cost of acquisition and capital additions ....
# * #

Notes thereunder state:

(c) Examples. The application of this section may be explained in the following examples in each of which it is assumed that the other joint owner or owners survived the decedent:
(1) If the decedent furnished the entire purchase price of the jointly held property, the value of the entire property is included in his gross estate;
(2) If the decedent furnished a part only of the purchase price, only a corresponding portion of the value of the property is so included;
* * *

Since the decedent and appellant each furnished one-half of the purchase price, the amount charged to the marital trust should have been $42,500 (50% of $85,000) instead of $71,000.

Accordingly the cause is remanded with directions to the chancellor to enter a decree consistent with this opinion.

Affirmed as modified.

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

       The trustee is an appellee in this action.

       The parties had been married only about three years at the time of Mrs. Ackerman’s death, and both were of an advanced age when they married.

       The trust instrument specifically provided the term “marital deduction” shall have the same meaning as under the Internal Revenue Code.

       The court did permit a proffer of testimony, which we have reviewed but have found inadmissible because the standards established by Martin v. Simmons First National Bank, 250 Ark. 774, 467 S.W. 2d 165 (1971), were not present in the proffer. The Martin case indicates that parol evidence may be given to show the circumstances existing when the will was written, including the condition, nature and extent of the testator’s property, the testator’s relations with his family and other beneficiaries, motives which may reasonably be supposed to influence him, the subject matter of the gift, etc., but does not indicate direct statements as to what the testator intended without reference to the instrument are admissible.

       Although appellant contends that the testimony given at the hearing revealed he had contributed sixty percent of the consideration, he does not on appeal contest the lower court’s finding that his contribution was fifty percent.


text:
    Carmen Ruth BURNETT and Samuel Edward DAVID, Jr. v. STATE of Arkansas
    CR 77-22
    556 S.W. 2d 653
    Opinion delivered September 26, 1977
    (Division I)
    [Rehearing denied November 14, 1977.]

      Jack Holt, Jr., for appellant Carmen Ruth Burnett.

      Bob Frazier, for appellant Samuel Edward David, Jr.

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

Carmen Ruth Burnett and Samuel Edward David, Jr. were convicted in the Garland County Circuit Court of four counts of robbery by use of a firearm. Both received prison sentences.

Their cases were consolidated for trial, and come to us consolidated, although Burnett and David conducted separate trial defenses and appeal separately.

We find no merit to Burnett’s appeal, but reverse and remand David’s case.

David, who did not testify during the trial, alleges five errors on appeal, only one of which has merit. He moved for a severance of the offenses and a severance of his and Burnett’s trial. We find no abuse of discretion in the court denying these motions. We do not find any error in the court refusing to give an instruction which would have declared Burnett an accomplice to the robberies, because she never admitted her guilt and maintained her innocence throughout the trial. We do, however, agree with David’s argument that the court improperly refused to instruct the jury that his failure to take the witness stand could not be used as evidence by the jury in determining his guilt or innocence. It is reversible error for a trial court to refuse to give such a requested instruction. Cox v. State, 173 Ark. 1115, 295 S.W. 29 (1927). Therefore, as to David, we reverse. The trial court felt the instruction would simply call attention to David’s failure to testify and might harm his cause. The dilemma often created by joint trials cannot be solved by compromising the rights individuals have when afforded a separate trial.

We find no error in Burnett’s case. She alleges three errors: The first two deal with the trial court’s refusal to grant severed trials on the robbery charges and to sever her trial from David’s. Burnett failed to move before the trial for severance of defendants or of offenses. Thus the objection is waived. Rules of Crim. Proc., Rule 22.1 (a) (1976).

The third allegation of error is that the trial court should have granted her motion for a directed verdict because the evidence against her was merely the uncorroborated testimony of accomplices. This argument is without merit. It is true that the uncorroborated testimony of an accomplice will not sustain a convictión. Ark. Stat. Ann. § 43-2116 (Repl. 1964); Henson v. State, 248 Ark. 992, 455 S.W. 2d 101 (1970). However, we find sufficient evidence besides that of the two robbers which connects Burnett with fhese crimes.

The state’s direct evidence against Burnett and David was mainly the testimony of two brothers, Robert Lee Russell and Noah Wayne Russell. The Russell brothers, the nephews of David, pled guilty to the four robberies and were sentenced to prison terms. Both of them have previous felony convictions. Essentially, these brothers testified that they were asked by David to come to Arkansas from California on behalf of a “lady” to rob Some people of diamonds and valuables. They claimed that Burnett furnished them a place to stay, vehicles, a gun, identified the victims and told them what valuables the victims possessed. They performed three separate robberies at the residences of the victims, robbing several people. They testified that they turned over to Burnett and David valuables, including several large diamond rings, for which they received money. They claimed they kept some of the valuables.

Burnett’s testimony was, of course, in conflict with that of the brothers. She testified that she did not question some of David’s, or some of his friends’ actions, because she intended to marry David. She had loaned him a large sum of money to help him get a divorce. As to the comings and goings of the Russell brothers, however, she claimed that she did not know them, their business or their intentions. They were simply acquaintances of David.

She admitted that she met the two brothers at the Little Rock Airport with David, took them to her home in Hot Springs and provided them a place to stay. She had known two of the victims for many years and knew they possessed large diamond rings. She admitted she called one of the victims on the phone on the morning of the robbery at David’s request. She said she was asked to inquire if the house was for sale. She admitted that she had ordered and paid for airline tickets for the two brothers whom she knew by other names. She steadfastly denied her guilt or implication in the robberies.

However, there was other evidence that connected Burnett to these robberies. It is undisputed that she pawned an unset diamond of over two carats on the 23rd of December, 1974. The diamond pawned was similar to a diamond claimed to have been stolen {rom one of the victims on December the 9th.

One of the victims testified that she kept in her possession a gray box, similar to a lockbox, which contained a great deal of money. She stated that only her husband and Burnett knew of the existence of the box. One of the robbers found a box similar to the lockbox in the victim’s house and stated, “No, this isn’t it; there is nothing in there.”

The robbers testified that Burnett furnished them with a .22 calibre Ruger automatic pistol to use in the robberies. Burnett had at one time kept a .22 calibre pistol similar to, if not a Ruger, in her home. At her first trial, which resulted in a mistrial, she denied that she had any gun in her home. She admitted at this trial that she had previously lied about having this gun. Her explanation was that she wanted to protect a friend who loaned her the gun. She stated the gun was discovered missing sometime in December, the year of the robberies.

These and other circumstances connected Burnett to the robberies and we cannot say, after reviewing the record, that the evidence is insufficient to corroborate the testimony of the. two accomplices. Therefore, we will affirm her conviction.

Reversed and remanded as to Samuel David, Jr.

Affirmed as to Carmen Ruth Burnett.

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


text:
    Charles K. SMITH v. STATE of Arkansas
    CR 77-128
    555 S.W. 2d 569
    Opinion delivered September 26, 1977
    (Division I)

      Shaver, Shaver & Smith, by: Tom B. Smith, for appellant.

      Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Charles K. Smith was convicted of possession of marijuana with intent to deliver and sentenced to three years imprisonment.

We affirmed Smith’s conviction and the U.S. Supreme Court denied his petition for certiorari. Smith v. State, 258 Ark. 601, 528 S.W. 2d 389 (1975), cert. denied, 425 U.S. 912 (1976).

The only question in this appeal is can a circuit court change a sentence from imprisonment to probation after final appellate review. The answer is no. The circuit court has no such jurisdiction or authority.

After Smith had appealed his conviction without success, he filed a petition in the lower court asking the judge to change his sentence from imprisonment to one of probation for three years. The same judge that sentenced Smith heard arguments and decided that Smith should be placed on probation. However, before a formal order was entered the judge died. His successor, upon motion of the prosecuting attorney, reviewed the file and decided that the circuit court had no jurisdiction to change the punishment and signed an order to that effect. Smith appeals from that order. We agree that the circuit court loses jurisdiction to change or alter a sentence under these circumstances. Mitchell v. State, 232 Ark. 371, 337 S.W. 2d 663 (1960).

There are exceptional circumstances that may give rise to a lower court regaining jurisdiction of a case that has been decided on appeal. For example, our rules of criminal procedure permit a new hearing before the trial court under certain circumstances and upon proper allegations. Rules of Crim. Proc., Rule 37 (1976).

Smith’s petition raises no legal grounds for relief. His plea is simply one of clemency. That plea will have to be made to the executive branch of government which, under our constitution, has the sole authority to grant such relief to a deserving individual. Ark. Const., Art. 6, § 18.

Affirmed.

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


author: George Rose Smith, Justice.

text:
    Elmer Lee PARHAM v. STATE of Arkansas
    CR 77-118
    555 S.W. 2d 943
    Opinion delivered October 3, 1977
    (Division I)

      Henry Morgan, for appellant.

      Bill Clinton, Atty. Gen., by: Robert J. Govar, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This appeal is from a verdict and judgment convicting the appellant of possession of marihuana with intent to deliver and sentencing him to imprisonment and a fine. Six points for reversal are argued.

Three of the points relate to the admission of evidence seized in the course of a search of the appellant’s home, pursuant to a search warrant. Rule 16.2 of the 1976 Rules of Criminal Procedure requires that objection to the use of such evidence be made by a motion to suppress, which must be filed not later than ten days before the date set for trial unless the court for good cause extends the time. Here the motion was not filed until a day or two before the date for trial, which apparently had been set several months in advance. No cause for the delay was asserted.

These three points for reversal must fail, because the trial court correctly denied the motion as having been filed toó late. It is argued that the Rule is unconstitutional, because the right to object to an unlawful search is a constitutional one that cannot be fettered by the ten-day limitation. Constitutional rights, however, must be asserted in the manner specified by valid procedural requirements. A complaint based upon a constitutional right must be in writing, must be verified if the statute or rule so requires, must be lodged in the right court, and must be filed within the time allowed by the statute of limitations. Similarly an answer must be filed within the time allowed, usually 20 days in Arkansas. Here the ten-day rule for the filing of motions to suppress is a reasonable one. The filing of such a motion can fairly be required in time to permit jurors to be summoned if a trial is necessary. If the motion is sustained and the evidence suppressed, the State needs time to decide whether to take an interlocutory appeal, as permitted by Rule 16.2 (d), or to go to trial without the evidence. If the State decides not to go to trial, there should be time for another case to be set in place of the one that has gone off the trial docket. Thus the Rule is valid; so the appellant’s three related points for reversal must be rejected.

Complaint is made that the court allowed the State to call two witnesses whose names were not listed in response to the defendant’s request for disclosure. The two witnesses testified only about the chain of custody of the marihuana that had been seized, in response to the defendant’s insistence upon strict proof of that chain. No prejudice is shown, nor was there any claim of surprise or request for a continuance. The court’s ruling was not an abuse of discretion. Gibson v. State, 252 Ark. 988, 482 S.W. 2d 98 (1972).

No error is shown in the trial court’s refusal to permit defense counsel to cross-examine a State’s witness, a former police officer, about the reasons for his dismissal from the municipal police force. The information sought to be elicited could have gone only to his credibility, not to the merits. That being so, a proffer of proof should have been made, even though the witness was being cross-examined. Washington Nat. Ins. Co. v. Meeks, 249 Ark. 73, 458 S.W. 2d 135 (1970). That is especially true here, as the appellant’s attorney states in his brief that he had information about the officer’s earlier discharge from other police departments. Without a proffer of that information the trial court could not determine whether the cross-examination should have been permitted, nor are we in a position to say whether there was prejudice.

Finally, the prosecuting attorney did not act improperly in withdrawing his offer to enter into a plea bargain, for the offer had not been accepted when a change in the turn of events led the prosecutor to withdraw the offer.

Affirmed.

We agree. Frank Holt, Roy, and Hickman, JJ.


text:
    INTERNATIONAL TRADING LTD., A Division of GNB, Inc.: GNB, Inc., J. R. ROSE and Arthur PALMER v. Harvey L. BELL, Securities Commissioner for the State of Arkansas
    77-96
    556 S.W. 2d 420
    Opinion delivered October 3, 1977
    (In Banc)
    [Rehearing denied November 7, 1977.]

      Bellows & Associates, by: Joel J. Bellows and Charles B. Bernstein; and Davidson, Plastiras & Horne, Ltd., by: Walter W. Davidson and Cyril Hollingsworth, for appellants.

      Harvey L. Bell, Securities Commissioner, by: James T. Pitts, Chief Counsel, Arkansas Securities Department, for appellee.

      Richard E. Nathan, Frederick T. Spindel and William E. Gressman, Washington, D.C., for amcius curiae, The Commodity Futures Trading Commission.
   John A. Fogleman, Justice.

The chancery court enjoined appellants from directly or indirectly employing any device, scheme or artifice to defraud; making any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading, or, engaging in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person. In doing so, the court overruled appellants’ demurrer. Appellants elected to stand on that demurrer, which alleged that it appeared on the face of the complaint that the court had no jurisdiction of the subject matter and that appellee did not have the legal capacity to sue in this action. Since we find that the chancery court erred in overruling this demurrer, we must reverse the decree.

The complaint was filed by the Securities Commissioner for the State of Arkansas under the Arkansas Securities Act, as amended [Ark. Stat. Ann. § 67-1235 et seq]. In it, he alleged that International Trading, Ltd., a division of GNB, Inc., GNB, Inc., J. R. Rose and Arthur Palmer were engaging in acts and practices and a course of conduct which constitute violations of various sections of the act in offering and selling a type of commodity option contracts known as “London commodity options.” He alleged that these acts and practices constituted a device, scheme or artifice to defraud and would operate as a fraud or deceit upon the purchasers of options and that appellants made misrepresentations of material facts or omitted to state material facts necessary to make the statements made not misleading in the light of the circumstances under which they were made. The acts and conduct specified were:

(a) engaging in an organized statewide, high-pressure, “boiler room” like sales campaign, conducted primarily by repeated, unsolicited, “cold-canvass” long distance telephone calls to persons who were inexperienced and unsophisticated as to London commodity options transactions, in which calls false and deceptive statements were made about profit expectations and the advisability of immediate purchase of such options to take advantage of purported favorable market prices for the options;
(b) hiring and directing sales persons without experience or knowledge of the risks and trading mechanics involved in such options and providing these salesmen with glowing, but deceptive and misleading “canned” sales speeches to be read to potential customers over the telephone, instructing these salespersons to conceal material facts, avoid unfavorable explanations, provide only minimal information, and tell these prospects anything to make a sale;
(c) representing and making it appear that the options being offered and sold would be purchased in the London market in the names of such customers, with the company acting as the purchaser’s agent, when in fact the options were purchased in the name of the company for its own account at prices substantially less than the customers paid the company;
(d) representing, without any reasonable basis, profits or returns which would double or triple the purchase price in a short period of time, but failing to disclose that many customers had actually lost their investments;
(e) concealing and misrepresenting the true nature of the purchase price, including all fees and markups, which customers pay to the company for the purchase of London commodity options; concealing the fact that the company marks up the price of each option purchased in the London markets between 40 and 150 percent;
(f) representing to purchasers and prospective purchasers that the company’s salespersons are well trained and have several years’ experience in the commodity option field, when, in fact, most of them have had substantially less than one year’s experience and the company provides no meaningful training to such salespersons, who are not specialists in the field of commodity options;
(g) failing to state that International Trading, Ltd., a division of GNB, Inc., and GNB, Inc. are foreign corporations not authorized to do business in Arkansas;
(h) failing to disclose the risk of loss to potential investors;
(i) failing to disclose that the investors were purchasing a commodity option rather than a true contract for future delivery of commodities;
(j) failing to disclose the actual closing date for transactions traded on the London Board of Options Exchange;
(k) using high pressure telephonic sales techniques emphasizing the likelihood of profits and not considering the investment needs of the customer;
(l) excessively marking up the price of the London commodity options sold to Arkansas investors;
(II) receiving compensation directly and indirectly for advising potential investors as to the value of these securities and employing a device, scheme or artifice to defraud and engaging in acts, practices or course of business which operated or would operate as a fraud or deceit upon purchasers in violation of Ark. Stat. Ann. § 67-1236 (a) (Repl. 1966) by omitting to state the material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.

The court heard appellee’s evidence on the allegations of fraud, but appellants, having elected to stand upon their demurrer, offered no evidence. Even so, the chancellor declined to make a finding that appellants had been guilty of fraud. The language of the decree stating the acts enjoined is couched entirely in words of § 1 of the Arkansas Securities Act [Ark. Stat. Ann. § 67-1235 (Repl. 1966)] declaring those acts, in connection with the offer, sale or purchase of securities to be unlawful.

For the purposes of this opinion we assume, but do not decide, that a London commodity option is a security, as alleged in appellee’s complaint and defined by Ark. Stat. Ann. § 67-1247 (1). If it is, it would be subject to regulation under the Arkansas Securities Act, except for the preemption of the field by the United States Congress through the Commodity Futures Trading Commission Act, an amendment to the Commodity Exchange Act. 7 USCA § 1 et seq.

In order to understand the question presented, it is necessary that certain terms, not generally familiar, be defined, as we understand them.

A commodity futures contract is a contract by which a seller agrees to deliver a definite quantity of a commodity in a specified future month, and the purchaser agrees to accept and pay for the commodity when it is delivered. The terms of the contract, except for the price, are fixed by the organized exchange through which the trading is done. Campbell, Trading in Futures Under the Commodity Exchange Act, 26 George Washington Law Review 215, 216-218. The price is determined by open bidding by traders on the floor of the commodity exchange. See Clayton Brokerage Co. of St. Louis v. Mouer, 520 S.W. 2d 802 (Tex. Civ. App., 1975); § 7 USCA §§ 6, 6b, 6c, Supp. 1977.

A commodity option is a contract right, purchased from the option seller for a fee called the “premium,” to buy from, or sell to, the option seller, the underlying commodity futures contract at a fixed price called the “striking price,” at any time during the life of the option. The striking price is usually the market price of the underlying commodity futures contract on the day that the option contract is sold. The option period is usually fixed, ranging from one month to a year or 18 months. An option to sell the underlying commodity futures contract is known as a “put.” An option to buy the underlying commodity futures contract is known as a “call.” It is also possible for the option purchaser to buy both a put and a call on the same commodity at the same time. Such a purchase is known as a “straddle,” or, more commonly, as a “double option.” Long, The Naked Commodity Option Contract as a Security, 15 Wm. & Mary L. Rev. 211, 212-14 (1974).

The purchaser of a call theoretically makes his profit when the market for the underlying commodity futures rises. If this occurs, he exercises his option, purchasing the underlying commodity futures contract from the option seller at the striking price and reselling it in the open market. His profit is the difference between the striking price and his selling price, less the premium he paid for the option. The purchaser of a put will profit similarly if the market falls sufficiently from the striking price for his profit on the futures contract to exceed the premium. Id. at 213. The purchaser of a double option will profit whether the market rises or falls, provided that the difference between the rise or fall and the striking price exceeds the premium he paid to the option seller. A commodity option is considered a more conservative investment than a commodity futures contract because the risk of loss is limited to the premium paid and is not a concomitant of price fluctuations in the commodity which may lead to additional margin calls. Note, Federal Legislation for Commodity Option Trading: A Proposal, 47 So. Cal. L. Rev. 1418, 1424-25 (1974).

Commodity option contracts in various forms have been present in the financial market place for a number of years. Before 1934, contracts on domestic commodities, such as wheat and cotton, were traded extensively on the major American exchanges. In that year, however, the Commodity Exchange Authority (CEA) banned trading in options on domestic commodities because of the abuses which had developed in the commodity option market. Trading in international, or “world” commodities, including silver, silver coins, platinum, cocoa, plywood, copper, coffee, and world sugar, was not affected, since such items were not subject to CEA jurisdiction. Long, cit. supra, pp. 213-14.

A London option is a right, for a price, to purchase or sell a commodity futures contract for a specified term at a specified price. Thus it is simply an extention of a commodity futures contract and is traded on the same London commodity exchanges as the underlying futures contract. World commodities traded on the London exchange include sugar, cocoa, coffee, rubber, silver and copper. See Clayton Brokerage Co. of St. Louis, Inc. v. Mouer, supra, appeal dismissed as mooted by reason of preemption by Commodity Futures Trading Commission Act of 1974, 531 S.W. 2d 805. For other discussions defining these terms and the commodity trading business, see British American Commodity Operations Corp. v. Bagley, 552 F. 2d 482 (2 Cir., 1977). For a discussion of the London option market and the sale of London options in the United States, see Long, Commodity Options — Revisited, 25 Drake L. Rev. 75, 111-128 (1975).

The language which we find to be a clear manifestation of the intention of Congress to exclude states from this field is found in provisos added to the Commodity Exchange Act by the Commodity Future Trading Act as set out in 7 USCA § 2 (Supp. 1977). They are:

*** Provided, That the Commission shall have exqlusive jurisdiqtion with respect to accounts, agreements (including any transaction which is of the character of, or is commonly known to the trade as, an “option”, “privilege”, “indemnity”, “bid”, “offer”, “put”, “call” “advance guaranty”, or “decline guaranty”), and transactions involving contracts of sale of a commodity for future delivery, traded or executed on a contract market designated pursuant to section 7 of this title or any other board of trade, exchange, or market, and transactions subject to regulation by the Commission pursuant to section 15a of this title: And provided further, That, except as hereinabove provided, nothing contained in this section shall (i) supersede or limit the jurisdiction at any time conferred on the Securities and Exchange Commission or other regulatory authorities under the laws of the United States or of any State, or (ii) restrict the Securities and Exchange Commission and such other authorities from carrying out their duties and responsibilities in accordance with such laws. Nothing in this section shall supersede or limit the jurisdiction conferred on courts of the United States or any State. ***

The language seems to us to express a clear intention to vest exclusive jurisdiction of the regulation of commodity options in the Commodity Futures Trading Commission and to supersede the jurisdiction of all state and federal agencies. Our conclusion is fortified by another section of the act, now appearing as 7 USCA 6c (b) (Supp. 1977), where Congress said:

No person shall offer to enter into, enter into, or confirm the execution of, any transaction subject to the provisions of subsection (a) of this section involving any commodity regulated under this chapter, but not specifically set forth in section 2 of this title, prior to the enactment of the Commodity Futures Trading Commission Act of 1974, which is of the character of, or is commonly known to the trade as, an “option”, “privilege”, “indemnity”, “bid”, “offer”, “put”, “call”, “advance guaranty”, or “decline guaranty”, contrary to any rule, regulation, or order of the Commission prohibiting any such transaction or allowing any such transaction under such terms and conditions as the Commission shall prescribe within one year after the effective date of the Commodity Futures Trading Commission Act of 1974 unless the Commission determines and notifies the Senate Committee on Agriculture and Forestry and the House Committee on Agriculture that it is unable to prescribe such terms and conditions within such period of time: Provided, That any such order, rule, or regulation may be made only after notice and opportunity for hearing: And provided further, That the Commission may set different terms and conditions for different markets.

This view is further strengthened by the report of the Congressional Conference Committee on the House and Senate versions of the bill for the act in question. That committee said:

The clarifying amendments make clear that (a) the Commission’s jurisdiction over futures contract markets or other exchanges is exclusive and includes the regulation of. . . commodity options; [and] (b) the Commission’s jurisdiction, where applicable, supersedes State as well as Federal agencies . .
Under the exclusive grant of jurisdiction to the Commission, the authority in the Commodity Exchange Act (and the regulations issued by the Commission) would preempt the field insofar as futures regulation is concerned . ... In view of the broad grant of authority to the Commission to regulate the futures trading industry, the Conferees do not contemplate that there will be a need for any supplementary regulation by the States. [Emphasis ours.]

See Senate Miscellaneous Reports on Public Bills, IX, Sen. Rep. 1178-1239, 93d Congress, 2d Session, pp. 35-36; see also, Securities and Exchange Commission v. American Commodity Exchange, Inc., 546 F. 2d 1361 (10 Cir., 1976) for other legislative history.

The vesting of exclusive jurisdiction is a clear indication that Congress intended no regulation in this field txcept under the authority of the act. See Rice v. Santa Fe Elevator Co., 331 U.S. 218, 67 S. Ct. 1146, 91 L. Ed. 1447 (1947); Johnson, Commodity Futures Trading Act: Preemption as Public Policy, 29 Vanderbilt L. Rev. 1, 2, 20.

Where the act conferred jurisdiction on the commission, at least one other court has held that it preempted the field of regulation insofar as the states are concerned. State v. Monex International, Limited, 527 S.W. 2d 804 (Tex. Civ. App., 1975), applied to London commodity options in Clayton Brokerage Co. of St. Louis v. Moeur, 531 S.W. 2d 805 (Tex. Sup. Ct., 1975). It has also been held that the act stripped the Securities Exchange Commission of authority previously vested in it. Securities Exchange Commission v. Univest, Inc., 405 FS 1057 (DC, Ill., 1975), 410 FS 1029, remanded 556 F. 2d 584 (7 Cir., 1977). There is at least tgcit recognition of the preemption in some cases in which it has beeh held that pending actions or actions taken before the newly created commission could act were not affected. See, e.g., State v. Coin Wholesalers, Inc., 250 N.W. 2d 583 (Minn. 1976).

Appellee makes some very appealing arguments in seeking to sustain his position that there is no preemption. First, he seizes upon the clause stating that “except as hereinabove provided, nothing contained in this section shall (i) supersede or limit the jurisdiction at any time conferred on . . . other regulatory authorities under the laws ... of any State or (ii) restrict . . . such other authorities from carrying out their duties and responsibilities in accordance with such laws,” and the statement that “ [n]othing in this act shall be deemed to supersede or limit the jurisdiction conferred on courts of. . . any state.” The argument that the exception relates only to regulation of commodities, not securities, is unavailing here because of the clear language of the act bringing commodity options within the purview of the act. The exception, then, eliminates the subject matter of this action from the jurisdiction of the regulatory laws of a state. Perhaps the Commodity Futures Trading Commission cannot regulate London exchanges, but it does have jurisdiction over accounts, agreements (including options) and transactions on contract markets or any other board of trade, exchange or market.

Appellee also argues that because the Arkansas Securities Act is not in conflict with the federal act, he should not be prevented from enforcing the state regulatory scheme. Where, however, as here, Congress has made it clear that authority conferred by it is exclusive in a given area the states cannot exercise concomitant or supplementary regulatory authority over the identical activity. Northern States Power Co. v. State, 447 F. 2d 1143 (8 Cir., 1971); Rice v. Santa Fe Elevator Corp., supra, 331 U.S. 218; Campbell v. Hussey, 368 U.S. 297, 82 S. Ct. 327, 7 L. Ed. 2d 299 (1961).

Appellee, consistent with his argument that Congressional intent to preempt is not manifest, invokes a test he finds in Northern States Power Co. v. State, supra, i.e.: (1) what is the intent of Congress as expressed in the legislative history of the act, (2) how pervasive is the federal regulatory scheme, (3) does the nature of the subject require exclusive regulation, and (4) is state law an obstacle to federal enforcement? An affirmative answer to all these questions is not required as a basis for finding an implied federal preemption. The court in that case stated these tests only as factors to be considered. Althougn we would be compelled to answer the fourth question in the negative, if we consider only the terms of the Arkansas Securities Act as presently written, the potential for obstacles is just as important as their existence. See Rice v. Santa Fe Elevator Corp., supra. Commodity Futures Trading Commission regulations could change this answer. As to the other questions, our answers are in the affirmative. We have already mentioned the legislative history and the broad scope of the Commodity Futures Trading Commission Act. There was at least a Congressional finding that the nature of the subject matter demanded exclusive federal regulations and we cannot say that this finding was unfounded. See Johnson, The Commodity Futures Trading Commission Act: Preemption as a Public Policy, 29 Vanderbilt Law Review 1. Even if we apply appellee’s tests, we find a strong implication that federal preemption was intended.

We do not agree with appellee that preemption will prevent the state from protecting its citizens from fraud. There is no reason why the state cannot prosecute an offender under such provisions as § 41-2203 (Crim. Code, 1976). There is no bar of actions by persons defrauded to recover money obtained from them by fraud. Such actions could not constitute any realistic threat of interference with the federal regulatory scheme and the act certainly does not afford protection of fraudulent conduct. See Farmer v. United Brotherhood of Carpenters of America, 430 U.S. 290, 97 S. Ct. 1056, 51 L. Ed. 2d 338 (1977).

Finally, appellee’s invocation of the Tenth Amendment is unavailing where the Congress had the power to act and, in acting, manifestly intended to preempt the field. In such a case, the supremacy clause (Art. VI, § 2) clearly has a bearing. See Rice v. Santa Fe Elevator Corp., supra, 331 U.S. 218; Northern States Power Co. v. State, supra, 447 F. 2d 1143. We do not understand appellee to argue that Congress has no power to regulate trading in London commodity options in the United States. It seems rather obvious to us that Congress does have the power under the commerce clause of the United States Constitution. This case does not involve the exercise of power which impairs the integrity of the states or their ability to function effectively, as was the case in National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976) upon which appellant relies. The case involved an attempt by Congress to prescribe minimum wages to be paid to state employees by the states, acting in their sovereign capacity. Clearly, there is no such invasion of the sovereignty of the states involved here. Here the exercise of congressional authority was directed to private citizens, not to the states as states, or to functions essential to their separate and independent existence.

We find that the chancery court had no jurisdiction to act in this proceeding under the provisions of the Arkansas Securities Act, and that the appellee had no standing to bring this action so the decree of the chancery court is reversed and the cause is dismissed.

Hickman, J., dissents.