text:
    HOWARD’S CLEANERS v. Ron MUNSEY, et ux.
    86-6
    708 S.W.2d 628
    Supreme Court of Arkansas
    Opinion delivered May 5, 1986

      Shelby R. Blackmon, for appellant.

      Friday, Eldredge & Clark, by; William H. Sutton and William A. Waddell, Jr., for appellee.
   Steele Hays, Justice.

In this action to recover damages for drapes which shrank during cleaning, Mrs. Rita Munsey testified that after consulting several cleaning firms she gave three sets of drapes to Howard’s Cleaners to be cleaned. Two sets of drapes were cleaned satisfactorily, but one set shrank some four or five inches and Howard’s efforts to correct the problem were not successful.

The Munseys filed suit and in a bench trial the circuit court awarded judgment in the sum of $2,120.60. Howard’s has appealed on the premise that it was error for the trial judge to find Howard’s liable when the cause of the damage was due to a hidden or latent defect in the material known only to Mrs. Munsey.

The short answer to Howard’s argument is we find no testimony whatever that Mrs. Munsey was aware of anything about the drapes bearing on their ability to withstand cleaning nor, for that matter, any proof that the shrinkage was due to a latent defect. There was testimony that drapery material that had not been preshrunk was liable to shrink and, according to Howard’s witnesses, Mrs. Munsey was warned of that possibility. However, Mrs. Munsey testified that she was not asked whether the drapes were preshrunk and could not have answered if she had been asked, because she simply did not know. She denied categorically that she was told the drapes might shrink. The trial court obviously accepted her testimony on this disputed issue and that finding could not be said to be clearly against the preponderance of the evidence. ARCP Rule 52. Taylor v. Richardson, 266 Ark. 447, 585 S.W.2d 934 (1979).

Although not offered as a point of error on appeal, Howard’s argument asserts there was no proof that Howard’s was negligent in cleaning the drapes. We addressed this issue in Howard’s Laundry and Cleaners v. Brown, 266 Ark. 460, 585 S.W.2d 944 (1979), a case bearing particular resemblance to this case, and noted the general rule of bailments that where a bailee returns goods in a damaged condition which were not so damaged when received, an inference of negligence applies. The bailee may then go forward with proof that he exercised ordinary care in handling the bailed goods. That point not having been developed in the briefs, nor any objection before the trial court appearing in the abstract, we will not go to the record to seek the answer. Ferguson v. City of Mountain Pine, 278 Ark. 575, 647 S.W.2d 460 (1983).

The judgment is affirmed.

Purtle, J., not participating.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Ross TROUT, et al. v. Charles MATHIS and Brenda MATHIS
    86-7
    708 S.W.2d 629
    Supreme Court of Arkansas
    Opinion delivered May 5, 1986

      Ross Trout, pro se.

      Gary Isbell, for appellees.
   David Newbern, Justice.

We affirm in this case because the abstract of the record provided by the appellants, pro se, is flagrantly deficient. Rules of the Arkansas Supreme Court and Court of Appeals 9(e)(2).

The appellants appeal from a dismissal of their claim. They argue the case was improperly dismissed pursuant to Ark. R. Civ. P. 41. They contend the case was once dismissed voluntarily in an Arkansas court and then again by a United States District Court for lack of subject matter jurisdiction, and that the second dismissal was not of the sort, as provided in Rule 41, to preclude them from bringing the claim again. There is no abstract of the order of the court with respect to the voluntary dismissal. Nor are the federal court order and the order appealed from here abstracted. A justice reading the abstract supplied has no means of evaluating these actions of the courts in the context of the appellants’ contentions with respect to Rule 41.

For this court to continue to operate efficiently each justice must be able to decide the case on the basis of the abstract without having to refer to the record. We cannot do that in this case. The abstracting requirement is the same for parties who appeal pro se as it is for those who are represented by attorneys. Bryant v. Lockhart, 288 Ark. 302, 705 S.W.2d 9 (1986); Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984).

Affirmed.

Purtle, J., not participating.


author: Per Curiam.

text:
    Michael B. JACKSON v. STATE of Arkansas
    709 S.W.2d 400
    Supreme Court of Arkansas
    Opinion delivered May 5, 1986

      Patrick H. Hays, for appellant.
    No objection.
   Per Curiam.

Appellant, Michael B. Jackson, by his attorney, has filed for a rule on the clerk.

His attorney, Donald K. Campbell, III, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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

Purtle, J., not participating.


text:
    Kenneth PARKER v. STATE of Arkansas
    709 S.W.2d 399
    Supreme Court of Arkansas
    Opinion delivered May 5, 1986

      Patrick H. Hays, for appellant.

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

Appellant, Kenneth Parker, by his attorney, has filed for a rule on the clerk.

His attorney, Patrick H. Hays, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Dennis ZOLPER v. AT&T INFORMATION SYSTEMS, INC. and CHASE COMMERCIAL CORPORATION
    86-8
    709 S.W.2d 74
    Supreme Court of Arkansas
    Opinion delivered May 12, 1986

      Henry, Walden & Davis, for appellant.

      House, Wallace, Nelson & Jewell, P.A., by: Lawrence E. Chisenhall, Jr. and John R. Clayton, for appellee.
   Jack Holt, Jr., Chief Justice.

The question presented by this appeal is whether venue is proper in Craighead County for an action against a foreign corporation registered to do business in Arkansas and having a place of business in Craighead County where the cause of action arose. The Craighead County Circuit Court held that venue was proper only in Pulaski County, where the foreign corporation’s principal place of business is and where it was served, and dismissed the action. We reverse and remand. Jurisdiction in this court is pursuant to Sup Ct. R. 29(l)(c).

Appellant, Dennis Zolper, purchased by contract a telephone system for his business from appellee, AT&T Information Systems, Inc. Appellant’s business is in Jonesboro, the county seat of Craighead, and the purchase was from appellee’s place of business in Jonesboro. The contract was later assigned to Chase Commercial Corporation, a Delaware corporation not registered to do business in Arkansas. Appellant brought this action in Craighead County against both AT&T-IS and Chase, alleging that the finance charge on the contract constituted a usurious interest rate of 18% per annum. Summons was served on AT&T-IS on its registered agent for service in Pulaski County. Chase was served by use of the Arkansas long-arm statute, Ark. Stat. Ann. § 27-2502 (Repl. 1979).

AT&T-IS and Chase jointly moved to dismiss the complaint, asserting that venue was proper only in Pulaski County where AT&T-IS has its principal place of business and agent for service. Chase also alleged that it lacked sufficient minimum contacts with Arkansas to be subject to the jurisdiction of Arkansas courts under the long-arm statute, however, this issue is not before us on appeal.

Appellant contends that the circuit court erred in holding that Ark. Stat. Ann. § 27-609 (Repl. 1979) does not establish venue in this situation and we agree. That statute provides:

An action, other than those mentioned in sections 1164, 1165, 1166, 1167, 1168, 1169, 1170, 1172, 1173, 1174, 1175 of Crawford & Moses’ Digest of the Statutes of Arkansas, against a person, firm, copartnership or association engaged in business in this State which has of maintains more than one office or place of business in this State, may be brought in any county in which such person, firm, copartnership or association has or maintains any office, branch office, sub-office or place of business and service of process upon an agent of any such person, firm, copartnership or association at any such office, branch office, sub-office or place of business shall be service upon such person, firm, copartnership or association. (Emphasis added)

The circuit court ruled that this section does not apply to corporations, and that venue was set by Ark. Stat. Ann. § 27-613 (Repl. 1979) in the “county in which the defendant, or one of several defendants, resides, or is summoned.” Arkansas Stat. Ann. § 27-109 (Repl. 1979), however, states that “the word person includes a corporation as well as a natural person.” Other venue statutes, Ark. Stat. Ann. §§ 27-611 and 27-613 — 615 (Repl. 1979), have been held applicable to corporations based on this section. Woodruff Elec. Coop. Corp. v. Weis Butane Gas Co., 221 Ark. 686, 255 S.W.2d 420 (1953); East Texas Motor Freight Lines v. Wood, 218 Ark. 211, 235 S.W.2d 882 (1951); Harger v. Oklahoma Gas & Electric Co., 195 Ark. 107, 111 S.W.2d 485 (1937).

It is true that § 27-609’s list of actions excluded from its coverage includes Ark. Stat. Ann. § 27-608 (Repl. 1979) (Crawford & Moses’ Digest § 1174). This section purports to give venue for actions against non-resident individuals and foreign corporations “in any county in which there may be property of or debts owing to the defendant.” We have held that this section does not control venue when a foreign corporation is doing business in this state and has a resident agent upon whom process may be served. Cavette v. Ford Motor Credit Co., 260 Ark. 874, 545 S.W.2d 612 (1977). This is so because “venue cannot constitutionally be laid against a foreign corporation in any county where the venue would not be proper in a suit against a domestic corporation or a resident individual.” Power Manufacturing Co. v. Saunders, 274 U.S. 490 (1927). Section 27-608 cannot be, and was never asserted as, the basis for venue in this action. Furthermore, Ark. Stat. Ann. § 27-605 (Repl. 1979), a venue statute for domestic, corporations, is not excluded by the list in § 27-609. We see no reason why the Legislature would intend to make domestic corporations and not foreign corporations subject to the venue of counties where the corporation has a place of business or office.

Appellee’s only other argument pertaining to the application of § 27-609 is based on Harger, supra, which stated in dicta that, if not for Ark. Stat. Ann. § 27-347 (Repl. 1979), a corporation domiciled in one county, but having a branch office in another county, would not be subject to suit in the latter county. This case never mentioned § 27-609, and we do not find it necessary to follow its implications which likely resulted from a mere oversight.

The policy behind Act 74 of 1935, which created § 27-609, can be found in the preamble to that Act, which reads:

WHEREAS, large and numerous business enterprises of various kinds are being operated in the State of Arkansas by individuals, firms, co-partnerships and association of persons and under the law as it now exists the venue for suits against them is fixed in the county of their residence or where such person or a member of the firm, co-partnership or association may be found, and in many instances this works to the disadvantage of those who deal with such person, firm, co-partnership or association by requiring the person so desiring to sue to go to the place of residence of such person, firm, co-partnership or association and it is the purpose of this Act to relieve against this situation.

The Legislature clearly intended that when a business enterprise, regardless of its form, maintains an office or place of business in counties other than its principal place of business, the business enterprise should be subject to the venue of those other counties. This policy is as equally applicable to corporations as it is to natural persons, firms, co-partnerships and associations. In the present case, the transaction took place in Craighead County; the appellant’s business where the system was installed is there; the appellee has a place of business there; and presumably the witnesses and evidence are located there. The only connection with Pulaski County is that the designated agent for AT&T-IS was served there, which is permissible under Ark. Stat. Ann. § 27-350 (Repl. 1979) and Ark. Stat. Ann. § 64-1223 (Repl. 1979), and AT&T-IS’s principal place of business is there. These facts demonstrate the logical reasons for finding that the Legislature intended § 27-609 to create venue in an action against a corporation, foreign or domestic, in a county where the corporation elects to establish a place of business or branch office. Venue properly rests in Craighead County.

Reversed and remanded.

Purtle and Newbern, JJ., not participating.


author: George Rose Smith, Justice.

text:
    Daryl VAUGHN v. STATE of Arkansas
    CR 85-224
    709 S.W.2d 73
    Supreme Court of Arkansas
    Opinion delivered May 12, 1986

      William R. Simpson, Jr., Public Defender; Arthur L. Allen, Deputy Public Defender, by: Vicki J. Sandage, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The owner of a grocery in Pulaski County was robbed on June 14, 1984, by the appellant Vaughn and an accomplice. The two men were captured within a few minutes, after the appellant had fired a pistol at an officer. Vaughn was charged as an habitual criminal with aggravated robbery, theft of property, attempted murder, and felon in possession of a firearm. The jury found Vaughn guilty of all the charges and sentenced him to life imprisonment for the aggravated robbery and to terms of years for the other three crimes. The severity of the sentences was presumably due to Vaughn’s having ten prior convictions.

The only argument for reversal is that the court should have granted a defense motion for a mistrial on the ground that the trial judge, in identifying the lawyers for the jury panel, should not have mentioned that the defense attorney was from the Public Defender’s Office. The theory is that the jurors might have inferred that Vaughn was indigent and likely to be a burden to society.

We think the objection to be speculative rather than practical. Jurors are ordinarily reasonably well-informed men and women. They know that indigency is widespread in this nation, as indicated by poverty programs, food stamps, public defenders, Medicaid, Salvation Army appeals, charitable drives, and countless other activities that daily attest the existence of indigence in the country and in Pulaski County. The probability that a jury’s verdict in a case like this one would be affected by a remark such as the one complained of is insignificant. If defense counsel wanted the matter to be kept from the jury, he should have made his objection known to the judge before the trial began.

A similar point seems to have arisen in only three cases. In two of them the defense counsel himself told the jury that he was court appointed. Of course there was no objection, but in both instances the appellate court observed that the practice is not a good one. United States v. Naylor, 566 F.2d 942 (5th Cir. 1978); Sanders v. State, 429 So.2d 245 (Miss. 1983). The third case is somewhat similar to the case at bar. Compton v. State, 460 So.2d 847 (Miss. 1984). There the court told the jurors, during the voir dire, that the defendant’s counsel was court appointed. The reviewing court held that there was no reversible error, but it added that caution should be taken in telling jurors that defense counsel is court appointed. That is certainly the better practice.

A secondary argument is that after denying the motion for a mistrial the court should have given the jury an admonition to disregard the reference. Counsel, however, did not request such an admonition, perhaps because he did not want to magnify the incident in the eyes of the jury. We find no merit in the appellant’s argument nor in any other objection that has been brought to our attention.

Affirmed.

Purtle, J., not participating.


author: Darrell Hickman, Justice.

text:
    Richard S. COZZAGLIO v. STATE of Arkansas
    CR 85-123
    709 S.W.2d 70
    Supreme Court of Arkansas
    Opinion delivered May 12, 1986

      Darrell E. Baker, Jr., Deputy Public Defender, for appellant.

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

Richard Cozzaglio kidnapped a young teenaged female in Washington County and drove her to Madison County where he raped her. He was convicted of kidnapping in Washington County and sentenced to 20 years; he was convicted of rape in Madison County and sentenced to life. Initially the trial court scheduled one trial for both charges in Washington County, but the state insisted on separate trials in separate counties. Cozzaglio made a timely motion before the first trial in Washington County to join both charges in one trial. The motion should have been granted because Cozzaglio was tried twice in violation of A.R.Cr.P. 21.3, which is based on the double jeopardy prohibitions in both the United States and Arkansas Constitutions.

The proof presented by the state was essentially the same at both trials. In the kidnapping trial in Washington County, the state proved that Cozzaglio picked up the victim beside a rural road about 8:15 a.m. on the morning of July 27, 1984; he pulled her into his car, had a knife with which he cut her, and drove 24 miles to adjoining Madison County where he raped her. He put her out of the car and she ran to a nearby store where she reported the rape. Cozzaglio notified the Springdale Police Department in Washington County that his car had been stolen that same day. That evening an officer talked to Cozzaglio ostensibly about the car theft, but then questioned him concerning the kidnapping and rape. At first, according to the officer, Cozzaglio said he was with a neighbor. The officer questioned the neighbor who denied this and, when confronted, Cozzaglio admitted that he had been with the victim but that she voluntarily went with him; later she tried to “back out” of having sexual intercourse so he “took it anyway.” There was other corroborative evidence: identification of Cozzaglio by the victim, samples of hair, and a torn tee shirt the victim used to bandage her hand. Cozzaglio did not testify in Washington County. Approximately two months later, in the rape trial in Madison County, some medical testimony was added and Cozzaglio testified. He denied that he raped the victim but admitted they had sexual intercourse.

When the defense moved for a joinder of the offenses in Washington County, waiving any objection to venue, the trial judge refused. He reasoned that the two counties were separate jurisdictions and venue for the crimes were separate; that the charges were not the same and Madison County had a right to try him for the rape which occurred there, just as Washington County had a right to try him for the kidnapping which occurred there. While the charges were not the same, they arose from the same continuing course of conduct and both counties had jurisdiction and venue.

There is no doubt that the kidnapping occurred in Washington County, continued into Madison County and culminated with a rape in Madison County. En route the victim was physically harmed, fondled,.and forced to commit oral sex on Cozzaglio. Ark. Stat. Ann. § 43-1414 (Repl. 1977) provides:

Where the offense is committed partly in one (1) county and partly in another,, or the acts or effects thereof, requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county. (Italics supplied.)

AiR.Cr.P. Rule 21.3 required the judge to grant the defense motion to join the charges in one trial.

Rule 21.3 has its basis in the Double Jeopardy Clause of the United States Constitution, contained in the Fifth Amendment, which provides: “. . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . .” The United States Supreme Court has held this clause to contain three separate guarantees: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711 (1969).

This doctrine was explained in Note, Twice in Jeopardy, 75 Yale L.J. 262, 266 (1965) as follows:

. . . The courts understand these rules as expressions of self-evident moral principles: it is wrong to retry a man for a crime of which he previously has been found innocent, wrong to harass him with vexatious prosecution, and wrong to punish him twice for the same crime. Inquiry usually stops here. We are rarely told why it is wrong to retry for the same crime or punish twice. We never learn precisely what constitutes harassment, nor when it will bar reprosecution. The judiciary is content to apply the double jeopardy prohibition with only a reverent nod to its policies.
Several policies underlie the double jeopardy prohibition. First, guilt should be established by proving the elements of a crime to the satisfaction of a single jury, not by capitalizing on the increased probability of conviction resulting from repeated prosecutions before many juries. Thus reprosecution for the same offense after an acquittal is prohibited. Second, the prosecutor should not be able to search for an agreeable sentence by bringing successive prosecutions for the same offense before different judges. Thus reprosecution after a conviction is prohibited. Third, criminal trials should not become an instrument for unnecessarily badgering individuals. Thus the Constitution forbids a second trial — a second jeopardy -— and not merely a conviction at the second trial. Finally, judges should not impose multiple punishment for a single legislatively defined offense. Thus multiple punishment for the same offense at a single trial is prohibited.

Like many current legal questions, what once was simple has become complicated. Today a vast array of criminal charges can be brought for what is essentially one criminal act or episode; many times the charges are related or dependent upon each other.

For example the capital felony murder charge depends upon the felony underlying the murder. A death must have been caused while in the course of committing or attempting to commit one of seven specified felonies. Ark. Stat. Ann. § 41-1501(a) (Repl. 1977). To prove capital murder the state must first prove the felony, so the felony becomes an element of the murder charge. Because it is an essential element a defendant cannot be tried separately for these crimes or punished for both. This prohibition usually comes into play when double punishment is imposed. Swaite v. State, 272 Axk. 128, 612 S.W.2d 307 (1981); Whalen v. United States, 445 U.S. 684 (1980).

Related to the double jeopardy doctrine is the theory that the state ought to charge a defendant in one case with all possible charges arising out of a single episode. Justice Brennan of the United States Supreme Court articulated this principle best in his concurrence in Ashe v. Swenson, 397 U.S. 436 (1970):

In my view, the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction. This ‘same transaction’ test of ‘same offense’ not only enforces the ancient prohibition against vexatious multiple prosecutions embodied in the Double Jeopardy Clause, but responds as well to the increasingly widespread recognition that the consolidation in one lawsuit of all issues arising out of a single transaction or occurrence best promotes justice, economy, and convenience.

Cozzaglio makes essentially two double jeopardy arguments. The first argument is that the state was required to prove rape to prove kidnapping and, therefore, they are the same offense. This argument is without merit. Kidnapping and rape are not lesser included offenses of one another. Each crime requires a different element of proof. Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984). Each requires proof of a fact not required by the other. Ark. Stat. Ann. § 41-107(l)(b)(i) (Repl. 1977). Moreover, while kidnapping does require the restraint to be substantial for one of several purposes, one of which is the purpose of engaging in sexual intercourse, kidnapping does not require the act of sexual intercourse itself. Ark. Stat. Ann. § 41-1701 (Repl. 1977). Rape requires a sexual act by forcible compulsion; that force is not necessarily the same as that required to sustain a conviction for kidnapping. See Ark. Stat. Ann. § 41-1803 (Supp. 1985); Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980).

Cozzaglio’s argument that the trials should have been joined under A.R.Cr.P. Rule 21.3 does have merit. That rules provides:

(a) Two (2) or more offenses are related offenses for the purposes of this rule if they are within the jurisdiction and venue of the same court and are based on the same conduct or arise from the same criminal episode.
(b) When a defendant has been charged with two (2) or more related offenses, his timely motion to join them for trial shall be granted unless the court determines that because the prosecuting attorney does not have sufficient evidence to warrant trying some of the offenses at that time, or for some other reason, the ends of justice would be defeated if the motion is granted. The defendant’s failure to so move constitutes a waiver of any right of joinder as to related offenses with which the defendant knew he was charged.
(c) A defendant who has been tried for one (1) offense may thereafter move to dismiss a charge for a related offense, unless a motion for joinder of these offenses was previously denied or the right of joinder was waived as provided in subsection (b). The motion to dismiss must be made prior to the second trial, and shall be granted unless the court determines that because the prosecuting attorney did not have sufficient evidence to warrant trying this offense at the time of the first trial, or for some other reason, the ends of justice would be defeated if the motion were granted.

This rule has three requirements: the offenses must be within the jurisdiction of the same court, arise from the same conduct or criminal episode, and a timely motion to join must be made. All three requirements were met in this case and when that motion to join was made in Washington County, the trial judge should have granted it. Necessarily that means the second trial was barred; the conviction of rape must be reversed and the charge dismissed. See People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973). Cozzaglio could have been tried in either county for both offenses, but not separately on separate charges.

Affirmed as to the Washington County conviction. Reversed and dismissed as to the Madison County conviction.

Purtle, J., not participating.


text:
    Robert JENNINGS v. STATE of Arkansas
    CR 85-229
    709 S.W.2d 69
    Supreme Court of Arkansas
    Opinion delivered May 12, 1986

      Henry & Moore, by: John R. Henry, for appellant.

      Steve Clark, Att’y Gen., by: Jerome T. Kearney, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Robert Jennings was convicted of raping his ten year old stepdaughter and sentenced to life imprisonment. On appeal he makes one argument: the physician who examined the victim was improperly allowed to testify to her opinion on the ultimate issue, that issue being Jennings’ guilt. That was not the opinion expressed nor was this precise objection made to the trial court. We affirm.

Dr. Yoland Condrey testified that her examination of the victim revealed an old, well-healed scar around the hymen, distension of the vaginal opening, and a small amount of white discharge. She said the victim’s history and examination were consistent with penetration by an adult penis on more than one occasion. An objection was made to the doctor’s basing this conclusion on medical history. No mention was made of “ultimate issue.” The doctor later said a history of sexual abuse or penetration or attempted penetration was important in connection with such an examination. She concluded by giving her opinion that penetration occurred by an adult penis.

The defense, in part, was that the victim’s 14 year old half-brother had had sexual intercourse with the victim. The argument on appeal is that Dr. Condrey’s opinion that the victim was abused by an adult was an opinion on the ultimate issue since that opinion would negate the half-brother’s involvement.

The opinion given was not the ultimate issue to be decided, that being whether Jennings was guilty. Unif. R. Evid., Rule 704 provides:

Opinion on ultimate issue. . . Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

No argument is made on appeal that an expert could not form such an opinion on the basis expressed by Dr. Condrey. Moreover, the doctor testified that her findings might be consistent with intercourse with a 14 year old, depending on the maturity of the male.

Affirmed.

Purtle, J., not participating.


text:
    Bob SCOTT v. The Honorable W.J. “Bill” McCUEN, et al.
    86-52
    709 S.W.2d 77
    Supreme Court of Arkansas
    Opinion delivered May 12, 1986

      Hilburn, Bethune, Calhoon, Forster, Harper & Pruniski, Ltd., by: Sam Hilburn, for appellant.

      Cliff Jackson, for intervenor, Cliff Jackson.

      Friday, Eldredge & Clark, by: Herschel H. Friday, Paul B. Benham, and Robert S. Shafer, for intervenors, Edward W. Davis, and The Arkansas Telephone Association.

      Friday, Eldredge & Clark, by: Michael G. Thompson, Paul B. Benham, and Robert S. Shafer, for intervenor, Arkansas Power and Light Co.

      Sam Bratton, Counsel to the Governor, for intervenor, Bill Clinton, Governor.

      Steve Clark, Att’y Gen., Mary B. Stallcup, Deputy Att’y Gen., by: Elizabeth A. Walker, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

This action is filed as an original action under Amendment 7 to the Arkansas Constitution. Its admitted purpose is to seek an early ruling on the ballot title for Initiated Act 1 of 1985. The Secretary of State certified the ballot title before any petition was submitted to him. We have no authority to decide the issue until petitions are submitted to the Secretary of State and he declares them sufficient or insufficient according to the power vested in him by Amendment 7. The Secretary of State had no authority to act prematurely and neither do we. Therefore this action must be dismissed.

Generally, the initiated act would revoke the franchise of Arkansas Power and Light Company. It contains other important features, including provisions affecting electricity, gas and telephone companies. This action began when the Attorney General reviewed the ballot title and popular name, found that the phrases “closed door deal-making” and “influence peddling” amounted to partisan coloring, and changed the phrases. Cliff Jackson, the sponsor of the amendment, filed a petition for a writ of mandamus in this court to require the Attorney General to certify the title as originally proposed. We refused to issue the writ or bind ourselves on the question of whether the title was impartial or free of deception. Jackson v. Clark, 288 Ark. 192, 703 S.W.2d 454 (1986).

Jackson then sought and obtained a certification from the Secretary of State that the proposed title was, indeed, sufficient, although no petitions had been filed with that office. As a result, this “friendly” lawsuit was filed by Bob Scott, a taxpayer, as an original action against the Secretary of State claiming the ballot title deficient in 26 respects. Cliff Jackson intervened asking us to expedite our decision.

The Governor intervened asking us, in the name of justice and public interest, to rule on the ballot title in advance of certification of the sufficiency of the petition. The Attorney General, representing the Secretary of State, asks us to approve the title. We ordered Arkansas Power and Light Company joined as a necessary party because its franchise is directly in issue. Edward W. Davis, executive vice-president of the Arkansas Telephone Association, and the association itself intervened. Arkansas Power and Light Company, Davis, and the Arkansas Telephone Association have filed motions to dismiss, claiming lack of jurisdiction and lack of case or controversy; the motions must be granted.

The parties all concede that previously we have only reviewed the sufficiency of the ballot title after the petitions have been certified by the Secretary of State. We are asked to approve the title before certification for two reasons: it is legal to do so and it would prevent the expenditure of state money in counting the signatures when it might prove futile were we to declare the title deceptive and enjoin its submission to the voters, and it would be best to rule before proponents spend time and money securing thousands of signatures and publicizing the proposition.

There is no question but that cases questioning the sufficiency of ballot titles have been difficult. They are difficult for those who propose and oppose constitutional change, and they are difficult for us. In Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356 (1931), we exercised our right to decide if a ballot title was sufficient and set a standard for that review. We held that a title should be free from any misleading tendencies, whether by amplification, omission, or fallacy, and it must contain no partisan coloring. That has been the law ever since. See Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960). Our practice of reviewing ballot titles to prevent deception has proven to be sound. The reports are replete with cases where the voters were being deliberately deceived by ballot titles. See Johnson v. Hall, 229 Ark. 400, 316 S.W.2d 194 (1958); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958); Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936); Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952).

There are many cases that have sharply divided this court. See Ark. Women’s Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984); Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982); Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982). The proposals are often controversial and involve the passionate feelings of special groups. The mere difficulty of the issue however or the likelihood of last minute problems with the title does not provide us with a basis for hearing this case or any case prematurely. Our power is derived from Amendment 7. This case is predicated on the argument that since Amendment 7 permits the Secretary of State to certify the sufficiency of the petition and since that determination includes the sufficiency of ballot title, the determination can be made at any time, even before the petitions are filed.

Amendment 7 provides in pertinent part:

Sufficiency — the sufficiency of all State-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes. The sufficiency of all local petitions shall be decided in the first instance by the county clerk or the city clerk, as the case may be, subject to review by the Chancery Court.

We have repeatedly held that our original jurisdiction must be invoked pursuant to Amendment 7. See Berry v. Hall, supra; Hargis v. Hall, 196 Ark. 878, 120 S.W.2d 335 (1938); Rambo v. Hall, 195 Ark. 502, 112 S.W.2d 951 (1938). Our jurisdiction attaches only after the petition is declared sufficient and that determination must be of the sufficiency of both the title and the signatures. See Bailey v. Hall, 198 Ark.815, 131 S.W.2d 635 (1939). The Secretary of State shall only determine the sufficiency of the petition after the petition is filed with the signatures, and not before. (Many petitions are necessary to gather the number of signatures required, but they are considered to be only one petition. Czech v. Baer, 283 Ark. 457, 677 S.W.2d 833 [1984].) In Rambo v. Hall, supra, the petitioner filed an original action in this court seeking to enjoin the Secretary of State from declaring the sufficiency of a proposed bill. We held that the action was premature, because, “until the Secretary of State shall have acted upon the sufficiency of the petition and his action therein shall have been properly challenged, we have nothing to review.” Just as the Secretary of State had no authority to certify the ballot title, we have no right to rule on this case at this time.

We simply cannot create our own right to answer legal questions regarding initiated acts; that right must be given to us by the constitution' American Party of Arkansas v. Brandon, supra; see also Berry v. Hall, supra. Moreover, no controversy is presented. No genuine controversy will exist until the petition is filed and the Secretary of State declares it sufficient or insufficient. We do not give advisory opinions or rule on questions which may be moot. McCuen v. Harris, 271 Ark. 863, 611 S.W.2d 503 (1981); Rambo v. Hall, supra. If the proponents are unable to gather the requisite number of signatures, the question raised will be moot.

The argument for an early decision, primarily to save the sponsors’ time and money has another side. Should we devote the time, effort and financial resources of this court and the parties to decide an issue that may never be presented to the voters? What if the Secretary of State refuses to cooperate with a sponsor? Would we alter Amendment 7 and order him to do something clearly not required? Would a premature decision by us be binding for four, six or eight years? Who decides who the parties are to be in a friendly lawsuit? Friendly to whom? Our existing procedure does have a distinct advantage: it keeps us all honest. Sponsors know it is to their advantage to present an honest title so it will not be stricken at the last minute and we know that we are not rendering merely an advisory opinion which may become moot. We know our decision counts and we will be accountable for it. Any other course would discourage both honesty and responsibility; sponsors would be inclined to offer a misleading ballot title that might pass unnoticed and we would be deciding the case in the abstract.

Our legal procedure, indeed our legal system, is not necessarily quick or expedient but it has proven far better than one that rushes to premature judgments; one where the people and institutions affected can only be anticipated and one with only a hope that all pertinent issues have been addressed. It is our function to adjudicate not advise, and any deviation from that principle, however well-intentioned, is presumptuous. If the sponsors of this act gather sufficient signatures, if the Secretary of State certifies the petition as sufficient or insufficient, and if a court challenge is made of that decision, we will then decide the matter.

Dismissed.

Purtle, J., not participating.

       We did not reach the question in Jackson of whether Ark. Stat. Ann. § 2-208 (Supp. 1985) unconstitutionally extends our original jurisdiction. American Party of Arkansas v. Brandon, 253 Ark. 123, 484 S.W.2d 881 (1972); Berry v. Hall, 232 Ark. 648, 339 S.W.2d 433 (1960).

       Not all titles for constitutional amendments are challenged. Notably Amendment 59, proclaiming a cure for our decision in Public Service Comm’n. v. Pulaski Co. Bd. of Equalization, 266 Ark. 64, 582 S.W.2d 942 (1979), is being studied to determine what it does, in fact, mean. See Act 589 of 1985.


author: Steele Hays, Justice.

text:
    GREGG BURIAL ASSOCIATION v. Billy Joe EMERSON d/b/a EMERSON & SON FUNERAL HOME
    85-320
    709 S.W.2d 401
    Supreme Court of Arkansas
    Opinion delivered May 12, 1986

      Barrett, Wheatley, Smith & Deacon, for appellant.

      Bradley & Coleman, for appellee.
   Steele Hays, Justice.

Appellee Billy Joe Emerson, doing business as Emerson & Son Funeral Home, brought this action against Gregg Burial Association to recover either merchandise and services or the face value of benefits due under burial policies (entitled Certificate of Membership) issued by Gregg to six decedents to whom Emerson had rendered burial services. Two of the six policies were for $300 and four for $500.

Emerson gave credit in the amounts provided in the policies against the overall cost of each funeral and took an assignment of benefits due under each policy. Gregg denied liability, contending any benefits which might have been due were forfeited.

Emerson and Gregg stipulated that timely notice of the death of the decedents was given Gregg in accordance with each policy and that Emerson was notified that benefits would be forfeited if Emerson was employed as servicing funeral director. The parties also stipulated that each decedent lived within a radius serviced by the funeral director customarily employed by Gregg, and that the bylaws of Gregg provided that funeral services and supplies would be furnished by the funeral home designated by Gregg.

Relying on the case of Drummond Citizens Insurance Company and Roller Funeral Home v. Chester Sergeant, Executor, 266 Ark. 611, 588 S.W.2d 419 (1979), the trial court awarded judgment for the face amount of each policy plus interest before judgment at 6% and thereafter at 10%. Gregg argues on appeal that Drummond is distinguishable on its facts and, alternatively, we should overrule Drummond. We disagree that Drummond is distinguishable and we decline to overrule it.

In Drummond we held that the same language as used in these policies was ambiguous and failed to inform the policyholder that the issuer of the policy had the exclusive right to furnish a complete funeral service and all supplies. While there is some variation among the certificates before us, all six contain the following language, identical to the language which the Drummond majority found to be ambiguous:

Upon the death of a member of the Association, those in charge of the body of the deceased shall notify the Secretary-Treasurer, who shall have exclusive right to furnish services and supplies, to be selected by those in charge of the body of the deceased and of a value equal to the face amount of the Membership Certificate.

That wording prompted the trial court in this case to rule that Drummond was directly in point. The ruling was correct.

Burial policies are so similar to policies of insurance generally that the same rules of construction apply. Anderson v. Frank Reid Burial Association, 218 Ark. 817, 239 S.W.2d 12 (1951). That being so, any doubts about the meaning of a policy of insurance must be resolved in favor of the insured and against the insurer who prepared the policy and is answerable for its clarity. Travelers Indemnity Company v. Imogene Hyde, 232 Ark. 1020, 342 S.W.2d 295 (1961).

Appellant insists this language is clear and unambiguous and should be interpreted as proposed by the dissenting opinion of Justice Holt in the Drummond case. But we thjnk the certificate holder is entitled to be told in a clearer fashion that the funeral home chosen by the association must furnish all the goods and services of a complete funeral, or else the benefits provided in the policy will be forfeited. It is enough to note that forfeiture is not favored in the law, and for good reason. We do not imply the law will deny the enforcement of a forfeiture per se, only that forfeitures are not favorites of the law, and that is particularly true of equity, but in any event such provision must be clear and express. Ingram v. Kochitzky, 282 Ark. 203, 668 S.W.2d 21 (1984); Humke v. Taylor, 282 Ark. 94, 666 S.W.2d 394 (1984); Triplett v. Davis, 238 Ark. 870, 385 S.W.2d 33 (1964); Berry v. Cranford, 237 Ark. 380, 373 S.W.2d 129 (1963); Higgenbotham v. Harper, 206 Ark. 210, 174 S.W.2d 668 (1943).

Appellant points to a difference in the evidence between Drummond and the case before us. In Drummond the rules and bylaws of the Arkansas Burial Association Board were not in the record, whereas they are in this case. Under Ark. Stat. Ann. § 66-1823 (Repl. 1980) the rules and regulations of the Board are given the force and effect of statute.

The Rules and Regulations of the Board state that the bylaws of a burial association may provide that when an association is notified of the death of a policyholder, the association (through its Secretary-Treasurer) “shall designate a funeral director to prepare the body for interment according to the terms of the certificate held by the member at time of death.” They also provide that if the funeral home customarily employed by the association cannot service the funeral, then the association shall pay at least 80% of the face value of the certificate to the servicing funeral director.

Appellant submits these provisions tell the policyholder what the policy itself fails to make clear. We are not persuaded they resolve the ambiguity found in Drummond, but we need not decide that, as the record does not tell us whether these Bylaws and Rules and Regulations were in effect when these policies were issued. Beyond that, it is settled that where an insured is not given the complete terms of a policy, the language in that portion of the policy he is given, will govern the transaction. Lawrence v. Providential Life Insurance Company, 238 Ark. 981, 385 S.W.2d 936 (1965). For the reasons stated, the judgment is affirmed.

Affirmed.

Purtle, J., not participating.


text:
    Mark W. HINES v. STATE of Arkansas
    CR 85-218
    709 S.W.2d 65
    Supreme Court of Arkansas
    Opinion delivered May 12, 1986

      John W. Settle, for appellant.

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

On March 1,1984 the body of Prince Scott was found in a pool of blood on the floor of a Ft. Smith pawnshop where he worked. He had been shot in the neck with a shotgun. The cash register drawer was missing, as well as a pistol from an open display case. Currency was scattered near the body.

In what then seemed an unrelated matter, Mrs. Mary Clark contacted the Ft. Smith police on May 23 complaining of a threat on her life. She reported that her son-in-law, Alan Hines, her daughter, Pamela Hines, and Alan’s brother, Mark, had poured formaldehyde on furniture at her apartment. She was referred to the prosecuting attorney, Mr. Ron Fields. Fields interviewed Mrs. Clark, and satisfied her fears were genuine, he made inquiries about the capability of formaldehyde to cause death, if inhaled sufficiently. Mrs. Clark signed a blank warrant for the arrest of Alan Hines, Pamela Hines and Mark Hines for criminal mischief. Because family disputes sometimes resolve themselves and because he recognized Mark Hines’s name in connection with the Scott murder, Fields concluded that caution was advised and he referred Mrs. Clark to the police for further investigation. At some point, Officer Rickman was sent to Mrs. Clark’s apartment and observed formaldehyde on the furnishings. On Sunday, May 27, Mrs. Clark was interviewed by Sgt. Harlan Sweeten and Ron Fields later signed an information charging the Hineses with criminal mischief. On May 28 warrants of arrest were issued by Municipal Judge Harry C. Foltz.

On Monday the warrants were executed and only Pamela Hines was found. She was arrested and brought to police headquarters. She told the officers Mark Hines had told her he killed Prince Scott. A short time later Alan and Mark Hines appeared voluntarily at police headquarters where the Miranda warnings were given. Mark Hines was questioned simultaneously about the formaldehyde incident and the homicide, and without urging he gave a detailed statement to the police in which he admitted shooting Prince Scott at the pawnshop. He said Scott objected to his dating his daughter and had threatened to kill him if he continued. Hines described instances when Scott had tried to assault him. Hines told of coming to the pawnshop on March 1 and when Scott drew a pistol Hines said he shot him with a 20 gauge shotgun. Hines grabbed the pistol and blood spattered cash drawer and left.

Mark Hines was charged with the murder of Prince Scott, convicted and sentenced to thirty-five years imprisonment. On appeal he argues the trial court erred in denying his motion to suppress his statement. We affirm.

Probable Cause

Mark Hines insists there was no probable cause to arrest him for criminal mischief and that his arrest was a mere pretext so he could be questioned on the more serious charge of murder. It follows, he argues, that if the arrest was unlawful then his statement should have been excluded as being “fruit from the poisonous tree.” Wong Sun v. United States, 371 U.S. 471 (1965). We disagree that Mark Hines’s arrest was unlawful, or that the misdemeanor charge was simply a pretext.

Mary Clark testified at the suppression hearing that she and her lawyer had gone to the office of the prosecuting attorney. She told him Alan Hines, Pam and Mark were at her apartment and put formaldehyde on a couch, chair, ottoman and a loveseat while she was asleep in a bedroom. Alan, she said, later admitted having done it and said he “wished it had killed me.” Mark and Pam never admitted to any involvement. She said the formaldehyde belonged to Mark Hines. She signed blank warrants of arrest against all three individually, which were subsequently completed, charging each with criminal mischief. On May 28, the prosecutor executed a verified information and the warrants of arrest were signed by Judge Foltz.

We have examined the record carefully and are satisfied that reasonable cause, as defined by the Supreme Court and our own cases, existed for the issuance of the warrant for Mark Hines’s arrest. A.R.Cr.P. Rule 7. Probable cause is said to be only a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that a crime has been committed by the person suspected. Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981). Probable cause does not require the quantum of proof necessary to support a conviction, and arrests are to be appraised from the viewpoint of a prudent and cautious police officer at the time the arrest is made. Reed v. State, 9 Ark. App. 164, 656 S.W.2d 249 (1983).

On appeal, all presumptions are favorable to the trial court’s ruling on the legality of the arrest and the burden is on the appellant to demonstrate error. Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975). Determination of probable cause is said to be based on factual and practical considerations of everyday life upon which reasonable and prudent men, rather than legal technicians, act. Draper v. United States, 358 U.S. 307 (1959); Brinegar v. United States, 338 U.S. 160 (1949). Thus, a nontechnical approach has been said to afford the best compromise for accommodating the competing interests of the individual and of society, so that law enforcement officers will not be unduly hampered, nor law abiding citizens left to the mercy of the whim and caprice of overzealous police officers. Beck v. Ohio, 379 U.S. 89 (1964). In making the determination of probable cause the reviewing court should be liberal rather than strict. Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976).

In that light, we believe the record confirms the ruling of the trial court with respect to probable cause. There was some dispute between Pamela and Alan Hines, on the one hand, and Mrs. Clark, on the other, involving the couch; Alan, Mark and Pam were together at the Clark apartment at the time of the incident; the relational ties between the three individuals, the fact that Alan Hines admitted his own involvement, and the fact that the formaldehyde belonged to Mark Hines are circumstantial links to the crime. Clearly the two brothers were close, as Mark went first to Alan’s apartment after shooting Scott, and Mark wanted Alan at his side when he gave the statement to the police. It is not unreasonable to assume if all three were at the apartment when the act occurred, an act one of them admits to, and the formaldehyde used to accomplish the crime was Mark’s, that Mark Hines was involved.

Appellant points out that while Mrs. Clark was adamant in her accusations against Alan Hines, she was somewhat equivocal as to Mark and Pamela. But she admitted she wanted all three arrested if they were involved and according to Sgt. Sweeten, she blamed all three. These discrepancies were for the trial court — the abiding fact is she signed warrants against all three and her testimony at the suppression hearing must be judged in light of its having been a year later, and long after she had dropped charges against all three. We think the trial judge was right to rule as he did.

Pretextual Arrest

Coupled with the probable cause argument is the contention that Mark Hines’s arrest for criminal mischief was merely a pretext to enable the police officers to question him about the murder of Prince Scott. We disagree.

Pretextual arrests are not new to the law. United States v. Lefkowitz, 285 U.S. 452 (1932). We examined the law recently in Richardson v. State, 288 Ark. 407, 706 S.W.2d 363 (1986), where we found an arrest for public drunkenness to have been a pretext for the furtherance of a murder investigation. This case is readily distinguishable. In Richardson, pretext was demonstrated in that a search for evidence of murder had no relation to the nature and purpose of the arrest for public drunkenness, and by the fact that even before Richardson was charged with public drunkenness the officers testified he would not have been permitted to leave because he was a suspect in the murder investigation.

Claims of pretextual arrest raise a unique problem in the law — deciding whether an ulterior motive prompted an arrest which otherwise would not have occurred. Confusion can be avoided by applying a “but for” approach, that is, would the arrest not have occurred but for the other, typically the more serious, crime. Where the police have a dual motive in making an arrest, what might be termed the covert motive is not tainted by the overt motive, even though the covert motive may be dominant, so long as the arrest would have been carried out had the covert motive been absent. Professor La Fave, Criminal Procedure, § 3.1(d), p. 144, describes this as the correct result. Because the action would have been taken in any event, he states, “[TJhere is no conduct which ought to have been deterred and, thus, no reason to bring the Fourth Amendment exclusionary rule into play.” Abel v. United States, 362 U.S. 217 (1966). See People v. Guido, 95 Misc.2d 47, 407 NYS 2130 (1978).

We find no pretext here because the testimony convinces us the arrest on criminal mischief would have occurred in any event. Nor is this a case of the police making an arrest on a contrivance to gain evidence not otherwise available to them. Mark Hines was arrested on the complaint of a private citizen, Mary Clark, and there was, as we have seen, a reasonable circumstantial basis for the charge of criminal mischief. The police did not seek out Mrs. Clark, nor encourage her to complain against Mark Hines and the other two. Indeed, she needed no prompting. The evident fact is Mrs. Clark was the instigator of the arrest, not the police. The police and prosecutor, if anything, were cautious in their dealings with her. It was she who pursued the matter, calling repeatedly on Sunday and Monday to see if any action had been taken. Finally, it must be noted the charge of criminal mischief was made on the sworn statement of the prosecuting attorney and the arrest authorized by a warrant signed by a judicial officer.

Appellant makes much of the fact that it was extraordinary for Judge Foltz to issue warrants of arrest. But the argument goes no farther, and offers no conclusion. Granted, it may have been a rare occurrence, but having said that, there is little left to say, except to observe that the warrants were issued on Memorial Day and Judge Foltz may have been the only judge available. His authority to issue warrants is not questioned and we cannot presume some impropriety on the bare allegation the procedure was unusual.

We find nothing improper about these procedures, nor anything to suggest the in-custodial statement was coerced. If this statement were suppressed the case would be a classic example of the unfortunate extreme to which the exclusionary rule has been extended.

The judgment is affirmed.

Purtle, J., not participating.

       For example see: State v. Haven, 269 N.W.2d 849 (Minn. 1978); United States v. Carriger, 541 F.2d 545 (6th Cir. 1976); Amador-Gonzales v. United States, 391 F.2d 308 (5th Cir. 1968); McKnight v. United States, 183 F.2d 977 (App. D.C. 1950).


text:
    Cynthia Ann Tinnon BESHEAR v. John AHRENS & Bob KNIGHT, Individually, d/b/a MOUNTAIN HOME BROADCASTING CORPORATION
    85-303
    709 S.W.2d 60
    Supreme Court of Arkansas
    Opinion delivered May 12, 1986

      Sanford L. Beshear, Jr., for appellant.

      Leo J. Carner, for appellees.
   David Newbern, Justice.

This appeal arises from an action for partition brought successfully by the appellant, Cynthia Beshear. She appeals from an award granted by the trial court to her two cotenants, the appellees, against her share of the partition proceeds. The appellees contended they had paid Mrs. Beshear’s share of the mortgage, taxes, and insurance for a period in excess of three years. The court awarded the appellees an amount equal to one-third of the morgage, taxes, and insurance payments over a three-year period. The appellant claims it was error to require her to contribute one-third of these payments. She argues laches and contends she had been dispossessed of the property by her two cotenants and was thus entitled to a set-off for rent. She also urges it was error not to have awarded her attorney a fee. We affirm the decree.

The property in question was referred to by the witnesses as a lake cabin. It was purchased around 1976 by John Ahrens, Bob Knight and Gayland Pitts, each owning a one-third interest. In 1979, Ed Cunningham, the former husband of the appellant, purchased Pitts’s one-third interest and began making one-third of the mortgage payments. Cunningham and the appellant were divorced in 1980. The divorce decree purportedly conferred upon the appellant the one-third interest in the property she and Cunningham had owned jointly and upon Cunningham the obligation to retire the debt. Cunningham made the payments for one-third of the mortgage, taxes and insurance until 1981. Upon Cunningham’s death in 1982, the appellant inquired of the appellees what they were to do about the lake cabin. They assured her she need not worry about it. The payments on the mortgage, insurance, and taxes on behalf of the appellees were made by Mountain Home Broadcasting Corp., except that in 1982 the appellant was asked to make the annual insurance payment, and she did.

The appellant claimed the appellees were barred by laches from recouping the one-third they had paid on behalf of her interest in the property in view of their failure to make any demand of her, other than with respect to the 1982 insurance payment, or to claim against Cunningham’s estate. She claims they are not entitled to subrogation because they made the payments as mere volunteers. She also says their claim is barred because they did not present the “best evidence” of having made the payments, i.e., documentary evidence. Further, she argues the condition in which the appellees maintained the cabin effectively dispossessed her, and she is entitled to rental value to an extent which would, when set off against the appellees’ claim, reduce it to nothing.

1. Laches

There is no evidence that any demand, other than for the 1982 insurance payment, was made on the appellant from the time Cunningham stopped making the payments in 1981. The appellant says this silence estops the appellees from making the demand now, citing Franklin v. Hempstead County Hunting Club, 216 Ark. 927, 228 S.W.2d 65 (1950). The appellants’ brief quotes this language from the Franklin case, which, in turn, quoted it from Stewart v. Pelt, 198 Ark. 776, 131 S.W.2d 644 (1939):

“The doctrine of laches which is a species of estoppel rests upon the principle that, if one maintains silence when in conscience he ought to speak, equity will bar him from speaking when in conscience he ought to remain silent. . . .” [216 Ark. at 930, 228 S.W.2d at 67]

After the ellipsis, the quotation, not included in the appellant’s brief, continues as follows:

“Mere lapse of time before bringing suit, without change of circumstances or in the relation of the parties, will not constitute laches. Not only must there have been unnecessary delay, but it must appear that, by reason of the delay, some change has occurred in the condition or relation of the parties to the property which would make it inequitable to enforce the claim. So long as the parties are in the same condition, a claim for land may be asserted within the time allowed by law.”

The quotation, in its entirety, is a correct statement of the laches doctrine. The appellant has shown no change, resulting from the delay, which would make enforcement of the appellees’ claim inequitable.

2. Subrogation

The appellant contends the appellees made the one-third payments due with respect to her part of the property as “mere volunteers,” citing Moon Realty Co., Inc. v. Arkansas Real Estate Co., Inc., 262 Ark. 703, 560 S.W.2d 800 (1978). In that case, Moon Realty Co. had purchased at a foreclosure sale property belonging to Arkansas Warehouse Corp. and Rose Courts. The U. S. Government held a tax lien on the property. As to Arkansas Warehouse Corp. and Rose Courts, the specific lien was satisfied in the foreclosure action, but the foreclosure did not completely satisfy their tax obligation to the government or that of three other persons who were presumably somehow related to Arkansas Warehouse Corp. and Rose Courts but were not parties to the foreclosure proceeding. To avoid redemption by the government of the foreclosed property, Moon Realty Co. paid the outstanding tax liabilities of all five of the appellees. We held that subrogation was appropriate as to the amounts paid on behalf of Arkansas Warehouse Corp. and Rose Courts but not as to the other three. The difference was premised on our conclusion that as to Arkansas Warehouse Corp. and Rose Courts there had been a “valid tax lien” with respect to the property in which Moon Realty Co. was trying to protect its interest, but not as to the others whose taxes were paid.

In this case, the appellees had an interest in the property to protect. Had not complete payments (three-thirds as opposed to two-thirds) been made, the mortgage presumably could have and would have been foreclosed. The appellees’ situation vis-á-vis the appellant is thus analogous to that of Moon Realty Co. vis-avis Arkansas Warehouse Corp. and Rose Courts, and subrogation was appropriate. See also Cox v. Wooten Brothers Farms, Inc., 271 Ark. 735, 601 S.W.2d 278 (Ark. App. 1981).

3. Best Evidence

The appellant contends that because the appellees did not present documentary evidence of the payments they had made on her behalf their counterclaim should have been denied. We do have cases, such as Morgan v. State, 213 Ark. 493, 211 S.W.2d 108 (1948), holding that if primary evidence of a transaction is available, secondary evidence is inadmissible. Here, however, no objection was made by the appellant to the testimony presented by the appellees as to the amounts they paid. When no objection has been made at the trial level, we will not consider a question of admissibility of evidence on appeal. Foote v. Jitney Jungle, Inc., 283 Ark. 103, 671 S.W.2d 186 (1984); Arkansas State Highway Commission v. Newton, 253 Ark. 903, 489 S.W.2d 804 (1973).

The dearth of evidence produced at the trial is remarkable. Not only did the appellant not produce her divorce decree by which she acquired her former husband’s interest in the property, she showed no indicia of title whatever. Nor was the two-thirds interest of the appellees or the encumbrance demonstrated by any deed or mortgage. The entire proceeding was based on the testimony of the parties except for some pictures and a video tape introduced by the appellant to show the condition of the property.

This lack of evidence of title troubled the chancellor, and rightly so. But he ultimately concluded that neither side doubted or contested the fact that the propety was owned in thirds by the appellant and the two appellees, and that it was subject to a mortgage. He held that it would be unfair not to require the appellant to make contributions of one-third of the payments made by the appellees for the three preceding years. We agree.

The chancellor cited Houston v. Griffin, 227 Ark. 709, 300 S.W.2d 931 (1957). In that case we held that one who had paid off a purchase money mortgage and taxes was entitled to contribution from a cotenant. That the appellant may have had a claim against the estate of Cunningham for failure to have made the payments as required by the divorce decree does not detract from the uncontested facts that the appellant was a cotenant with the appellees, the property was subject to a mortgage, insurance, and taxes, and that the appellees made the full payments.

4. Possession

The appellant’s testimony was devoted mostly to saying she was effectively dispossessed because of the dirty condition in which she found the cabin from time to time, forcing her to stay in a motel rather than clean the cabin. The chancellor found the actions of the appellees in this respect did not amount to dispossession of the appellant. He, therefore, denied her a rental value set off against the counterclaim.

While a tenant in common who excludes a cotenant may be liable for rent, see Lawrence v. Lawrence, 231 Ark. 324, 329 S.W.2d 416 (1959); Hamby v. Wall, 48 Ark. 135, 25 S.W.705 (1886), dispossession is largely a question of fact. We will not reverse the chancellor’s determination absent a showing it was clearly erroneous. Ark. R. Civ. P. 52(a). That has not been shown here.

5. Attorney Fee

The appellant contends that she is entitled to have an attorney fee taxed as costs in the action as provided in Ark. Stat. Ann. § 34-1825 (Supp. 1985).

There are at least two reasons to deny the fee. First, although a fee was requested in the appellant’s complaint, the matter was not raised with the chancellor at or after the trial. The chancellor made no ruling whatever on the matter of a fee because he was not asked to. Secondly, Ark. Stat. Ann. § 34-1825.1 (Supp. 1985) limits the court in the award of a fee to consideration of “only those services performed by the attorney requesting a fee which are of common benefit to all parties.” There is no evidence of any such services having been performed by the appellant’s attorney.

Affirmed.

Purtle, J., not participating.


text:
    Daniel Price CLIFTON v. STATE of Arkansas
    CR 85-216
    709 S.W.2d 63
    Supreme Court of Arkansas
    Opinion delivered May 12, 1986

      William R. Simpson, Jr., Public Defender, by; Donald K. Campbell III, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by; Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant was convicted of rape and attempted rape and was sentenced to sixty and twenty years imprisonment, respectively, for these offenses. He appeals from the attempted rape conviction on the ground that the nine-year-old prosecuting witness was incompetent to testify. We affirm.

The rape conviction resulted primarily from the testimony of seven-year-old Shirley Bryans who told the jury about being at home on the morning in question with the appellant, her sister Ritha, and a brother who was playing outdoors. Shirley testified that Ritha, then aged eight (nine at the time of trial) was being kept in the bathroom by the appellant as punishment for having tormented a kitten. The appellant lived with Shirley, Ritha, their brother, and their mother who was temporarily away from the home. Shirley testified as to how the appellant raped her on that morning and how she told her mother of the incident when the mother returned to the home. Shirley was examined by a doctor who found evidence of recent vaginal penetration. At an omnibus hearing, Ritha, the nine-year-old, at first said she did not know the difference between telling the truth and telling a lie but then, after some coaxing with examples, said she did know the difference and that she knew she would be punished for lying. She testified that “Daniel P. Clifton” locked her in the bathroom and, after moving her from the bathroom to the closet and back a time or two, came into the bathroom and “stuck his penis down my throat.”

At the trial both girls gave substantially the same testimony as at the omnibus hearing except Ritha said the appellant “tried” to stick his penis down her throat. The physician’s report, which was entered as a joint exhibit, stated that Ritha had told the doctor that the appellant had not succeeded in placing his penis in Ritha’s mouth.

On cross examination at the trial Ritha said she had not liked the appellant both before and after the incident. He had punished her and she had wanted to get even with him. She then said that she had changed her mind and did not want to get even.

The appellant argues that it was only after Ritha was led to the answers the prosecutor wanted to hear that the court ruled she was competent. He contends her use of the full name “Daniel P. Clifton” and words such as “penis” further demonstrate that she was too easily led to be considered a competent witness.

We find no abuse of discretion in this case. With respect to Ritha, the original charge of rape was reduced to attempted rape. Her testimony was consistent with that of her sister concerning events of the morning in question. The inconsistencies in her testimony elicited when she was being examined for competency did not so exceed the bounds to be expected with a juvenile witness as to make the decision to allow her testimony an abuse of discretion. Nor are we convinced that Ritha’s use of words she has heard when discussing the case with adults indicates the trial court was wrong in assessing her competency.

We will not reverse a trial judge’s exercise of the broad discretion to determine the competency of a witness absent a manifest error or clear abuse. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589(1980). The issue is one in which the trial judge’s evaluation is particularly important due to the opportunity he is afforded to observe the witness and the testimony. As long as the record is one upon which the trial judge could find a moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts, we will not hold there has been a manifest error or abuse of discretion in allowing the testimony. Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982); Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982).

Affirmed.

Purtle, J., not participating.


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    Robert Steven OSGOOD and Anthony Gerald TEMPLE v. STATE of Arkansas
    CR 85-45 and CR 85-46
    709 S.W.2d 401
    Supreme Court of Arkansas
    Opinion delivered May 12, 1986

      Hani W. Hasham, for appellant, Osgood.

      Gibson & Gibson, P.A., by: R. Bynum Gibson, for appellant, Temple.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Per Curiam.

The petitioners, Robert Steven Osgood and Anthony Gerald Temple, were charged with possession of a controlled substance with intent to deliver in violation of Ark. Stat. Ann. § 82-2617(a)(l)(iv). Both petitioners moved to quash the felony information, alleging that the crime charged was a misdemeanor, rather than a felony. The circuit judge denied both motions. The petitioners then filed writs of prohibition in this court, claiming that the Bradley Circuit Court was without jurisdiction to try them for a misdemeanor. We granted petitioners’ motions to consolidate their cases since they presented the same issue. We then granted a temporary writ of prohibition on March 4, 1985, and allowed the parties to brief the issue.

Subsequently, the appellee filed a motion to reconsider the issuance of the temporary writ of prohibition. We granted that motion on April 1, 1985.

We decided the issue raised in this case in Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985) where we found the Legislature enacted § 82-2617 to upgrade the penalties for offenses which were already felonies, and the Legislature intended no change in the felony status of those offenses.

Accordingly, the temporary writ of prohibition is dissolved, the petitioners’ motion for permanent writ of prohibition is denied, and the case is remanded to circuit court for trial on the merits.

Purtle, J., not participating.


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    Joey PUCKETT v. Evietta PUCKETT
    85-256
    709 S.W.2d 82
    Supreme Court of Arkansas
    Opinion delivered May 19, 1986

      James C. Cole, for appellant.

      Terry P. Diggs, Central Arkansas Legal Services, for appellee.
   Jack Holt, Jr., Chief Justice.

The exclusive jurisdiction of county courts over bastardy cases is again being challenged in this appeal. Since we are being asked to construe the Arkansas Constitution, our jurisdiction is pursuant to Sup. Ct. R. 29(l)(a).

The parties in this case have married and divorced each other twice. Between the first divorce and the second marriage, they had a child out of wedlock. During the second divorce hearing, the appellant asked that a determination as to custody of the child be made. The chancellor found he was without jurisdiction of custody, support or other matters relating to the child because the Arkansas Constitution gives county courts exclusive jurisdiction of all matters pertaining to bastards. In his appeal from that order, appellant argues that chancery court is the historical forum for matters concerning minors, and art. 7 § 28 of the Arkansas Constitution, which confers bastardy jurisdiction on the county court, violates the equal protection clause of the United States Constitution. We find no merit in his argument and affirm the chancellor.

We have repeatedly held that original jurisdiction of all matters relating to bastardy is in the county court and that, although the reason for placing that jurisdiction with the county court no longer exists, until and unless the constitution is changed that is the law. Jarmon v. Brown, 286 Ark. 455, 692 S.W.2d 618 (1985); Stain v. Stain, 286 Ark. 140, 689 S.W.2d 566 (1985); Rapp v. Kizer, Chancellor, 260 Ark. 656, 543 S.W.2d 458 (1976); and Higgs v. Higgs, 227 Ark. 572, 299 S.W.2d 837 (1957). In Jarmon we specifically found that a lawsuit for custody of an illegitimate child must be heard in county court.

Appellant acknowledges our holdings on this issue, but claims that none of these cases presented the constitutional question of equal protection.

We need not reach appellant’s constitutional argument, however, because we cannot ascertain from the transcript whether this issue was presented to the trial court. The record on appeal consists of the chancellor’s decree and the notice of appeal. There is no mention in the decree of appellant’s equal protection argument. The appellant had the burden of presenting a record and abstract sufficient to show the trial court was wrong. City of Star City v. Shepherd, 287 Ark. 188, 697 S.W.2d 113 (1985); SD Leasing, Inc. v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983); and King v. Younts, Chief of Police, 278 Ark. 91, 643 S.W.2d 542 (1982). We have long held that assignments of error may not be raised for the first time on appeal and, accordingly, if the argument was not presented to the trial court, we do not consider it here. Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983).

Accordingly, the judgment appealed from is affirmed.

Purtle, J., not participating.


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    Leroy WILLIAMS v. STATE of Arkansas
    CR 85-201
    709 S.W.2d 80
    Supreme Court of Arkansas
    Opinion delivered May 19, 1986

      Q. By rum Hurst, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant was convicted of first degree murder for the shooting death of Johnny Lampkins at the Varsity Bar in Pine Bluff, Arkansas. He was sentenced to life imprisonment and, on appeal, challenges the sufficiency of the evidence and the trial court’s denial of his motion for a new trial. Óur jurisdiction is pursuant to Sup. Ct. R. 29(l)(b). We affirm.

On appellate review of a criminal case, we determine whether the verdict is supported by substantial evidence, which means whether the jury could have reached its conclusion without having to resort to speculation or conjecture. Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983). In determining the sufficiency of the evidence it is permissible to consider only the testimony that tends to support the verdict of guilt. Id.

Here, the state medical examiner testified that Lampkins died of a shotgun blast to the chest. The state then offered the testimony of four eyewitnesses. The first, Rickey Winston, was with Lampkins when he was shot, and identified the appellant as the man who shot him. Lonzo Eans, who was sitting in front of his gas station located near the Varsity Club, testified he saw the appellant pull up in front of the club in a truck, get a shotgun from the truck, stick the gun in the door of the club, fire it, and then put the gun back in the truck and drive off. Curtis Thorns, who was with Eans, testified to substantially the same story. Irene Akins, the appellant’s sister-in-law, testified she was standing near the Varsity Club, between Howlett’s Diner and the street, when she saw the appellant, who was carrying a gun, walk between Howlett’s and the Varsity Club to the door of the Varsity Club. She then heard a gunshot.

Appellant’s argument as to the sufficiency of the evidence primarily concerns the credibility of these witnesses. We have repeatedly held that it is the province of the jury to determine the credibility of the witnesses and this court will not disturb their findings regarding credibility. Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983). For these reasons, the appellant’s contention is without merit.

The appellant further contends that the state did not meet its burden of proving premeditation. Inasmuch as premeditation, deliberation, and intent may all be inferred from the circumstances, such as the weapon used, the manner in which it was used, the wounds inflicted, and the conduct of the accused, McLemore v. State, 274 Ark. 527, 626 S.W.2d 364 (1982), we find the state met its burden of proof.

A collateral point discussed in the state’s brief and the appellant’s reply brief, is the trial court’s refusal of appellant’s request to take the jury to visit the crime scene. Appellant maintains that, had the jury been taken to the scene, it would have affected their view of the credibility of some of the testimony. A request to view a place pertinent to a material fact is a matter within the trial court’s discretion and denial of the request is not a ground for reversal absent an abuse of that discretion. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984). Appellant has not demonstrated such an abuse of discretion.

The final issue raised by appellant is styled as an objection to the trial court’s failure to grant his motion for new trial because a necessary witness was absent from the trial. In his brief, however, appellant argues the trial court should have granted him a continuance until he could obtain the presence of this witness. No such continuance was ever sought and that issue, therefore, need not be addressed.

As to the motion for a new trial, the trial judge never ruled on this motion. We have held numerous times that the burden of obtaining a ruling is on the movant and objections and questions left unresolved are waived and may not be relied upon on appeal. Collier v. Hot Springs Savings & Loan Ass’n, 272 Ark. 162, 612 S.W.2d 730 (1981); Phillips v. State, 266 Ark. 883, 587 S.W.2d 83 (Ark. App. 1979).

Even if this issue were properly preserved for appeal, we would affirm the trial court’s ruling. The absent witness was Lois Akins, the husband of Irene Akins. Appellant maintains Lois would have testified that he was with his wife on the day of the shooting and did not see the appellant walk between the two buildings carrying a gun as Irene testified. Evidence which only attacks the credibility of other testimony is not grounds for a new trial. Orsini v. State, supra; and Williams v. State, 252 Ark. 1289, 482 S.W.2d 810 (1972).

Pursuant to Sup. Ct. R. 11 (f) and Ark. Stat. Ann. § 43-2725 (Repl. 1977) we have considered all objections brought to our attention in the abstract and briefs. We find no prejudicial error and accordingly the judgment appealed from is affirmed.

Purtle, J., not participating.


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    Odis Donell THOMAS v. STATE of Arkansas
    CR 85-195
    709 S.W.2d 83
    Supreme Court of Arkansas
    Opinion delivered May 19, 1986

      Youngdahl, Youngdahl & Wright, P.A., by: Thomas A. McGowan, for appellant.

      Steve Clark, Att’y Gen., by: Connie Griffin, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

This prosecution for rape has now been in the state and federal courts for more than six years. On November 27,1979, the prosecutrix reported to the police in Monticello, in Drew County, that she had been raped that morning. The police suggested that she and her husband ride around in the vicinity of the washateria where the attack occurred and look for the man. They did so. The next day the prosecutrix recognized the appellant, who was in a yard working on his car.

Thomas was arrested and charged with rape. At first he pleaded not guilty, but then he changed his plea to guilty in return for a negotiated 30-year sentence. After that he filed a Rule 37 petition asking to withdraw his plea of guilty, for ineffective assistance of counsel. In that proceeding we affirmed the trial court’s denial of the petition. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982). Thomas then sought relief in the federal courts, on the same ground. The district court’s judgment setting aside the conviction was upheld by the court of appeals. Thomas v. Lockhart, 569 F.Supp. 454 (E.D. Ark. 1983), affirmed, 738 F.2d 304 (8th Cir. 1984).

The State elected to retry the case. The trial court granted a defense motion for a change of venue. The case was tried in Ashley County. The jury found Thomas guilty and sentenced him to life imprisonment. Upon this appeal from the ensuing judgment four arguments for reversal are submitted.

It is first argued that the court should have granted defense counsel a continuance to enable him to investigate the make-up of the jury panel. The defendant Thomas is black. Before the selection of the jury began, defense counsel looked at the. jurors and moved to quash the panel on the ground that it appeared to be 80% white; he said that the ratio of only 20% black was not a fair representation of the black population in the county. The court overruled the motion, because no supporting proof was offered. Counsel then asked for a continuance to enable him to investigate the matter. That request was also denied.

No basis for a continuance was shown. There was no offer of proof, the motion being supported only by counsel’s observation of the assembled jurors. Counsel objected only to the make-up of “that panel,” because it appeared to be 20% black. There was no assertion of systematic exclusion of blacks from the jury, nor any suggestion by counsel that he wanted to investigate the possibility of systematic exclusion.

Our statutes now provide for the random selection of prospective jurors from the current list of registered voters. The procedure is set forth in detail in Ark. Stat. Ann. § 39-205.1 (Supp. 1985). The lists do not show the voter’s race. If the law is followed, as we must assume, there is no possibility of an intentional exclusion of blacks from jury panels. Counsel did not seek to investigate such a possibility. Instead, he requested an opportunity to show that the particular panel was not representative of the population. That showing, however, would not have supported the motion to quash the panel, for when the panel is drawn by chance a showing that its racial make-up does not correspond to that of the county does not in itself make a prima facie case of racial discrimination. Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975). The requested continuance was properly refused.

A second argument is that the court should have suppressed Thomas’s statement, which had been taken down by an interrogating officer and signed by Thomas. The police had already interviewed the prosecutrix when she reported the rape. She said, and later testified, that she had been in a washateria doing her laundry at about ten o’clock in the morning. A black man, whom she later identified as Thomas, came in and asked about how he could obtain drugs. She did not know. She had just drunk a Coke. The man offered to take the empty bottle back to the dispenser, which he did. When he came back inside, he walked over to her and asked if she had any children. She said she had one child. He then grabbed her and forced her to the floor despite her screams and attempts to escape. He pulled a knife, held it to her throat, and made her take off her pants. At that point she blacked out for about five minutes. When she regained consciousness, Thomas was having sexual intercourse with her. When he finished, he threatened to kill her if she told anyone, and left. After waiting a few minutes the prosecutrix went to her mother-in-law’s home and called the police.

Thomas was questioned on the following afternoon. At first he denied having been at the washateria or knowing anything about the matter. The officer then said that Thomas wouldn’t have to worry about it if he hadn’t been there, for they had a Coke bottle the perpetrator had had, and his fingerprints would be on it. Thomas became apprehensive and said he forgot about the Coke bottle. He admitted having been at the washateria and gave an account of the initial conversation similar to that the prosecutrix had given. Thomas said he had shown her the knife, but they had started holding hands, and she cooperated in the act of intercourse.

At the suppression hearing Thomas repudiated the incriminating parts of his statement. In his testimony he corroborated the statement’s detailed account of how he had gone to work at seven that morning, had quit his job, and had stopped at several specified places before going to the bathroom at the washateria. He denied ever having seen the prosecutrix at all. He corroborated the statement’s description of the route he took in walking home from the washateria.

Thomas testified that he had signed three statements during the interrogation, but the police had torn up the first two. He said the incriminating portion was not in the third statement when he signed it, though he admitted his signature. In effect he charged the officers had altered the statement either after he signed it or without his knowledge before he signed it.

Upon the totality of the proof we find that the trial court was right in holding the statement to be voluntary; The trial judge evidently concluded, as the jury must also have concluded, that Thomas had tailored his testimony to admit all the facts recited in the statement that were susceptible of being proved by third persons, but to deny what had happened during the comparatively short time when he and the prosecutrix were alone together. We hold that the written statement was properly received in' evidence.

A third argument is that the State’s proof was insufficient to support the conviction for rape. Overall, the prosecution presented a very strong case. The prosecutrix’s identification was positive, the crime having taken place in broad daylight. She was able, by cruising the neighborhood, to find her assailant and point him out to the police the very next day. A search of Thomas’s home, to which he consented, yielded clothing, a distinctive cap, and a knife, all similar to what the prosecutrix had described. Thomas’s own written statement described an act of sexual intercourse at the time and place fixed by the prosecuting witness.

In questioning the sufficiency of the evidence the appellant argues that the State failed to prove the required element of force, in that the prosecutrix blacked out and did not regain consciousness until the act of intercourse was in progress. The young woman, however, had already resisted to the extent of her ability. Her lapse into unconsciousness cannot be said to have amounted to consent.

Lastly, it is insisted that the court should not have permitted the prosecutrix to testify about the effect the event had had upon her marriage. The testimony that is objected to was brought out by the State’s attorney after the prosecutrix said that her marriage had been affected. The record continues:

Q. In what manner?
A. My husband had got to where he started beating on me. He couldn’t stand to be around me half the time.
Q. Did he get over what had happened to you?
A. No, sir.

We agree that the trial judge should have excluded the quoted testimony. It doubtless had some slight relevancy, as the State argues, but we think its probative .value was clearly outweighed by its possible prejudicial effect upon the jury.

Even so, we are not willing to order a new trial on the basis of the brief excerpt we have quoted. That excerpt comprises four typewritten lines in a record that exceeds 550 pages. The prosecutor made no effort to magnify the point in the eyes of the jury. To the contrary, his closing arguments are in the record; he did not mention the matter now in issue. We have followed the Supreme Court’s lead in adopting the view that when the evidence of guilt is overwhelming, an error even of constitutional proportions may be found to be harmless beyond a reasonable doubt. Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979). Here no constitutional issue is presented; the issue is one of judgment. The State’s proof was so strong, especially when presented more than five years after the crime was committed, that we are convinced that the cause of justice would not be served by the granting of a new trial.

We have reviewed the case with care and find no reversible error in the points that are argued or in any of the other objections presented in the court below.

Affirmed.

Purtle, J., not participating.


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    Rennard L. YUTTERMAN v. Gail WILLIAMS, et al.
    86-15
    709 S.W.2d 86
    Supreme Court of Arkansas
    Opinion delivered May 19, 1986

      Pryor, Robinson & Barry, for appellant.

      Person & VanWinkle, by: John R. VanWinkle, for appellees.
   George Rose Smith, Justice.

This action for personal injuries and property damage arises from a collision between cars being driven by one of the plaintiffs, Gail Williams, and by the defendant, Rennard Yutterman. Mrs. Williams’s passenger was also a plaintiff. Each driver claimed damages against the other. The jury’s verdict for $4,768.71 was in favor of the defendant Yutterman on his counterclaim. The trial judge granted the plaintiffs’ motion for a new trial, finding the verdict to be clearly against the preponderance of the evidence. Civil Procedure Rule 59(a)(6); Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982). The only question is whether the trial judge’s action was an abuse of discretion. Our jurisdiction is under Rule 29(l)(o). We affirm.

Mrs. Williams testified that she was driving west on Race Track Road near Pocola, Okla., where the plaintiffs lived. The race track area and a parking lot were on the righthand side of the road. Driving at about 25 miles an hour, Mrs. Williams was approaching a lane or driveway that comes out of the parking lot to the road. There was a stop sign for drivers entering the road from the parking lot. Mrs. Williams saw Yutterman pulling out of the lane when she was about 25 or 30 feet from him. She said she put on her brakes and just slid right into him. She said that at the last minute he was in her lane; so “at the last minute I jerked my wheels to the left,” hoping to avoid him. She testified that within seconds after the collision the Pocola police were there.

An investigating police officer testified that Mrs. Williams’s car made 30 feet of skid marks to the point of impact. The skid marks were in her lane until they veered slightly to the left up to the impact. The skid marks were over the middle line for the last 5 or 10 feet. The officer said Yutterman left no skid marks, only scuff marks that were left when her vehicle pushed him. The officer said the point of impact was just left of center, with most of the debris being in Mrs. Williams’s (westbound) lane. Another witness, Jerry Lee, had been just behind Yutterman in the driveway. He said that Yutterman didn’t see the stop sign and didn’t stop; he just pulled right out in front of Mrs. Williams’s car, “throwing gravel everywhere.”

Yutterman, who lives at Alma, testified that he did stop at the stop sign and looked both ways. He said Mrs. Williams’s car was 100 or 150 feet away, though in a deposition he had said 4 or 5 car lengths. He said he pulled out into the road and was entirely in his eastbound lane when the collision occurred. Even though Yutterman’s testimony was apparently accepted by the jury, it is so much at variance with the skid marks and with the testimony of Mrs. Williams, the two officers, and Lee that the trial judge did not act improvidently or abuse his discretion in finding that the verdict was clearly against the preponderance of the evidence.

Affirmed.

Purtle, J., not participating.