text:
    Larry CHAMBERS v. STATE of Arkansas
    CR 78-79
    571 S.W. 2d 79
    Opinion delivered October 2, 1978
    (Division I)

      Jesse E. (Rusty) Porter, Jr., for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is a petition for post-conviction relief under Criminal Procedure Rule 37. The petitioner alleged, among other things, ineffective assistance of counsel as a ground for withdrawing his plea of guilty. After an evidentiary hearing the trial court denied the petition.

At the evidentiary hearing Chambers’s present counsel, who was appointed, asked that the witnesses be excluded from the courtroom, as required by the statutes. Ark. Stat. Ann. § 43-2021 (Repl. 1977); Uniform Rules of Evidence, Rule 615, Ark. Stat. Ann. § 28-1001 (Supp. 1977). Mike Etoch, as retained counsel, had represented Chambers when he first pleaded not guilty and when he changed his plea to guilty. Mr. Etoch was a prospective witness at the hearing, but the court refused to exclude him, on the ground that the allegations of ineffective assistance of counsel had in effect made him a party to the proceeding.

The court was mistaken in its ruling. The older statute, § 43-2021, states that the judge “shall” exclude the witnesses. It is mandatory. Vaughn v. State, 252 Ark. 505, 479 S.W. 2d 873 (1972). If the Uniform Rule of Evidence has superseded the earlier statute, it too uses the word “shall” and must also be construed to be mandatory. Mr. Etoch was present as a prospective witness, not as a party. The court’s ruling that he was in effect a party seems to imply that he might have some bias or personal interest in the proceeding. We do not detect anything of the kind in his testimony, but if any such feeling existed it would be all the more reason for his exclusion. The statutes are designed to minimize the effects of partiality on the part of witnesses.

The State argues that Mr. Etoch’s presence during the hearing was proper under Uniform Rule 615, which excepts from exclusion “a person whose presence is shown by a party tobe essential to the presentation of his cause.” The exception is said to contemplate “such persons as an agent who handled the transaction being litigated or an expert needed to advise counsel in the management of the litigation.” 28 USCA, Federal Rules of Evidence, Rule 615, Notes of Advisory Committee (1975). Mr. Etoch did not fall in either category. He was present simply as a witness, not as a sort of co-counsel for the State to defend against the assertions of his former client.

We also find by the weight of the evidence that there was in fact ineffective assistance of counsel. The charges of burglary and theft were filed against the appellant, Larry Chambers, against his brother, Danny Chambers, and against a third defendant, James Cooper. Mr. Etoch was first employe'll as paid counsel by the father of the Chambers brothers. When it developed that young Cooper was indigent, Mr. Etoch was appointed to defend him as well.

A postoffice had been burglarized. Mr. Etoch testified at the hearing below that the State had a strong case against Danny Chambers and Cooper. Their fingerprints had been found inside the postoffice, and they had confessed. The State had “a cinch conviction” against them. Larry, however, had made no statement, and his fingerprints were not found inside the postoffice. “However,” according to Mr. Etoch, “the other two boys in their confession had given them full information that Larry was with them, sitting in the car, etc., and things.”

The two who confessed had no criminal record. Larry had shot a police officer and was on parole after having served six years in prison. According to Mr. Etoch, the sheriff’s office offered to give Danny and Cooper suspended sentences if they would turn state’s evidence against Larry. Mr. Etoch, in view of the conflict of interest, discussed the matter at length with Larry’s father and with Larry. He explained that he was willing to represent either brother at a trial, but he could not continue to represent all three defendants unless they pleaded guilty. The discussions eventually led to pleas of guilty by all three.

We have no doubt at all about Larry’s having been entitled to independent counsel. The duty of a lawyer in Mr. Etoch’s position is clearly stated in the ABA Standards Relating To the Defense Function, § 3.5 (b) (1971):

Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another. The potential for conflict of interest in representing multiple defendants is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation.

See also the Code of Professional Responsibility, Canon 5 (1975).

We do not consider it to be material that Mr. Etoch was serving as paid counsel rather than by appointment. We have applied our standard of professional competency to non-appointed counsel. Kerr v. State, 256 Ark. 738, 512 S.W. 2d 13 (1974), cert. den. 419 U.S. 1110 (1975). Nor does it matter that all the clients knew about the joint representation, a circumstance that does not appear to have existed in two somewhat similar cases. Randazzo v. United States, 339 F. 2d 79 (5th Cir. 1964); Porter v. United States, 298 F. 2d 461 (5th Cir. 1962). The controlling and inescapable fact is that it was necessarily impossible for Mr. Etoch to give sound disinterested counsel to every one of three clients whose best interests were in direct and irreconcilable conflict. The absolute necessity for independent counsel was so clear-cut that Larry’s plea of guilty cannot be allowed to stand. Cf. Holloway v. Arkansas, 98 S. Ct. 1173 (1978).

Reversed and remanded for further proceedings.

We agree.

Harris, C.J., and Holt and Hickman, JJ.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Alvin MAYES v. STATE of Arkansas
    CR 78-60
    571 S.W. 2d 420
    Opinion delivered October 2, 1978
    (In Banc)

      Raymond. R. Roberts, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Alvin Mayes was found guilty of the crime of forgery in violation of Ark. Stat. Ann. § 41-2302 (Repl. 1977) in a trial before the Circuit Court of Saline County, without a jury. The charge was based upon the presentation of a check to a Ms. Cash, the cashier at a check-out counter in West’s Department Store in Benton. Mayes was arrested by Benton Police Officer Barnes after he had been given a description of the person presenting the check by Ms. Cash and Mr. Gabon, the manager of the store. Appellant urges three points for reversal. We find it necessary to reverse the judgment because of the admission of a confession by appellant into evidence.

Among other contentions made by appellant, he argues that after he had indicated that he wanted to remain silent, the police officers having him in custody persisted in questioning him, without giving him any warnings of his constitutional rights as to self-incrimination and the assistance of counsel. The undisputed evidence sustains this argument. Officer Barnes testified that, after the arrest, he had interviewed Mayes about his possession of certain checks, among which was the one on which the charge in this case was based. Barnes stated that he had given a full explanation to Mayes of his rights under the Miranda decision and that, although Mayes had been drinking, he not only expressed an understanding of the rights statement but also exhibited an ability to understand it. He could not remember Mayes having said that he wanted to call a lawyer, but admitted that it was possible that he might have. More importantly, however, a written statement was given by Mayes at 3:38 p.m., after interrogation off and on by Barnes, following the advice given Mayes as to constitutional rights some five hours earlier. Mayes indicated when the questioning first started that he didn’t want to talk to Barnes, but Barnes and other officers continued questioning him during several interviews without any further advice as to his constitutional rights. This was a clear violation of the mandate of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Webb v. State, 258 Ark. 96, 522 S.W. 2d 406. The finding of the trial judge to the contrary was clearly against the preponderance of the evidence.

We must consider other points relied upon by appellant because they will probably arise on a new trial. We find no merit in appellant’s contention that the trial court erred in allowing the in-court identification of him by Ms. Cash as the person who presented the check. He also objects to her having been permitted to. refer to an out-of-court identification made by her. This argument is based upon the contention that her identification testimony was tainted by improper pretrial identification procedures and that his arrest without a warrant was without probable cause.

The arresting officer was Barnes. He had come into the store in response to a report to the police department by Galion, to whom Ms. Cash had taken the check when it was presented, as she was required to do whenever a check was presented. Barnes arrived a little more than ten minutes after the report was made. Barnes testified that Ms. Cash and Mr. Galion told him that the person who presented the check was a black man wearing a dark coat and bright pink britches. As soon as Barnes heard this description, he recalled having met a black man so dressed as he entered the store. Barnes immediately left in search of this man. At the Wal-Mart parking lot about eight or ten blocks from the West store, he found Mayes, dressed according to the description given him. This occurred within five minutes after Barnes had seen the man leaving West’s store. Since he wanted to be certain he had the right person before taking him to the police station, Barnes took Mayes back to the store, arriving there within ten minutes after he had made the arrest. Both witnesses viewed Mayes as he stood outside a police automobile and identified him, without hesitancy or confusion, as the man who had presented the check.

Ms. Cash’s identification of Mayes in the courtroom was positive and unequivocal. She said that she had gotten a pretty good look at the face of the person who offered the check and then had an opportunity to note the clothing he wore and his size and race, adding that he was only two feet from her, across the check-out counter. She said that, when she was given the check, she observed the person who handed it to her for 15 to 30 seconds and that he remained at the counter for about two minutes. She said that, when the officers asked her to view the suspect they had in custody, she went outside the store, looked at the man from a distance of about 30 feet and that she was certain that the man she then saw was the man who had given her the check.

Appellant argues that, essentially, Ms. Cash, a white woman, only identified a black man and that, according to an article published by a psychology professor at the University of Tulsa, identification of members of one race by one of another race is particularly unreliable. He also suggests that Ms. Cash’s identification testimony was further tainted because she had seen Mayes at a previous hearing. Ms. Cash positively denied that she had, on any occasion, identified Mayes simply on the basis that he was a black man and stated that she was certain of his identification at the previous hearing.

Many factors are to be considered in determining whether an in-court identification is tainted by pretrial occurrences. Among them are: the opportunity of the witness to observe the criminal act and the perpetrator of it at the time; the existence of discrepancies in pre-confrontation descriptions and the accused’s actual description; any pretrial misidentification; lapse of time between the alleged criminal act and any lineup or “show-up” identification; the facts disclosed concerning a “show-up” or lineup, and the certainty of the identification of the accused by the witness. Hinton v. State, 260 Ark. 42, 537 S.W. 2d 800; Sims v. State, 258 Ark. 940, 530 S.W. 2d 182; Warren v. State, 261 Ark. 173, 547 S.W. 2d 392; McCraw v. State, 262 Ark. 707, 561 S.W. 2d 71. The central question is whether, viewing the totality of the circumstances, the courtroom identification was reliable, even if the “show-up” procedure was unduly suggestive, and we must resolve any questions of credibility as the trial judge did. Hinton v. State, supra; McCraw v. State, supra. It is only when we can say, after viewing the totality of the circumstances pertaining to an in-court identification, that it was patently unreliable that we hold the identification inadmissible as a matter of law. Synoground v. State, 260 Ark. 756, 543 S.W. 2d 935.

When we view the totality of the circumstances here, we cannot say that the trial judge erred in finding it sufficiently reliable to be admitted in evidence and the question of reliability then became one for the trier of fact. See Synoground v. State, supra. We cannot say that it did not constitute substantial evidence that Mayes was the person who presented the check.

Although we are convinced that Barnes had probable cause to arrest Mayes, this factor would not be of any importance if Ms. Cash’s in-court identification was,not tainted by her viewing appellant within a few minutes after that arrest. See Wright v. State, 258 Ark. 651, 528 S.W. 2d 905. So we need not consider probable cause.

A more important question is raised by appellant’s contention that the evidence was insufficient to support the finding that he was guilty of uttering. The reason given by appellant in stating this point is that the court had ruled as a matter of law that there was no evidence of forgery and had, according to appellant, actually acquitted appellant of the crime of forgery. This was not the exact effect of that which took place in the trial court. At the conclusion of the state’s evidence, the trial judge denied appellant’s motion for a verdict of acquittal, but when his attorneys protested that there had not been any evidence of forgery, the judge stated that he would grant that motion. Appellant’s attorney then stated: “If there is no forgery, I do not see how there could be any possession” and the judge responded: “I think uttering would be included in the charge of forgery.” When appellant’s attorney argued that appellant had been charged with possession, not uttering, the judge agreed with the deputy prosecuting attorney’s statement that possession of a forged instrument and uttering were offenses of exactly the same grade defined exactly by the same statute in the language of one sentence, and that they were the same offense under the statute mentioned in the information filed and that it was inconceivable that appellant could have uttered something that he did not possess immediately theretofore. Appellant’s attorney then asserted that the check was only a piece of paper and amounted to nothing because the check bore no signature. After some additional colloquy among the judge and counsel, the circuit judge stated that he still considered uttering as a lesser charge than forgery, explaining that he was saying that uttering was included in the offense, which had been labelled forgery. Appellant then rested, without offering any testimony, and then renewed his motion. The court then found appellant guilty of uttering an instrument and sentenced him to three years in the penitentiary.

We agree with the trial judge in principle, and, even though appellant’s contentions might have been meritorious prior to the adoption of the Arkansas Criminal Code, they are not well taken under the statute now applicable. That statute is Ark. Stat. Ann. § 41-2302 (Repl. 1977). The crime of forgery is much broader in scope than under previous statutes and the crimes previously known as forgery and uttering, formerly held to be separate offenses, are now included under the broad category of “forgery.” Consequently, when the state charged appellant with forgery, the charge was broad enough to cover the crimes previously known as forgery, uttering and possession of a forged instrument. See Commentary, § 41-2302. Any of these acts constitutes the single crime of forgery. See State v. Morse, 38 Wash. 2d 927, 234 P. 2d 478 (1951). Under the statute, one forges a written instrument if with purpose to defraud, he draws, makes, completes, counterfeits, possesses or utters a written instrument that purports to be or is calculated to become, or to represent if completed, the act of a person who did not authorize the act. Sec. 41-2302 (1).

One commits forgery in the second degree if he forges a written instrument that is a check. He also commits forgery if he forges a written instrument that does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status. As we interpret the trial judge’s statements, he properly applied the statute and held that the evidence was not sufficient to show that appellant had drawn, made, completed, altered or counterfeited the instrument presented, but that it did show that he had uttered it. The meaning of the word “utter” in the applicable section is broad enough to cover the delivery, or attempted delivery, of a written instrument to another person. Ark. Stat. Ann. § 41-2301 (Repl. 1977).

There are certain elements of the crime which were shown beyond any doubt by the undisputed evidence. The person who presented the check delivered or attempted to deliver it to Ms. Cash. The intent to defraud was clearly shown by the actions of this person who appeared in the check-out line with certain merchandise, presented the check and, after Ms. Cash took the check to the store manager, left the store before she returned.

Appellant argues, however, that there was no evidence the instrument was forged or that he knew that it was forged, and states, without argument or citation of authority, that the check lacks legal efficacy, because it did not bear a drawer’s signature. There was clearly sufficient evidence that the instrument had been forged. If the identification of appellant as Alvin Mayes was sufficient, he was certainly not Phillip Watson, who was named as payee in the check. Mayes never claimed to be Phillip Watson after he was arrested. Officer Barnes obtained information from the person he arrested as to his name and date of birth. Barnes checked this information through the National Crime Information Center and the identity of Mayes was confirmed. The address of the payee was shown on the face of the check as 2722 Cross, Little Rock, Arkansas 72206. Oddly enough, the endorsement included the street address and a telephone number, apparently in the same handwriting as the signature. The officers were unable to locate a Phillip Watson, although they enlisted the assistance of the Little Rock Police Department and the telephone company. The name of Phillip Watson was the only one endorsed on the check. The conclusion that Phillip Watson was a fictitious person was not unwarranted. The fact that the person who presented the check left without its being honored or returned to him is also significant, particularly in view of the fact that no accusation had been made, as showing consciousness of guilt. People v. Jones, 210 Cal. App. 2d 805, 27 Cal. Rptr. 35 (1962). The evidence may not be as fully developed as it might have been, and it is not conclusive or overwhelming, but we cannot say that there is no substantial evidence that the instrument was forged, as the crime is defined. An instrument may be forged by signing the name of a fictitious person. Moore v. State, 241 Ark. 335, 407 S.W. 2d 744. Actually, possession of a forged instrument by one who offers or seeks to utter it without any reasonable explanation of the manner in which he acquired it warrants an inference that the possessor committed the forgery or was a guilty accessory to its commission. State v. Phillips, 127 Mont. 381, 264 P. 2d 1009 (1953).

The questions raised as to the legal efficacy of the check can better be understood by reference to it, so it is reproduced as an appendix to this opinion. Appellant’s argument is addressed to the lack of any handwritten or facsimile signature under the printed name of the drawer, Adco Realty Company. Appellant does not argue that this check is not a written instrument under the statute, but this has been suggested during our deliberations. The definition of “written instrument,” for the purpose of the applicable statute, is “any paper, document or other material containing written or printed matter or its equivalent.” Ark. Stat. Ann. § 41-2301 (9) (Repl. 1977). The remaining language of that subsection is not a limitation on the quoted language. The additional language, “and shall include any money, token, stamp, seal, badge, trademark or other evidence or symbol of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of any person” does not purport to be an exclusive enumeration of written instruments or to limit the words first quoted. If anything, it broadens the scope of the definition rather than narrow it. Thus, nothing in the definition of “written instrument” excludes this check. Furthermore, a check need not be negotiable in order to come within the purview of the act, and it is recognized that not all checks are negotiable instruments. Ark. Stat. Ann. § 85-3-104 (3) (Add. 1961). A check is simply “a written order directing a bank or banker to pay money as therein stated.” Webster’s New International Dictionary (2d Ed.); Webster’s Third New International Dictionary. See also, Hunt v. State, 72 Ark. 241, 79 S.W. 769; Bradford v. Reid, 202 Ark. 108, 149 S.W. 2d 51. A bank check has been defined as a written order or request, addressed to a bank or persons carrying on the business of banking, by a party having money in their hands, desiring them to pay on presentment, to a person therein named or bearer, or to such person or order, a named sum of money. Keese v. State, 223 Ark. 261, 265 S.W. 2d 542.

The printing of a name where a signature should appear is a sufficient signature, if it is intended as such. Ragge v. Bryan, 249 Ark. 164, 458 S.W. 2d 403; Leach v. Bald Knob State Bank, 163 Ark. 91, 259 S.W. 3. Furthermore, a party may use a firm name as a signature. Walker v. Emrich, 212 Ark. 598, 206 S.W. 2d 769. So it cannot be said that the check was without a signature. Even if it is not a check, it is certainly a written instrument that may evidence, create, transfer or otherwise affect a legal right, interest or status. Had the cashier or manager accepted the check, the West company, the bank on which it was drawn or Adco Realty Company would or might have suffered a loss and might have had a legal right, interest or status affected. The ultimate impact of the loss would depend upon the point at which the infirmity of the instrument was detected. Furthermore, even if we say that this instrument is not a check because the drawer’s signature is only printed, it certainly is a paper, document or other material containing written or printed matter or its equivalent, that purports to be or is calculated to become or to represent if completed, the act of a person who did not authorize the act. This is all that is required.

Although the question of apparent legal efficacy may have been pertinent under previous law, the matter is at least doubtful under our earlier decisions. See Van Horne v. State, 5 Ark. 349; Brashears v. State, 203 Ark. 1014, 160 S.W. 2d 505. Regardless of the requirement under the law prior to the adoption of § 41-2302, this is not a requirement under that section. The delivery, or attempted delivery, of a paper, document or other material containing written or printed matter or its equivalent that purports to be or is calculated to become, or to represent if completed, the act of a person who did not authorize the act and that may evidence, create, transfer or otherwise affect a legal right, interest, or status constitutes uttering under that section. It is clear that the concept of the crime is a much broader one than it was under prior law. This statute brings our law into harmony with case law on the subject in other jurisdictions.

The California Supreme Court early took the position that the essential ingredients of forgery were: (1) a false making of some instrument; (2) a fraudulent intent; (3) if genuine, it would be sufficient to form the basis of a legal liability. People v. Munroe, 100 Cal. 664, 35 P. 2d 326, 24 LRA 33 (1893). The California court then said that the requirements of the statute did not demand its earlier construction and that its adoption would result in the escape from justice of many criminals. The potential for loss by voluntary payment by some innocent person was noted and the fact that the forged paper was such as might defraud another was emphasized by the court. This action has been followed in California ever since. In People v. Brown, 101 Cal. App. 2d 740, 226 P. 2d 647 (1959), it was said that it is sufficient that the instrument may possibly deceive another and that it was prepared with intent to deceive and defraud another. It is now uniformly recognized in that state that the mere fact that an instrument is legally unenforceable is not a defense so long as upon its face it may have the effect of defrauding one who acts upon it as genuine. People v. Jones, 210 Cal. App. 2d 805, 27 Cal. Rptr. 35 (1962). The real intent of statutes such as ours was well stated in the case just cited, viz:

The purpose of the statute against forgery is to protect society against the fabrication, falsification and the uttering of instruments which might be acted upon as being genuine. The law should protect, in this respect, the members of the community who may be ignorant or gullible as well as those who are cautious and aware of the legal requirements of a genuine instrument. An instrument is not the subject matter of forgery only where it is so defective on its face that, as a matter of law, it is not capable of defrauding anyone. The instrument which was uttered by defendant in this case might on its face have easily defrauded someone. In fact, it would have been legally enforceable in its incomplete state if, as it represented, there was in fact an underlying debt. [Emphasis ours.]

That there are writings which could not possibly operate to defraud anyone and thus do not come within the purview of forgery statutes is recognized in California and the appropriate distinction is made. In re Parker, 57 Cal. App. 2d 388, 134 P. 2d 302 (1943) involved an attack on a forgery conviction on habeas corpus. In treating this matter, the court said :

Perhaps the force of a charge of forgery might be thus completely overcome, even on habeas corpus, if the paper charged as having been forged were one which could not, by any possibility, operate to defraud anyone; e.g. a purely social letter, or a merely libelous letter *** on the theory that the pleading totally failed to charge an offense known to the law. It is not necessary, however, that the forged writing create a valid and legally enforceable obligation in order to constitute the making of it a forgery. *** It is sufficient that it might possibly deceive another and was prepared with intent to deceive and defraud another. *** [Citations omitted.]

The importance of the potential of the instrument as a vehicle for fraud as distinguished from legal efficacy was emphasized in that case, where the charge alleged that affidavits were forged. The court pointed out that it could not say that such an affidavit could not be used to defraud, but that it seemed that there were many ways in which they might be so used. At least one other jurisdiction having a statute like the California statute has taken a similar view. See State v. Phillips, 127 Mont. 381, 264 P. 2d 1009 (1953).

A reading of our statute and the accompanying commentary clearly demonstrates that it was the intention of the drafters of our statute to broaden the scope of the crime and to adopt that view of it expressed in the case law of California.

Another question raised indirectly arises from the fact that the crime of forgery was characterized in the information as possession of the forged instrument and not the uttering of it. We do not consider that there was a fatal variance, but it appears that the evidence would have sustained the crime either as possession or uttering. The remarks of the prosecuting attorney were appropriate. They, and the action of the trial court, were correct. Any doubt about the matter is removed by the reason given by the drafters for foreclosing the possibility of separate convictions for forgery, possession and uttering, contrary to preexisting law. In the commentary to this section, they took the view that forgery and the possession of forged instruments were preparatory offenses to uttering. Obviously, this was the view taken by the trial court.

The judgment is reversed and the cause remanded.

APPENDIX

(See Reverse Side)

       The California statute quoted in the opinion described the offense much more narrowly than our present statute does. Its language is more like that of our previous forgery statute.


author: John A. Fogleman, Justice. Darrell Hickman, Justice,

text:
    Duane LEEPER v. STATE of Arkansas
    CR 78-91
    571 S.W. 2d 580
    Opinion delivered October 2, 1978
    (In Banc)
    [Rehearing denied November 6, 1978.]

      Robert L. Shaw, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

On November 1, 1977, the prosecuting attorney for the Ninth Judicial District, acting by his deputy, filed a petition to revoke the suspension of a sentence imposed upon appellant Duane Leeper on a charge of possession of intoxicating liquor for sale in a dry county. The sentence had been imposed on a charge alleging that the offense was the third one by Leeper. The sentence was for a term of five years, but it was suspended, conditioned upon Leeper’s good behavior and the payment of a $5,000 fine and all costs. It was alleged in the petition for revocation that Leeper had violated the terms and conditions of the suspension in that he had “sold alcoholic intoxicating beverages in a county, to-wit Sevier, where it is forbidden by law to do so, on October 31, 1977.” After a hearing, the suspension was revoked and Leeper was sentenced to a two-year term. The only point for reversal is:

AS A MATTER OF LAW ENTRAPMENT BY POLICE OFFICERS REQUIRES REVERSAL OF REVOCATION OF SUSPENDED SENTENCE.

In abstracting the testimony, appellant’s counsel states:

Witnesses for Appellant do not deny that he sold the whiskey to Trooper Carter so only that portion of their testimony related to the intoxicated condition of Appellant is abstracted.

In the conclusion of his brief, appellant asks that we reverse the judgment and dismiss the petition for revocation on the sole ground that there was entrapment as a matter of law. Thus, we must remember that there is one, and only one, question before us for appellate review, and disregard extraneous matters.

Assuming that entrapment is a defense to a petition to revoke a suspension of a sentence, we do not agree that there was entrapment as a matter of law. If the witnesses on behalf of the state are believed (and obviously the trial judge did believe them) there was no entrapment. The question was one of fact. See Peters v. State, 248 Ark. 134, 450 S.W. 2d 276; Clark v. State, 258 Ark. 490, 527 S.W. 2d 619. It was resolved against appellant.

In considering the question presented, it must be remembered that appellant bore the burden of proving entrapment by a preponderance of the evidence. Ark. Stat. Ann. §§ 41-110, -209 (1) (Repl. 1977). On appellate review, we must view the evidence in the light most favorable to the state. Cary v. State, 259 Ark. 510, 534 S.W. 2d 230; Cooper v. State, 246 Ark. 368, 438 S.W. 2d 681; Simmons v. State, 255 Ark. 82, 498 S.W. 2d 870. We could say that there was entrapment as a matter of law only if there was no factual issue to be resolved by the trial court, i.e., if there was no substantial evidence to the contrary, when the evidence is viewed as we must. Harris v. State, 262 Ark. 680, 561 S.W. 2d 69; Harmon v. State, 260 Ark. 665, 543 S.W. 2d 43; Williams v. State, 260 Ark. 457, 541 S.W. 2d 300; Burks v. State, 255 Ark. 23, 498 S.W. 2d 336.

The sale was made to Mike Carter, a trooper of the Arkansas State Police, who went to Leeper’s house with Joey Barnhill and Steve Clemmons. The purpose of the trip was to buy whiskey from Leeper. Carter had been employed by the state police just a week earlier and this was his first assignment. Carter, dressed in civilian clothes, walked up to the front door at Leeper’s house and told Leeper that he wanted some whiskey. Carter testified that he asked Leeper one time if he had whiskey for sale and said no more. He said that Leeper asked for his name twice, asked where he lived, expressed satisfaction with his looks, turned around and went into another room and came back with a pint bottle of whiskey, which he sold to Carter. Carter stated that he had handed Leeper $7, but Leeper had said that was too much and returned two one dollar bills.

Steve Clemmons, a state trooper, and Deputy Sheriff Barnhill had taken Carter to the Leeper house in Barnhill’s pickup truck. They had stopped about 50 feet from the front door of Leeper’s house. Clemmons said that he had heard Carter say, “I want a bottle of whiskey” and had seen Carter and Leeper go into the house and had seen Carter come out with a bottle of whiskey. Barnhill had heard Carter knock on Leeper’s door. He said that Carter had returned with a bottle of whiskey about five minutes after he had left Clemmons and Barnhill in front of the Leeper house.

The purpose of Carter’s trip to the Leeper house was to buy whiskey. Barnhill testified that he had heard that Leeper was selling whiskey. Sheriff Godwin also had information that Leeper was selling whiskey. The sheriff did not remember whether he or “his folks” had planned this attempted purchase. Carter testified that Leeper was intoxicated and described his condition. Carter admitted that he would have arrested Leeper if he had caught him on the road in that condition.

If the state’s version is accepted, there was no persuasion or inducement by Carter. He simply asked to buy whiskey. The only testimony relating to any inducement was given by Leeper and a woman who lived with him. They said that, when Carter asked if Leeper had a pint he would sell, Leeper said that they didn’t sell whiskey there, but, after Carter said that he was hurting for a drink and kept begging, Leeper got the one bottle he had for himself and the woman and let Carter have it. It would be impossible to say that appellant had established the defense of entrapment as a matter of law.

The present statute on the affirmative defense of entrapment [Ark. Stat. Ann. § 41-209 (Repl. 1977)] follows:

Entrapment occurs when a law enforcement officer or any person acting in cooperation with him, induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

According to the commentary, the statute simply asks the fact finder to consider the effect of the officer’s conduct on a hypothetical average citizen, rather than its effect on the particular defendant. The last sentence quoted above clearly recognizes that in order to enforce the law, officers must involve themselves in operations such as those engaged in here. The sheriff and his deputy had information that Leeper, already found guilty of a third offense, was still in business, in violation of the terms of his suspension. Leeper’s inspection and appraisal of Carter show clearly the difficulty persons known by Leeper to have connections with law enforcement would have encountered in obtaining evidence. The sheriff had a duty to see that the conditions of the suspension were kept. He spoke of the difficulty in obtaining testimony from Leeper’s customers. The suspension of sentence on a third conviction warranted an effort by the law enforcement officers to pursue rumors that Leeper was still in business. The method they used may well have been the only expedient one. We have previously recognized the difficulties in obtaining convictions for the unlawful sale of drugs without having testimony of a purchaser. Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913.

Appellant has never contended or argued that the trial court’s finding should be reversed on the question of preponderance of the evidence. This is actually the appropriate question in this case. Cogburn v. State, 264 Ark. 173, 569 S.W. 2d 658. Since the question turns upon the credibility of the witnesses, we must defer to the superior position of the trial judge. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74; Whitmore v. State, 263 Ark. 419, 565 S.W. 2d 133. Thus, we could not even say that the finding of the trial court that appellant failed to meet his burden is clearly against the preponderance of the evidence.

The judgment is affirmed.

Hickman and Howard, JJ., dissent.

Darrell Hickman, Justice,

dissenting. This is a pitiful case; the defendant, Duane Leeper, is an alcoholic. The authorities, representing the state of Arkansas, induced Leeper, who was under a five year suspended sentence, to sell a pint of whiskey in a dry county.

The sheriff’s office, apparently on its own, decided to attempt to make a “buy” of intoxicating liquors from Leeper. Leeper had been on probation for two years and there was no credible evidence that Leeper had been selling whiskey during this period. The only evidence of such misconduct was the sheriff’s testimony that he had heard from one or more people that Leeper had been selling whiskey.

A young Arkansas State Policeman, who was apparently unknown in the community, was used to make the “buy.” It was his first assignment as a policeman. According to the trooper he went to Leeper’s residence and asked Leeper if he could purchase some whiskey. The trooper purchased a pint of whiskey for $5.00. The trooper testified there was no doubt that Leeper was drunk at the time and, in fact, said if he had seen Leeper on the street he would have arrested him for being drunk. The trooper did not fail in his first mission as an Arkansas State Policeman.

Leeper was not immediately arrested on the basis of this so-called “buy.” Instead, the next day a search warrant was issued and Leeper’s residence was searched. Apparently Leeper was drunk again, or still drunk, when his residence was searched. The only incriminating evidence found by the authorities during the search was one pint of whiskey; Leeper and another witness, a woman living with Leeper, testified it was for their personal use and not for sale. If the search had been conducted several hours later the pint produced from the search might not have been in evidence.

During cross examination, the sheriff was asked who the people were that told him of Leeper’s misconduct and why they were not present in court to testify. The sheriff said that these individuals wouldn’t swear in court to what they would swear to him in private. I suppose this means they would not tell the truth under oath.

At best, the state’s case can be described as flimsy.

The only evidence, then, of misconduct, was the so-called “buy” made by the trooper when Leeper was drunk. It was on this evidence alone that Leeper was ordered to spend two years in the Arkansas Department of Correction.

There are other considerations. About the only way to describe Arkansas liquor laws is that they are hypocritical. In most, if not all, dry counties there are one or more private clubs where individuals who can afford membership purchase and consume alcohol within the law. Across the street one who does the same thing, of course, violates the law.

Also, there is the factor that Leeper was an alcoholic, one who should be treated rather than punished. That is not to say that one who is an alcoholic, or drunk, should be exonerated for wrongful acts committed by them. They should not be; but neither should they be committed to the penitentiary simply because they are alcoholics or drunks. I cannot say in this case whether Leeper should have been sent to the penitentiary for selling whiskey or not. There is simply no credible evidence, that on his own, without encouragement by a law enforcement officer, he had any intention of selling whiskey or had ever violated his parole. I would not affirm the decision revoking the suspended sentence.

I am authorized to state Justice Howard joins me in this dissent.


author: Conley Byrd, Justice.

text:
    Ruth M. WOOD et al v. Murtha A. WOOD
    78-81
    571 S.W. 2d 84
    Opinion delivered October 2, 1978
    (Division II)

      Hardin, Jesson & Dawson, for appellants.

      Martin & Vater, for appellee.
   Conley Byrd, Justice.

Appellants, Ruth M. Wood, et al, the legal widow and adult children of Boyd Wood, deceased, brought this action against appellee Murtha A. Wood to declare their interest in the decedent’s home in Fort Smith and to recover the proceeds of certain Teamster Union benefits received by appellee. The trial court ruled that appellee took the home by right of survivorship and that none of the appellants were entitled to receive any of the Union benefits. From the summary judgment entered by the trial court appellants bring this appeal raising the issues hereinafter discussed.

The record shows that appellant Ruth M. Wood is in excess of 62 years of age and that the appellant children are all adults. An interlocutory decree of divorce was entered in the State of California on April 25, 1973, in an action wherein Boyd Wood was the petitioner and Ruth M. Wood was the respondent. That interlocutory decree incorporated therein a property settlement wherein appellant Ruth M. Wood released her right to participate in the estate of Boyd Wood. Subsequently, Boyd Wood and the appellee entered into a marriage ceremony in the State of Nevada. Later Boyd Wood and the appellee moved to Fort Smith, Arkansas and purchased a home taking title thereto as follows; to-wit:

“Boyd E. Wood and Murtha A. Wood, husband and wife, as tenants by entirety.”

Appellants admit that Boyd Wood caused appellee to be the designated beneficiary of the Union Benefits.

For purposes of this appeal we assume that appellants are correct in asserting that under the laws of California the interlocutory decree of divorce did not amount to a full and complete divorce and that the Nevada marriage to appellee is void — appellee admits as much.

Appellants take the position that because of Ark. Stat. Ann. § 50-411 (Repl. 1971), the conveyance to “Boyd E. Wood and Murtha A. Wood, husband and wife, as tenants by entirety” created a tenancy in common and not in joint tenancy with right of survivorship. In making this contention appellants place much emphasis on Arkansas’ strong public policy against bigamous marriages. Like the trial court we find the reasoning in Coleman v. Jackson, 286 F. 2d 98, 83 A.L.R. 2d 1043 (D.C. Cir. 1960), most persuasive. The court there pointed out that the crucial feature of a tenancy by the entirety was survivorship and where from the four corners of the instrument the court could interpret the intention of the parties as creating a survivorship estate, the court would deem it to be a joint tenancy with the right of survivorship. The deed here did not stop with describing the purchasers as husband and wife but went further and stated that they were to hold “as tenants by entirety. ” We also construe the deed as creating a joint tenancy with right of survivorship.

Neither do we find any merit in appellants’ contentions with respect to the Union Benefits. Appellants admit that appellee was the designated beneficiary thereof and the abstracted portions of the Union Benefit plans show that appellants had no vested interest.

Affirmed.

We agree: Harris, C.J., and Fogleman and Hickman, JJ.


author: Frank Holt, Justice.

text:
    Louis Sterling FRANK v. R. A. PICKENS & SON COMPANY et al
    78-58
    572 S.W. 2d 133
    Opinion delivered October 2, 1978
    (Division I)
    [Rehearing denied November 13, 1978.]

      Gill & Johnson, by: B. Kenneth Johnson, for appellant.

      Samuel N. Bird, of Williamson, Ball & Bird, for appellees.
   Frank Holt, Justice.

Appellant brought this action seeking an accounting and liquidation of the partnership affairs of appellee R. A. Pickens and Son Company, a farming partnership which leases and farms some 13,000 acres of land owned by another partnership, R. A. Pickens & Son. The partnership in question has existed in one form or another since 1925. Appellee R. A. Pickens has managed the firm since 1937. At the close of business on December 31, 1975, there were 22 partners of which R. A. Pickens & Son owned the largest interest, 31%. R. A. Pickens is not a partner in R. A. Pickens & Son Company but is a partner of R. A. Pickens & Son. Appellant employee was brought into the farming partnership on January 1, 1968, initially acquiring a 2% interest and eventually acquiring a total interest of 3%. His initial investment ($21,600) was made by giving his note to the partnership with the understanding that his share of the profits would apply to its payment. He remained an active partner until May 31, 1976, when appellee Pickens, as manager of the partnership, terminated appellant’s partnership interest and tendered him a check in the amount of $35,805.97. This sum represented 3% of the partnership capital account of $1,950,000 as of December 31, 1975, or $58,500 plus 10% interest on this amount from January 1, 1976, until May 31, 1976, less a $17,000 note and 5 months interest owed by appellant to the partnership and less $7,-706.53 owed by appellant to the partnership store account. Appellant refused to accept the check. That sum has, to date, been retained by the partnership as part of the partnership capital and carried on the books as a credit due appellant and a partnership liability. Appellant has had no active duties in the partnership affairs since May 31, 1976.

About a month thereafter, appellant filed a petition seeking an accounting of the partnership affairs, alleging that he had been wrongfully excluded. This petition was later amended to seek judicial dissolution and liquidation of the partnership assets. Appellees filed a counter-complaint seeking judicial recognition of the dissolution assertedly effected by appellee R. A. Pickens’ notification to appellant on May 31, 1976, of his election to dissolve the partnership, which was a partnership at will. The counter-complaint also alleged the existence of an oral agreement for the purchase and termination of an interest in the partnership. The purchase of an interest in the partnership was based upon book value. Upon termination or dissolution, the value of the outgoing partner’s interest was based upon the book value of such an interest as of December 31 of the year preceding such dissolution, plus 10% interest per annum from December 31 of that year to the date of dissolution. As previously indicated, appellees computed the amount due appellant at his partnership termination to be $35,805.97, after reduction of appellant’s indebtedness to the partnership.

The trial court found that a partnership existed between the parties; that appellant purchased his 3% interest at book value; that Pickens, as managing partner, had the contractual right to terminate appellant’s interest at will; that under the terms of the agreement appellant’s contractual interest at termination was 3% of the book value of the partnership, or $58,500 as of December 31, 1975; that termination occurred on May 31, 1976, and the 10% interest on that amount, as alleged in the counter-complaint, was not included within the proved contractual terms relating to the calculation of appellant’s partnership interest at termination; that appellant’s capital and services were used by the partnership until the date of his termination; and therefore he was entitled to $13,843.48 which was 5/12ths of his 3% interest of the net profit for 1976, plus interest. These amounts were to be reduced by appellant’s indebtedness to the partnership on his note and store account which were also ordered to bear interest.

Appellant contends that the court erred in not finding that he was entitled to a full share of the profits of the partnership so long as the partnership retained and used his capital contribution, the court erred in finding that R. A. Pickens had a contractual right to terminate appellant’s partnership interest and erred in not ordering a termination and winding up of the partnership affairs. As we understand the thrust of appellant’s argument, the Uniform Partnership Act is applicable here and therefore appellant has the right to a forced sale an'd liquidation of the partnership assets and his proper share of the net proceeds.

We first emphasize:

The business association that is known in the law as a partnership is not one that can be defined with precision. To the contrary, a partnership is a contractual relationship that may vary in form and substance in an almost infinite variety of ways.

Zajac v. Harris, 241 Ark. 737, 410 S.W. 2d 593 (1967). Further the Uniform Partnership Act provides that the rights and duties of parties are “subject to any agreement between” the partners. Ark. Stat. Ann. § 65-118 (Repl. 1966). The Act also contains a provision that “settling accounts” between partners after a dissolution shall be “subject to any agreement ....”§ 65-140. The partners here could agree, as the court found, that Pickens had exclusive control over the terms of admission and expulsion of the partners.

Pickens testified that appellant, upon becoming a partner, understood that he purchased his interest at book value. Upon leaving, he would be paid the book value and his status as a partner was dependent upon Pickens’ willingness for him to continue in that status. It appears undisputed that at the conclusion of each year Pickens conferred with each partner about their individual equity or earnings in the profit sharing venture.

Numerous past and present partners testified. According to them the understanding was they bought their interest in the partnership at book value. The length of their membership was at the will and pleasure of Pickens, the general manager, and upon leaving the company they would be paid at book value. Although appellant denies the oral agreement asserted by Pickens, he admits he acquired his interest at book value based upon a loan of the purchase funds to him by the company as evidenced by a note. Appellant is a college graduate with a business degree. It appears his duties as an employee with the partnership consisted of general office work and bookkeeping a short time before the acquisition of his interests and during the 8 1/2 years he was a partner. He was familiar with transactions at book value with respect to incoming and outgoing partners. As indicated, upon termination he refused a tender of payment of his interest.

Here the chancellor had the advantage of seeing and hearing the witnesses and at the same time study the exhibits to their testimony. We do not reverse a chancellor’s finding unless it is against the preponderance of the evidence. Here the chancellor’s finding is clearly supported by the preponderance of the evidence. Therefore, in view of the agreement, the Uniform Partnership Act is not applicable and consequently appellant cannot force a liquidation and sale of the appellee partnership.

Affirmed.

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


author: Darrell Hickman, Justice.

text:
    FARM BUREAU INSURANCE COMPANY v. Carl PALADINO
    78-82
    571 S.W. 2d 86
    Opinion delivered October 2, 1978
    (Division II)

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellant.

      Joe Cambiano, for appellee.
   Darrell Hickman, Justice.

Carl Paladino’s barn burned and he sued his insurance company, Farm Bureau, in the Conway County Circuit Court for the $8,000.00 coverage Farm Bureau had on his barn.

There was no dispute over the fire loss of the barn nor the coverage. The dispute was whether Farm Bureau had good cause for not paying the claim within sixty days of proof of loss.

The trial judge found that Farm Bureau had no good cause for not paying the claim within sixty days and entered judgment for $8,000.00, plus 12% penalty, an attorney’s fee of $2,640.00, and 6% interest on the $8,000.00 from the date of the fire loss.

We only need examine one allegation of error by Farm Bureau on appeal: whether Paladino was entitled to an attorney’s fee and the 12% penalty pursuant to Ark. Stat. Ann. § 66-3238 (Repl. 1966). We hold he was not and modify the judgment accordingly.

Paladino, in his complaint against Farm Bureau, asked for the $8,000.00 policy limits, a 12% penalty, attorney’s fee, and interest from the date of the loss. The court awarded $8,-000.00, a penalty, an attorney’s fee, and $238.67 as interest computed from the date of the loss. Paladino concedes on appeal that the interest should have been calculated from 60 days after the filing of the proof of loss and should be reduced to interest for 19 days for a total of $25.27. Interest may only be awarded from the expiration of the period of time allowed the company in the loss payable clause of a policy to investigate, consider and pay a claim — in this case sixty days after the proof of loss.

We have consistently held that the 12% penalty and attorney’s fee, as provided for in Ark. Stat. Ann. § 66-3238 (Repl. 1966), can only be awarded when the exact amount sued for is recovered. Ford Life Insurance Co., et al v. Jones, 262 Ark. 881, 563 S.W. 2d 399 (1978); Southwestern Ins. Co. v. Camp, 253 Ark. 886, 489 S.W. 2d 498 (1973).

Since Paladino sued for and obtained judgment in excess of a legal amount, the court erroneously awarded the penalty and attorney’s fee.

Therefore, the judgment is modified to $8,000.00, plus interest from the correct date and costs.

Affirmed as modified.

We agree.

Harris, C.J., and Fogleman and Byrd, JJ.


author: George Howard, Jr., Justice.

text:
    Cecil HILL and Chris HILL v. STATE of Arkansas
    CR 78-88
    571 S.W. 2d 228
    Opinion delivered October 2, 1978
    (Division I)

      Gene Worsham, for appellants.

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Justice.

Appellants were charged by information with two counts of the offense of keeping a gaming device under Ark. Stat. Ann. § 41-3253 and § 41-3254 (Repl. 1977) which make it unlawful to: “. . . set up, keep, or exhibit any gaming table or gambling device ... of the like or similar kind, or of any other description although not herein named . . . devised or designed for the purpose of playing any game of chance, or at which any money or property may be won or lost.”

Appellants were tried to a jury and pursuant to a verdict of guilty on each count against the appellants, Cecil Hill was assessed a fine of $1,000.00 and imprisonment for one year on each count to run concurrently; and a fine of $1,000.00 and imprisonment for one year were also imposed on Chris Hill, to run concurrently.

For reversal of their convictions, appellants have alleged the following grounds:

1. The court erred in denying appellants’ motion for directed verdict.
2. Intimidation of defense witness constituted a denial of due process.
3. The trial court erred in failing to declare a mistrial after the prosecuting attorney in his final argument referred to the appellants as “these cheaters,” “outsiders,” and in alluding to the defendants’ failure to take the stand or testify in their own defense.

We are persuaded that the trial court erred in denying the motion of Chris Hill for a directed verdict, at the close of the State’s case, inasmuch as the record before us fails to show that Chris Hill had an interest in either the alleged gambling devices in question or an interest in the house from which the devices were obtained by officers pursuant to a search warrant. Accordingly, we reverse the action below as it relates to Chris Hill.

We are persuaded, from a careful review of the record before us, that no error was committed relative to Cecil Hill. Consequently, we affirm the action below as far as Cecil Hill is concerned.

Cecil Hill has argued that the trial court committed error in denying his motion for a directed verdict at the close of the State’s case. However, it is clear from this record that pursuant to a search warrant authorizing the Federal Bureau of Investigation and local law enforcement officers to search a residence located on Lake Hamilton in Garland County, which was owned by Cecil Hill and under his auspices at the time, officers took possession of a “Honey” amusement-type pinball machine designed for the purpose of effecting the play of a game of chance; a “Juice Joint” also designed for the purpose of effecting the play of a game of chance; and other gambling paraphernalia, including playing cards and dice.

Special Agent Richard T. Lind, of the Federal Bureau of Investigation, whose specialty is the examination of items of gambling paraphernalia, testified that the playing cards had been marked with some type of invisible substance and when viewed with ultra violet light, the marks became visible. In addition, this witness testified that a person with astigmatism who wears glasses could identify the cards, while an average person might not. Furthermore, Special Agent Lind testified that a person in a position to identify the cards would have an advantage over another in a game of chance.

Special Agent Lind also testified that the dice confiscated were made of cellulose and this would indicate some type of metallic substance within the dice and, as a consequence, the dice are attracted to magnets, also confiscated, that are activated by depressing a button. While Special Agent Lind did not know whether this device functioned, for he had not had a chance to operate it, he concluded that this mechanism would increase the percentage that the operator of the house had in a game of chance.

In addition, Special Agent Lind testified that he had examined the “Honey” pinball machine which can be manipulated by the garage door opener, also confiscated from appellant’s home, which sends a signal, when pressed, to a receiver located in the pinball machine which is hooked to the scoring mechanism. The device can arbitrarily advance the score without taking into account the position or movement of the steel balls on the playing surface of the machine.

Dr. Thomas E. Bell testified that he had been invited to the lake house of Cecil Hill and was further invited to participate in a “crap game. ” Dr. Bell stated that he lost $300.00 in this game which was participated in by Cecil Hill and others. During the course of the evening, Dr. Bell lost an additional $6,000.00 which had been loaned to him by one of the participants in the game. Dr. Bell further testified that he lost an additional $500.00 later on when he was encouraged to go back to the lake home of the appellant to play “black jack” in an effort to recover his huge losses.

We are convinced that there was sufficient evidence to warrant the trial court’s action in submitting the case to the jury. Consequently, we find that the trial court did not err in denying appellant’s motion for a directed verdict. Moore v. State, 244 Ark. 1197, 429 S.W. 2d 122 (1968); Norton v. State, 260 Ark. 412, 540 S.W. 2d 588 (1976).

Appellant further argues that the trial court committed error in appointing an attorney for one Herbert Thomas Wright, who had been called by the defense as a witness, so that Mr. Wright might be advised of his constitutional rights. Mr. Wright had been contacted by defense counsel and it was stated that the witness would testify that he had broken into Cecil Hill’s home and installed the “juice joint” without the knowledge and approval of Cecil Hill. After the witness had consulted with counsel, the witness refused to answer the following question because it might tend to incriminate him:

“Q. I will ask you, then, if in that statement, did you admit that you installed a juice joint in the wall of Cecil Hill’s lake cottage and a unit in the pinball machine at said lake cottage without the consent of Cecil . . . ?

In support of his argument, appellant relies upon United States v. Smith, 478 F. 2d 976 (D.C. Cir. 1976), in asserting that the defense witness was intimidated into not testifying and that the conduct on the part of the court was tantamount to the suppression of evidence. We are not impressed with this argument inasmuch as the facts in United States v. Smith, supra, are not on all fours with the facts in the instant case. In Smith, the prosecuting attorney told the witness that if he took the witness stand, he might be prosecuted for an offense growing out of the situation in which the witness would testify about. Here, the trial judge took the initiative in seeing that the witness, who was an inmate at the Department of Correction, was advised of his constitutional rights by appointing counsel to consult with the witness.

Finally, appellant argues that during closing argument, the prosecuting attorney made the following statements:

“Have you heard any evidence to controvert the State’s?”
“Have you heard any evidence that would controvert a finding of guilty?”
“Now, if there was something wrong with what Agent Lind talked, what he professed to tell you about in his demonstration, I didn’t see any evidence coming from that stand and controverted, did you?”
“No, I didn’t hear any evidence to controvert his testimony.”
“I didn’t hear any testimony or see any evidence to controvert anything the State showed you. No, Mr. Hill didn’t start to gain, didn’t start to gain ...”
“I’m looking right at them when I tell them. I’m not embarrassed by it ... ”
“There is not one shred of evidence or testimony to controvert the guilt of Cecil B. Hill ...”

Appellant cites our recent case of Adams v. State, 263 Ark. 536 (1978) in support of his argument for reversal.

It is clear from the record that appellant made no objection to the remarks complained of at the time these remarks were uttered by the prosecuting attorney before, but came after the jury had retired to deliberate on its verdict and appellant requested the court to call the jury back into the courtroom in order to deal with this objection. It is plain that appellant’s objection came too late and we find that the trial court did not err in denying appellant’s request. An impropriety on the part of the State’s attorney during closing argument should be objected to promptly and a delay in registering an objection to such impropriety, as here, is fatal. Jones v. State, 248 Ark. 694, 453 S.W. 2d 403 (1970).

Reversed in part and affirmed in part.

We agree.

Harris, C.J., and George Rose Smith and Holt, JJ.


text:
    Phillip Lee AUSTIN v. STATE of Arkansas
    CR 78-100
    571 S.W. 2d 584
    Opinion delivered October 2, 1978
    (Division I)
    [Rehearing denied November 6, 1978.]

      Kenneth C. Coffelt, for appellant.

      Bill Clinton, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Justice.

This is an appeal from the trial court’s denial of appellant’s petition for post-conviction relief pursuant to Arkansas Rules of Criminal Procedure, Rule 37.

Appellant was charged by information on March 7, 1977, with the offense of first degree battery, in violation of Ark. Stat. Ann. § 41-1601 (Repl. 1977). Appellant was tried by a jury on June 30, 1977, and on a verdict of guilty, appellant was sentenced to six years in the Arkansas Department of Correction and was fined 11,000.00. A motion for a new trial was filed on July 7, 1977, wherein appellant alleged that he was innocent of the charge and attached to his motion for a new trial affidavits of Wendell Withers and Oria Austin, who had testified during the trial, and claimed in their affidavits that Wendell Withers shot the victim, Edmond Harris, and not the appellant. It is clear from the affidavits that these witnesses have renounced the testimony offered during the initial trial. As a matter of fact, during the trial, the witnesses essentially testified that they did not know who had shot the victim, Edmond Harris, but now, it seems, they are ready to come forth with the whole truth.

The motion for a new trial was heard on July 27, 1977, and was denied by the trial court. Appellant appealed to this Court and the judgment of the trial court was affirmed in an opinion not designated for publication on March 27, 1978.

On May 1, 1978, we granted appellant’s petition to proceed in the lower court under Arkansas Rules of Criminal Procedure, Rule 37. Accordingly, appellant’s petition was filed with the trial court on May 3, 1978.

On June 9, 1978, a hearing was conducted by the trial court and, after receiving testimony offered in support of appellant’s petition, the trial court denied the petition finding that appellant had received a fair and impartial trial at his initial trial.

It is plain from this record before us that the issues now presented in this petition for post-conviction relief are essentially the same issues raised in appellant’s motion for a new trial filed in the trial court on July 7, 1977, and reviewed by this Court on an appeal, from the trial court’s ruling, on March 27, 1978. In other words, appellant seeks a second review of issues which have already been accorded a full and final review by this Court as well as the trial court.

It is well settled that under Rule 37.2(b), issues finally adjudicated may not serve as a predicate for subsequent post-conviction petitions. We hasten to conclude that appellant is precluded from relitigating finally adjudicated issues.

Affirmed.

We agree.

Harris, C.J., and George Rose Smith and Holt, JJ.


author: PER CURIAM Conley Byrd, Justice,

text:
    Earnest Lee WADE v. STATE of Arkansas
    CR 78-143
    571 S.W. 2d 231
    October 2, 1978
    (In Banc)

      Petitioner, pro se.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren. Asst. Atty. Gen., for respondent.
   PER CURIAM

On June 18, 1974, petitioner was incarcerated in the penitentiary for a term of 15 years. On June 17, 1977, pursuant to an allegedly forged court order, petitioner was released from custody. On October 6, 1977, petitioner was returned to the custody of the Arkansas Department of Correction. On October 28, 1977, petitioner was charged by information in the Lincoln County Circuit Court with second degree escape and second degree forgery and in the Jefferson County Circuit Court with furnishing implement for escape. Petitioner states that he was notified of these charges by prison officials on November 1, 1977. Petitioner now has filed a pro se petition for writ of prohibition in this Court alleging that the Lincoln and Jefferson County Circuit Courts should be barred from prosecuting the above charges for failure to bring petitioner to trial within two terms of court, as provided for in Criminal Procedure Rule 28.1(a).

Prohibition is an extraordinary and discretionary writ and should be used cautiously. It should never be granted unless the petitioner is clearly entitled to relief and the court against which it is sought is wholly without jurisdiction. Ark. State Highway Comm’n v. Roberts, 248 Ark. 1005, 455 S.W. 2d 125 (1970) and Karraz v. Taylor, Judge, 259 Ark. 699, 535 S.W. 2d 840 (1976). Prohibition is not a proper remedy when the jurisdiction of the trial court depends on a disputed question of fact. Belford v. Taylor, 241 Ark. 220, 406 S.W. 2d 868 (1966).

Criminal Procedure Rule 28.1(a) provides:

Any defendant charged with an offense in circuit court and committed to a jail or prison in this state shall be brought to trial before the end of the second full term of court, but not to exceed nine (9) months, from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

The terms of court in the Lincoln County Circuit Court begin on the second Mondays in February and September. The terms of court in the Jefferson County Circuit Court begin on the first Mondays in March and October. Petitioner was charged during the September 1977 term in Lincoln County and the October 1977 term in Jefferson County. “Proper construction of the statute contemplates two terms of court passing in addition to the term in which the defendant is indicted.” Randle v. State, 257 Ark. 232, 516 S.W. 2d 6 (1974). Therefore, the first term of court began to run in Lincoln County on the second Monday in February and in Jefferson County on the first Monday in March. The second term of court began to run in Lincoln County on the second Monday in September and will not end until February 1979. The second term of court will begin to run in Jefferson County on the first Monday in October and will not end until March 1979. Accordingly, there has been no failure to bring petitioner to trial within two terms of court. However, Rule 28.1(a) also provides that the time a defendant shall be brought to trial shall not exceed nine (9) months. If no periods of necessary delay have occurred, petitioner has not been brought to trial within the nine month period. However, the State alleges that petitioner caused one period of delay when his counsel was relieved and that petitioner has failed to allege whether any excluded periods of time provided for in Rule 28.3 have occurred. Accordingly, the State contends there are issues of fact to be determined regarding the computation of time; therefore, a writ of prohibition will not lie. We agree.

In addition, Criminal Procedure Rule 30.1 provides:

(a) ----
(b) An incarcerated defendant not brought to trial before the running of the time for trial as provided by Rules 28.1-28.3 shall not be entitled to absolute discharge pursuant to subsection (a) hereof but shall be recognized or released on order to appear.
(c) The time for trial of a defendant released pursuant to subsection (b) hereof shall be computed pursuant to Rules 28.1 (b) and 28.2.

Petitioner is not incarcerated pending the adjudication of the charges filed against him in Lincoln and Jefferson Counties but is serving a prior sentence. Therefore, it is ridiculous to contend that he should be “recognized or released on order to appear.” That provision would apply to a defendant who is being held in jail pending trial. However, should it be found by the trial court that petitioner is entitled to relief under Rule 28.1(a), he would not be entitled to have the charges against him dismissed, but Rule 30.1 (c) would apply, and the time for trial would be computed pursuant to Rule 28.1(b), which provides:

Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

Finally, Criminal Procedure Rule 29 provides that special procedures should be applied to defendants who are serving terms of imprisonment. That rule provides:

(a) If the prosecuting attorney has information that a person charged with a crime is imprisoned in a penal institution in the State of Arkansas, he shall promptly seek to obtain the presence of the prisoner for trial.
(b)----
(c) Upon receipt from a prisoner of a demand for trial upon a pending charge, the prosecuting attorney shall promptly seek to obtain the presence of the prisoner for trial.

For all the above stated reasons, petitioner’s pro se petition for writ of prohibition is denied.

Petition denied.

Byrd, J., dissents in part.

Conley Byrd, Justice,

dissenting in part. I concur in the result only because the record demonstrates that petitioner caused the delay by requesting that Pamela Baxter be relieved as his attorney of record. Consequently, two terms of court have not elapsed within the meaning of Ark. Stat. Ann. § 43-1708 (Repl. 1977).

I must disagree with the insinuation that a prisoner can be held in prison without a trial on a pending charge for three full terms of court after the filing of the charge. Hold orders such as the warrants outstanding against petitioner affect the right of a prisoner to good time for good behavior. While appellant’s conduct merits no sympathy, we must remember that the criminal laws and procedures apply alike to all persons. If the State can ignore the 9 month speedy trial provision on petitioner, with our approval, then the State can take the same stand when the prisoner is the son of the mayor or the preacher who finds himself in prison on a manslaughter charge arising out of an automobile collision.

To show the callousness of the majority’s view, one need only look at how the time is calculated — i.e. because the first Monday in October commenced on 10-3-77 and petitioner was not arrested until October 6, 1977, the October 1977 term is not counted. In other words the first full term of court after petitioner’s arrest would not lapse until October 2, 1978; the second full term would not lapse until February 5, 1979; and the third full term would not lapse until October 1, 1979. As I calculate the time the majority are holding that a petitioner can be held in prison by the State from October 6, 1977 through October 1, 1979 without denying him a speedy trial while the petitioner is denied all prison privileges including credit for good time.

The trouble with courts prescribing rules of procedure is well demonstrated by the majority view — i.e. they can put on a “white hat” and tell the preacher and the congregation that nobody can be held in prison for more than NINE MONTHS without a trial. Yet the majority can later don a black robe and tell the petitioner’s mother that what the court giveth by rule it can take away by interpretation.

For the reasons herein stated, I respectfully dissent.


author: George Rose Smith, Justice.

text:
    Earlene SIMS v. INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY
    78-90
    571 S.W. 2d 435
    Opinion delivered October 9, 1978
    (Division I)

      David J. Potter, of Potter & Potter, for appellant.

      Atchley, Russell, Waldrop & Hlavinka, by: Charles M. Bleil, for appellee.
   George Rose Smith, Justice.

The question here is whether the terms of a partial release of the plaintiff’s cause of action precluded her from taking a voluntary nonsuit and filing a second complaint upon the unreleased portion of her cause of action.

In the original suit, numbered Civ-75-42, Earlene Sims alleged that she had sustained a $3,049.75 loss, consisting of property damage and medical expense, as a result of an accident involving her car. She alleged that two of the defendants, Pierce and Landrum, insurance agents, had failed to obtain insurance coverage for her upon the car, as they had agreed to do. She alleged that the third defendant, Indiana Lumbermens Mutual Insurance Company, had actually issued a policy of insurance, which had been lost. Mrs. Sims sought to recover the amount of her loss from each of the three defendants, plus interest, penalty, and attorney’s fee from Indiana Lumbermens.

It appears that the two insurance agents were protected by errors-and-omissions policies. They elected to settle the case by paying the claim in full. The settlement was also to release Indiana Lumbermens, except that Mrs. Sims wanted to preserve her claim against that company for interest, penalty, and attorney’s fee. To that end the attorney for the two insurance agents prepared a release, signed by Mrs. Sims, which presents the key issue on this appeal.

The first paragraph of the release acknowledged receipt of $3,049.75 in full satisfaction of Mrs. Sims’s claims against the two insurance agents. The instrument then continued with these two paragraphs:

The considerations aforesaid are also received in full settlement of an action, to the extent to which it pertains to James C. Pierce and Bernie Landrum, which Earlene Sims filed in the Circuit Court of Miller County, Arkansas, said suit styled: Earlene Sims vs. James C. Pierce and Bernie Landrum, d/b/a Bernie Landrum Insurance Agency, and appearing as No. Civ.-75-42 on the docket thereof, and Earlene Sims hereby directs her attorney, David J. Potter, to dismiss such action as it pertains to James C. Pierce and Bernie Landrum, both individually and d/b/a Bernie Landrum insurance Agency, with prejudice. Further, it is understood and agreed by Earlene Sims that the aforementioned considerations are also received in full settlement of the property damage and medical claims made by her in the aforementioned civil action as it pertains to Indiana Lumbermen’s Mutual Insurance Company except those plead [ed] against that company in the pleadings in the aforementioned case for penalty, interest and attorney’s fees. Further, Earlene Sims understands and relies upon the agreement of James C. Pierce, Bernie Landrum and Indiana Lumbermen’s Mutual Insurance Company to pay all costs of Court incurred by her in the aforementioned lawsuit.
It is understood and agreed that the considerations aforementioned are not the admission of liability on the part of James C. Pierce, Bernie Landrum or Indiana Lumbermen’s Mutual Insurance Company, but on the contrary are the compromise of the liability which is expressly contested, disputed and denied. [Italics not added.]

The release was signed by Mrs. Sims on April 26, 1976. On April 30 she dismissed her case as to the two insurance agents, with prejudice. The trial of the case as to Indiana Lumbermens was held on June 17, but at the close of the plaintiff’s proof she was permitted to take a voluntary non-suit. Less than a month later she filed a new complaint against the insurance company, seeking to recover only the items of interest, penalty, and attorney’s fee. That case was numbered Civ-76-133. In the course of the trial the court’s attention was directed to the terms of the partial release. The court, without considering the case on its merits, held that the language of the release authorized Mrs. Sims to recover only in Case No. Civ-75-42. Since a voluntary nonsuit had been taken in that case, the court entered a judgment for the defendant insurer.

We disagree with the court’s reasoning. The language of the release, which we have quoted, did refer to Case No. Civ75-42, but it was evidently done merely to identify the controversy that was being settled and the lawsuit that was to be dismissed, with prejudice, as to the two insurance agents. We find nothing whatever in the language of the release binding Mrs. Sims to pursue her case against Indiana Lumbermens only in Case No. Civ-75-42, without regard to our voluntary nonsuit statute. That statute permits a plaintiff to take a voluntary nonsuit and to proceed with the case by means of a second complaint. Ark. Stat. Ann. § 27-1405 (Repl. 1962); Jordon v. McCabe, 209 Ark. 788, 192 S.W. 2d 538 (1946). In substance, the second suit is simply a continuation of the first one. To sustain the insurance company’s present contention would be to give effect only to the form of the litigation and to disregard its substance. What we have is actually one continuing course of litigation, not two.

The insurer also argues that the penalty and attorney’s fee cannot be recovered in any event, because Mrs. Sims is no longer able to recover her basic claim of $3,049.75. Such a holding would give no effect at all to the parties’ recognition that Mrs. Sims expressly excepted from the release her claims for penalty, interest, and attorney’s fee. The appellee’s argument would nullify that language, which of course was not meant to be meaningless.

There is also a minor question about costs. In taking this appeal Mrs. Sims designated a partial record. The appellee designated additional documents for inclusion, which the appellant now argues to have been an unnecessary expense. Perhaps so, as it turns out, but the trouble is that the appellant, in designating an abbreviated record, failed to file the required statement of the points to be relied on. Ark. Stat. Ann. § 27-2127.5 (Repl. 1962). In the circumstances the appellee was left in the dark and would have acted at its peril if it failed to designate something that might prove vital to its position. Southern Farmers Assn. v. Wyatt, 234 Ark. 649, 353 S.W. 2d 531 (1962). Thus the appellant, having brought about the difficulty, is not in a position to ask for additional costs.

Reversed and remanded.

We agree.

Harris, C.J., and Holt and Howard, JJ.