author: John A. Fogleman, Chief Justice.

text:
    Lesser Jean LEE v. Robert GRUBBS
    80-65
    599 S.W. 2d 715
    Supreme Court of Arkansas
    Opinion delivered June 9, 1980

      Benton Stanley, for appellant.

      Glover, Glover & Walthall, by: G. Christopher Walthall, for appellee.
   John A. Fogleman, Chief Justice.

Appellant Lesser Jean Lee is the mother and appellee Robert Grubbs, the father of Ethel Jean Grubbs, an illegitimate child, born June 21, 1972. She has lived with her mother all her life. On July 17, 1979, the probate court, on the petition of Robert Grubbs, appointed him guardian of the person and estate of Ethel. The petition contained an allegation that the minor’s estate consisted of $148 per month as a “Social Security pension” received by Robert Grubbs on her behalf. It also contained an allegation that the minor “is being housed in an overcrowded home with extremely poor living conditions, minimum supervision and guidance, and is otherwise being cared for in an unhealthy, immoral and improper home and would be better suited to residing with petitioner, her natural father, in his home.” The threshhold question is whether the probate court had jurisdiction to appoint a guardian of an illegitimate child and place her in the custody of that guardian. We find that it did have such jurisdiction.

Appellant relies upon Art. 7, § 28 of the Constitution of Arkansas and Rapp v. Kizer, Chancellor, 260 Ark. 656, 543 S.W. 2d 458. In Rapp, we held that the chancery court had no jurisdiction to entertain a petition by the putative father to obtain visitation rights and custody of a child born to his former wife some 11 months after they were divorced. The petitioner had stated that if he were denied custody, he was willing and able, as an alternative, to pay child support as ordered by the court, commensurate with the child family support chart as utilized by the court. We held that, even though paternity was admitted, chancery court had no jurisdiction because the action filed by the putative father involved only matters relating to bastardy, of which the chancery court had no jurisdiction because Art. 7, § 28 vested exclusive original jurisdiction in all matters relating to bastardy in the county court.

This case is a guardianship proceeding, so Rapp is not governing here. The county court has no jurisdiction to appoint a guardian. Exclusive original jurisdiction of matters pertaining to private guardianships of the persons and estates of minors is vested in the probate court under Art. 7, § 34 of our constitution as amended by Amendment 24. Ex parte King, 141 Ark. 213, 217 S.W. 465; Cude v. State, 237 Ark. 927, 377 S.W. 2d 816. See also, Scott v. Boyce, 194 Ark. 1155, 110 S.W. 2d 497. The county court’s jurisdiction over bastardy would not even have prevented the probate court from determining paternity in the guardianship proceeding. Plat v. Ponder, Judge, 233 Ark. 682, 346 S.W. 2d 687, The fact that Ethel is an illegitimate child is wholly irrelevant to a proceeding to appoint a guardian of a person and estate.

Appellant also contends that the trial court exceeded its authority by placing no burden upon appellee to show that the child was being moved into the proper environment. The governing statute requires only that, after it is found that a guardianship is desirable to protect the interests of a minor, the person to be appointed guardian be qualified and suitable-to act. Ark. Stat. Ann. § 57-614 (Repl. 1971).

The evidence that the child was not living in a proper environment preponderated overwhelmingly. Appellant argues, however, that the trial court did not, and does not, know the environment in which it placed Ethel, who has gone by the surname Grubbs since she was born. Mr. Grubbs testified that he had lived for 17 years at 303 Catherine Heights Road, Hot Springs, in a three-bedroom mobile home owned by him. He said that it was equipped with running water and central heat and air conditioning. According to him, Ethel would take a bus which passed the front door of his home to Lakeside School. The fact that appellee is the natural father, even though relatively unimportant on the question of jurisdiction, is significant on this question. If a guardian is to be appointed, the natural father should have some preference over others, unless he is unfit. He testified that he is being paid $148 per month as social security for the benefit of the child. It is admitted that he has been giving $25 per month to appellant for the benefit of Ethel. It was shown that he was buying Ethel’s clothing. He said that he had paid all her medical bills. It was shown that Mr. Grubbs enrolled Ethel in kindergarten, that he paid for her lunches and other obligations incurred at the kindergarten, and that he visited the kindergarten once to three times a week during the two years she attended it. He also attended school parties and parent-teacher conferences and saw that all her needs were met. Mr. Grubbs testified that he had not used any of the monthly payment he received for Ethel’s benefit for her support, but had put it all in a bank account, which had a balance of about $2,000, for Ethel’s education. Social workers testified that they would have undertaken to place all of the numerous children in appellant’s home in foster homes if the homes were available. Mr. Grubbs said that when the social workers had told him they were trying to place the children in foster homes, he replied that Ethel didn’t have to go to a foster home because he had a decent place in which she could live.

We find the evidence sufficient to support the appointment of appellee as guardian of Ethel Jean Grubbs.

The judgment is affirmed.

Hickman, J., dissents.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Ray Lee WELCH v. STATE of Arkansas
    CR 79-192
    599 S.W. 2d 717
    Supreme Court of Arkansas
    Opinion delivered June 9, 1980
    Rehearing denied July 7, 1980

      Lessberry & Carpenter, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

On the night of June 1, 1975, three armed men — Winston Holloway, Gary Don Campbell, and the appellant Ray Lee Welch — entered the Leather Bottle, a Little Rock restaurant, after closing hours but when five employees were still on the premises. According to the State’s proof, the intruders committed robbery and raped the two women who were there.

The three men were jointly charged with robbery and two counts of rape, all three offenses having been committed with a firearm. At a joint trial all three men were convicted, with sentences of life imprisonment for each of the rapes and 21 years for robbery. Most of the essential facts are stated in our opinion on the first appeal, affirming the convictions. Holloway v. State, 260 Ark. 250, 539 S.W. 2d 435 (1976). That decision was reversed because the three defendants were not provided with separate counsel. Holloway v. Arkansas, 435 U.S. 475 (1978). Welch was then tried separately, found guilty of all three offenses, and sentenced by the jury to 18 years for each of the two rapes, with 5 years enhancement of each sentence for the use of a firearm, and to 7 years for the robbery, with 3 years enhancement for the use of a firearm. The trial judge directed that the sentences, totaling 56 years, run consecutively. Six points for reversal are argued.

First, it is argued that the jury panel should have been quashed. The names of prospective jurors were selected at random, placed in alphabetical order, and put in the jury wheel as required. Ark. Stat. Ann. § 39-205.1 (Supp. 1919). An active panel of a smaller number of jurors was then drawn from the wheel. The appellant complains that the bailiff put this smaller list in alphabetical order and eventually summoned the jurors in that order rather than in the order in which their names had been drawn from the wheel. The statute, Section 39-209-1, requires that the names be recorded in the jury book in the same order as they are drawn, which was done, but it does not specify the order in which they are to be summoned.

No error is shown, because no possibility of prejudice has been suggested. The statute is not mandatory in the sense that a failure to comply strictly with a particular provision requires that the entire panel be quashed. Huckaby v. State, 262 Ark. 413, 557 S.W. 2d 875 (1977). The bailiff testified that he put the names in alphabetical order as a convenience, to help him in locating the jurors and to help attorneys in matching the names with the individual jurors’ information sheets. That was a common-sense procedure. There were 70 names on the active list. The alphabetical listing was just as random and impartial as any other procedure. There is no hint that alphabetical order was chosen for a sinister purpose. Moreover, all 70 jurors were actually called in this case; so the objection narrows down not to which ones were called but to the order in which they were called. In the absence of any showing whatever of possible prejudice, the trial judge was right in denying the motion to quash the panel.

Second, it is argued that a certain undated, unsigned written statement, assertedly made by one of the robbers, Campbell, was admissible in evidence. At the outset the robbers lined the five employees up, facing a wall, and commanded them to keep their eyes closed. Somewhat later Holloway took one of the women, Mary, to some stairs and raped her. Still later Mary was raped by a second man, who must have been Welch, as Mary was certain it was not Holloway or Campbell. At about the same time the other woman, Robin, was raped by a man who must have been Campbell, as Robin was certain it was not Holloway or Welch. Welch testified that he had nothing to do with any of the three rapes, but under the court’s instructions he could have been found guilty as a principal without having actually been the rapist.

Welch, in his testimony, identified the statement in question as having been written by his half brother, Campbell, about two months before the trial in June, 1979. In the statement Campbell said that Holloway held a gun on him and forced him to rape Robin (or possibly Mary; the statement is vague), so that the women would not know who had raped them. Campbell refused to testify at the trial, pleading the Fifth Amendment, and was therefore unavailable as a witness, as provided by Uniform Evidence Rule 804 (a) (1), Ark. Stat. Ann. § 28-1001 (Repl. 1979).

Under the Uniform Rules of Evidence a statement tending to subject an unavailable declarant to criminal liability is not excluded as hearsay if it meets these requirements of Rule 804 (b) (3):

Statement against interest. A statement which ... so far tended to subject the declarant to civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

By the explicit language of the Rule this particular statement was not admissible unless corroborating circumstances clearly indicate its trustworthiness. That condition is of primary importance, for without it an accused could fabricate a tale that he met a stranger on the street who admitted having committed the offense on trial. Other witnesses could also be called to testify that the stranger made the statement.

The question is, did the trial judge abuse his discretion in finding, as a preliminary matter, that the statement was not clearly shown to be trustworthy? See United States v. Guillette, 547 F. 2d 743 (2d Cir., 1976). “Trustworthy” means deserving of confidence; dependable; reliable. Random House Dictionary (1966). Here the statement was not made until four years after the crime, on the eve of Welch’s trial. Campbell apparently made it to help his half brother, but he protected himself by not signing it and by asserting that he committed the rape at gunpoint — an inherently unlikely occurrence. No other testimony suggests that anything of the kind took place. The statement is apparently a fabrication, but in any event we cannot say that corroborating circumstances clearly indicate its trustworthiness.

Third, Welch questions enhancement of the punishment under the firearm statute. Two arguments are made: One, since robbery is a crime of violence, the punishment cannot be increased because a deadly weapon was used. Welch was charged' under a former statute, which defined robbery as the felonious and violent taking of anything of value from the person of another by force or intimidation. Ark. Stat. Ann. § 41-3601 (Repl. 1964). That statute made no reference to the use of a deadly weapon; so robbery could have been committed without the use of a firearm. Therefore the firearm enhancement for robbery was not eliminated by the new Criminal Code. Ark. Stat. Ann. § 41-1004 (Repl. 1977); Rust v. State, 263 Ark. 350, 565 S.W. 2d 19 (1978). Two: It is argued that the punishment for each of the three offenses cannot be enhanced, because all three were parts of a single criminal episode. Even so, the robbery and the two rapes were separate offenses, each of which could have been committed with or without a firearm. No double jeopardy is involved, because there is no constitutional barrier to the enhancement of the separate punishment for each of three distinct crimes, all of which were committed with a firearm.

Fourth, it is argued that a mistrial should have been granted (A) when a witness mentioned a necklace not connected with the robbery and (B) when the prosecutor objected, out of the hearing of the jury, to part of defense counsel’s closing argument. Both incidents were trivial, in that the jury heard nothing that was prejudicial. It is argued that the court’s prompt admonitions to the jury amounted to comments on the evidence. Not only do we find that contention to be without merit, but also no such objection to the admonitions was made below.

Fifth, the three sentences imposed at the first trial — two life sentences and one 21-year sentence — ran concurrently, because the judgments did not state they ran consecutively. Ark. Stat. Ann. § 41-903; Williams v. State, 229 Ark. 42, 313 S.W. 2d 242 (1958). It is now argued, on the authority of North Carolina v. Pearce, 395 U.S. 711 (1969), that the trial judge could not impose a more severe sentence at the second trial, by making the sentences run consecutively, without an affirmative showing of his reasons for increasing the severity. That may be true, even though the jury fixed the sentences, but the trouble is that the appellant has not shown that the consecutive sentences are moré severe than the first ones. We recognize, of course, that owing to executive clemency and the allowance of credits for good behavior a person sentenced to life imprisonment hardly ever spends the rest of a normal life span in prison. See Pummel v. Estelle, 63 L. Ed. 2d 382 (1980). But here the appellant’s new sentences total only 56 years, and we must also recognize the improbability that he will spend that length of time in prison. It is impossible for us to say as a matter of law that a 56-year sentence is more severe than a life sentence. Consequently the appellant has not demonstrated a violation of the principle laid down in Pearce.

Sixth, Welch was confined in jail or prison for some four years between the time of his arrest and the date of the second trial. It is now argued, again on the authority of Pearce, that he must be given credit for those four years against each of the three basic new sentences and against each of the three enhancements for the use of a firearm. We need not discuss the latter credits at length, because the original firearm statute specifically provided that the enhancement for the use of a firearm must run consecutively to the basic sentence. Act 78 of 1969; Ark. Stat. Ann. § 43-2337 (Supp. 1975). That is also true under the Criminal Code, which provides that the use of a firearm simply increases by 15 years the permissible maximum punishment. Section 41-1004 (Repl. 1977). Hence the firearm enhancements must always run after the basic sentences and cannot be affected by the concurrent running of the original sentences.

Nor are we persuaded that three separate credits of four years each must be allowed upon the three new basic sentences. In Pearce the court recognized that the law’s premise that the granting of a new trial wipes the slate clean is an unmitigated fiction with respect to whatever punishment the defendant has already suffered under the first conviction. But it is also a fiction to declare that a prisoner serving time for three concurrent sentences is being punished three times more severely than another prisoner serving time in the same cell for only one offense. In that respect it is not a fiction to say that the slate is wiped clean if credit is given. In Pearce the court held that “punishment already exacted must be fully ‘credited’ in imposing sentence upon a new conviction for the same offense.” But here there were three different offenses. They cannot be separated into compartments, especially as the original life sentences encompass any lesser terms of years. Under our law the new sentences, totaling 56 years, must, for parole eligibility purposes, be treated as a single commitment for that length of time. § 43-2807 (Repl. 1977). Welch is entitled to credit for his total jail time, but nothing more. The trial court was right in ordering that Welch’s jail-time credit be allowed a single time in reduction of the total sentence.

Affirmed.


author: Frank Holt, Justice. John A., Fogleman, Chief Justice,

text:
    STATE of Arkansas v. Arthur Jerome BROADWAY
    CR 80-16
    599 S.W. 2d 721
    Supreme Court of Arkansas
    Opinion delivered June 9, 1980

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen.., for appellant.

      McArthur & Lassiter, P.A., for appellee.
   Frank Holt, Justice.

The state brings this interlocutory appeal from the trial court’s granting of the appellee’s motion to suppress certain evidence. Ark. Rules of Crim. Pro., Rules 36.10 and 16.2 (d) (1977). The sole issue presented is whether the trial court erred in ruling that the evidence, marijuana, be suppressed due to an invalid nighttime search warrant.

The facts and circumstances surrounding the issuance ot the search warrant are not in dispute. The facts constituting probable cause in support of the affidavit state that, based on police file reports of appellee’s activities and information received about a purchase in appellee’s home the day before the search from a proven confidential informer, police officers arranged a “controlled buy” at appellee’s home. This informant purchased a quantity of marijuana from the appellee between 5 and 7 p.m. Shortly thereafter, the two police officers, who observed the informant enter the premises and leave, typed an affidavit and filled in the blanks of a search warrant authorizing a search of appellee’s home. They took the completed instruments to a judicial officer’s residence for his approval. After the police officers were sworn by him, they signed the affidavit and the judge signed the search warrant.

The affidavit, after enumerating the above asserted facts surrounding the “controlled buy,” ended with this conclusory statement:

Having found reasonable cause to believe that the substance described herein could be removed unless the search is conducted immediately, you are hereby commanded to search the above described premises of property at anytime of the day or night.

The search warrant, a printed form, contained this identical language as a standard paragraph, except it used the word “probable” rather than “reasonable.” The warrant was issued based solely on the affidavit. The search was conducted at 9:15 p.m. that evening. Five individuals, including the appellee, who were engaged in a dice game, attempted to leave the room or premises. Marijuana was seized, which was concealed on appellee’s person and in his bedroom. There was no evidence of the use or sale of the marijuana.

A motion to suppress shall be granted only if the court finds that a violation is substantial or contrary to the federal Fourth Amendment or Art. 2, § 15, of our state constitution. Harris v. State, 262 Ark. 506, 558 S.W. 2d 143 (1977); and Rules of Crim. Proc., Rule 16.2 (1977). Even so, penal statutes or rules are to be strictly construed in favor of the individual. Austin v. State, 259 Ark. 802, 536 S.W. 2d 699 (1976). Stated in another way, the constitutional guarantee against unlawful search and seizure must be construed in favor of the individual. Lowery v. United States, 128 F. 2d 477 (8th Cir.1942). In Harris v. State, 264 Ark. 391, 572 S.W. 2d 389 (1978), we said:

Good cause must exist and be found by the issuing judicial officer to exist to authorize entry into a citizen’s privacy in the nighttime. This is a safeguard justified by centuries of abuse. . . .
The forms and procedure are quite elementary, the adherence to which will save everyone concerned a good deal of time, money, and sometimes, anguish.

The state, in support of its position, cites numerous federal cases to justify nighttime searches in drug related cases pursuant to a federal statute or rule. Here, however, we are interpreting our own recent rules on this subject. Rules of Crim. Proc., Rule 13-1 (d) (1977), authorizes the judicial officer to issue a search warrant when he believes reasonable cause exists for the issuance based upon the proceedings before him. Rule 13.2 (c) provides, however, that a search warrant shall be executed between the hours of 6 a.m. and 8 p.m. or in the daytime. There are only three exceptions to this restriction. The pertinent one here is that “the objects to be seized are in danger of imminent removal.”

The affiants, and not the court, “found reasonable cause” existed for an immediate search since the substance “could be removed.” They then “commanded” themselves to make the search at anytime during the day or night. There is no factual basis in the. affidavit to support a nighttime search except this conclusory finding and self-command. An affidavit should speak in factual and not mere conclusory language. It is the function of the judicial officer, before whom the proceedings are held, to make an independent and neutral determination based upon facts, not conclusions, justifying an intrusion into one’s home. At the suppression hearing, the state properly took the view that the conclusory • language in the affidavit was a mistake and neither added nor detracted from it. Admittedly, this clause should appear only in the search warrant. It is undisputed that except for the judicial officer’s signature, address, and date, the warrant was completely filled in by the affiants when it was submitted to the judge for his signature. The record reflects no testimony before the judicial officer to support the nighttime search. The affidavit itself reflects the existence of marijuana in appellee’s house during the preceding day. Further, the affiants’ conclusory language is vastly different from the sworn testimony in Harris v. State, 262 Ark. at 509, supra, that “evidence [murder weapon] . . . might be disposed of . . .” We cannot construe “could be removed” to convey the meaning that the controlled substance was in “danger of imminent removal,” which is required to justify a nighttime search.

In the circumstances, we must agree with the trial court that there was insubstantial compliance with the legal requirements for a nighttime search of appellee’s home.

Affirmed.

Fogleman, C.J., and Hickman and Stroud, JJ., dissent.

John A., Fogleman, Chief Justice,

dissenting. I thoroughly disagree with the majority and the trial judge on the suppression of the marijuana in this case. We should approach this question, as well as all other questions pertaining to the suppression of evidence seized as the result of a search, recognizing that it is only unreasonable searches that are prohibited by Amendment Four to the United States Constitution. Wickliffe v. State, 258 Ark. 544, 527 S.W. 2d 640. We should also never lose sight of the fact that the United States Supreme Court has consistently maintained its position that the primary, if not sole, purpose of the exclusionary rule is to deter illegal police activity. From the inception of the rule in Weeks v. United States, 232 U.S. 383 34 S. Ct. 341, 58 L. Ed. 652, LRA 1915 B 834, Ann. Cas. C 1915, 1177 (1914), the court has abided by this reasoning. Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960); Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 ALR 2d 933 (1961); United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974).

Because of the decided preference for officers to act pursuant to a warrant issued by a magistrate, rather than upon their own determinations of probable cause, the courts should not discourage police officers from submitting the question to a judicial officer by acting from a hypertechnical viewpoint rather than a realistic and common sense one. United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965). See also, State v. Lechner, 262 Ark. 401, 557 S.W. 2d 195; Baxter v. State, 262 Ark. 303, 556 S.W. 2d 428. The preference is so strong that less persuasive evidence than would support a warrantless search will justify the issuance of a search warrant. Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). When a search is based upon a warrant issued by a magistrate, reviewing courts should accept evidence of a less judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant, unless the magistrate acted only as a rubber stamp for the police. Aguilar v. Texas, supra. We should always remember that the burden is upon one moving to suppress evidence to establish that his Fourth Amendment rights were violated by a search and seizure. Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), reh. denied, 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83. Although this burden is easily met by the mere showing that the search was made without a warrant, it remains upon the attacker when it is based upon a search pursuant to a warrant. Prichard v. State, 258 Ark. 151, 523, S.W. 2d 194; Albright v. Karston, 206 Ark. 307, 176 S.W. 2d 421.

We have adopted a common sense approach to suppression of evidence in Rule 16.2, Arkansas Rules of Criminal Procedure, Vol. 4A, Ark. Stat. Ann. (Repl. 1977). A motion to suppress is to be granted only if the court finds the violation upon which it is based is substantial, or if otherwise constitutionally required. Lipovich v. State, 265. Ark. 55, 576 S.W. 2d 720; Pridgeon v. State, 262 Ark. 428, 559 S.W. 2d 4; Brothers v. State, 261 Ark. 64, 546 S.W. 2d 715. On the question of nighttime search pursuant to a warrant, the violation must be substantial, for their is no constitutional mandate for the exclusion of evidence seized pursuant to a warrant commanding a nighttime search. In determining whether a violation is substantial, the court must consider all the circumstances, including:

(i) the importance of the particular interest violated;
(ii) the extent of deviation from lawful conduct;
(iii) the extent to which the violation was willful;
(iv) the extent to which privacy was invaded;
(v) the extent to which exclusion will tend to prevent violations of these rules;
(vi) whether, but for the violation, the things seized would have been discovered; and
(vii) the extent to which the violation prejudiced the moving party’s ability to support his motion, or to defend himself in the proceedings in which the things seized are sought to be offered in evidence against him.

It should be noted that in comment I to Rule 16.2, a motion to suppress may be granted if the warrant was executed at a time not authorized in the warrant. Nothing is said about the absence of a specific finding of fact. Conceding that we have recognized that restriction upon nighttime searches is important, and that disregard of them is an invasion of privacy which should normally be avoided, I submit that the deviation here from lawful conduct is miniscule, if existent at all, that there was no willful violation, and that the exclusion would tend to increase, rather than prevent, violation of the rules. The vital matters, from a constitutional standpoint, are that the warrant be issued upon probable cause, supported by oath or affirmation, and that it particularly describe the place to be searched and the person or thing to be seized. Harris v. State, 262 Ark. 506, 558 S.W. 2d 143.

In Harris v. State, supra, we held that there was no substantial violation of the defendant’s rights because of a nighttime search pursuant to a warrant which did not contain a recitation that it be executed between the hours of 6:00 a.m. and 8:00 p.m. It was argued that no exigent circumstances justifying a nighttime search were shown in the affidavit. The only statement in the affidavit as to the need for a nighttime search was that the evidence of the crimes under investigation might be disposed of. We found no substantial violation of the rights of the accused. We said there that the magistrate’s actual issuance of the search warrant more positively established his finding of reasonable cause than the insertion of a conclusory finding to that effect would have. Harris v. State, 264 Ark. 391, 572 S.W. 2d 389, cited and relied upon by the majority is not a departure from other decisions by this court on suppression of evidence since the adoption of the Rules of Criminal Procedure. The reversal in Harris was not based upon the statement quoted from the opinion. The trial judge had denied a motion to suppress in spite of his comment that there appeared to be a total disregard for the rules. Our reversal clearly stated:

We find on review that the cumulative errors, omissions, and deficiencies in this search warrant and affidavit require us to conclude that the warrant must fail as legally insufficient.
There were several flagrant deficiencies in the warrant and affidavit. ***
* # *
In summary, there were too many omissions, errors and deficiencies in this warrant and related to this search to give us any confidence in its correctness or regularity.

Among the flagrant errors were: the failure of the warrant to specify the place to be searched with the required specificity; no receipt was given for items seized, even though the authenticity of the items became a critical issue; the return on the warrant was invalid; the affidavit was admittedly in error in several regards. The warrant in Harris, unlike the warrant here, contained no finding that it could be served day or night.

In my view, good cause for a nighttime search did exist in this case, and was found to exist by the issuing judge.

The affidavit in this case, made on December 5, 1978, at 8:30 p.m., contains the following information critical to the issuance of a warrant for a nighttime search:

1. The affiants were detectives of the Little Rock Police Department Narcotics Detail.
2. The place to be searched was a one-story white wood frame residence occupied by appellant, who, according to information received by them on December 4, 1978, from a reliable confidential informant, was selling marijuana there.
3- That the reliable confidential informant had been present and observed appellant sell marijuana.
4. On the date of the affidavit, the reliable confidential informant, after it had been established that he had no narcotics in his possession, was furnished with money by the affiants, entered the place described and returned directly to the affiants and delivered to one of them a quantity of a green vegetable substance, which was shown to be marijuana by a field test.
5. The informant stated that the substance he delivered to the detective had been retrieved by appellant from the residence.
6. The narcotics unit files contain reports that stated that appellant was involved in the sale of marijuana in the Little Rock area.

It also communicated the belief that an immediate search was necessary by ineptly including a statement more appropriate to a form of warrant to be issued for a nighttime search. That statement was:

Having found reasonable cause to believe that the substance described herein could be removed unless the search is conducted immediately, you are hereby commanded to search the above described premises of property at anytime of the day or night.

The warrant was not a model form either, but it contained a finding that the issuing judge had reason to believe that a controlled substance (marijuana) was being concealed and ordered a search of the structure at anytime of day or night. The next to the last paragraph in the warrant was identical in wording to the paragraph from the affidavit quoted above.

In the absence of bad faith, no search or seizure made with a warrant should be deemed unlawful because of technical insufficiencies or irregularities in the warrant or in the papers and proceedings to obtain it. State v. Gillman, 113 N.J. Super. 302, 273 A. 2d 617, 46 ALR 3d 1337 (1971). Only by a hypertehcnical and hypercritical view of this affidavit and warrant and an overextension of the exclusionary rule can it be said that the requirements for a nighttime search had not been met or that the violations of the required standards were substantial enough to require suppression of the evidence for violation of appellant’s constitutional rights. Any defects are procedural and there has been no violation of Broadway’s substantive rights. See United States v. Searp, 586 F. 2d 1117 (6 Cir.), cert. den. 440 U.S. 921, 99 S. Ct. 1247, 59 L. Ed. 2d 474 (1979).

I sharply disagree with the majority’s statement that there was no factual basis for a nighttime search, with or without the clause it discards as a “conclusory finding and self-command.” That clause should be treated as the clumsy work of a police officer who was not a legal technician. I also take issue with the majority’s posture that only one of the exceptions to the “daytime” requirements is pertinent. In my opinion, the exception, to be applied when the warrent can only be successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy, is also pertinent.

The only limitations upon a nighttime search are stated in Rule 13 (c). It simply requires that the issuing judicial officer, by appropriate provision in the warrant, authorize its execution “at any time, day or night” upon a finding by the judicial officer of reasonable cause to believe that:

(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy.

Nothing in the rules requires that the finding of reasonable cause be stated in the warrant. This is in keeping with the manner in which the issuance of search warrants has always been treated. The very issuance of a search warrant is itself an adjudication by the issuing magistrate that probable cause exists for the search sought to be made, or, in other words, it constitutes a finding by the issuing officer of the existence of the grounds required for its issuance. Chruscicki v. Hinrichs, 197 Wis. 78, 221 N.W. 394 (1928). We have held that when a search warrant is regular on its face (and this one is) it is presumed, in the absence of proof to the contrary, that all things essential to its validity were done before it was issued. Albright v. Karston, 206 Ark. 307, 176 S.W. 2d 421. A recital in a search warrant that the issuing judge is satisfied there was reasonable cause is a sufficient finding of reasonable cause. State v. Blumenstein, 186 Wis. 428, 202 N.W. 684 (1925). A formal finding a probable cause is not even essential, if the proof on which it was based is sufficient. Glodowski v. State, 196 Wis. 265, 220 N.W. 227 (1928). We are here dealing with probable or reasonable cause in considering authorizations for a nighttime search. The issuance of a warrant for a “day or night” search and the recitals it contains should have the same effect and carry the same presumptions as the issuance of any search warrant, insofar as probable or reasonable cause determinations are concerned.

The burden was upon appellee to show that there was no reasonable cause for the issuing judge to believe that the requirements for a search, day or night, existed. I submit that he failed.

A judge is not required to take leave of his common sense and ignore matters of common knowledge in issuing search warrants. Jurors are instructed that they are not required to set aside their common knowledge in considering evidence. AMI (Civil 102). Judges should not do so, either. See Cannon v. State, 265 Ark. 270, 578 S.W. 2d 20.

In judging probable cause, issuing magistrates are not to be confined by niggardly limitations or restrictions on use of their common sense and their determination should be given great deference by reviewing courts. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). The Fourth Amendment does not prevent the neutral and detached magistrate from drawing the usual inferences which reasonable men draw from evidence; it only limits police officers engaged in the enterprise of ferreting out crime in making those judgments. Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1948). The probabilities we deal with in probable cause determinations are not technical; they are the practical and factual considerations of everyday life upon which reasonable and prudent men, not legal technicians, act. Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).

In determining whether probable cause for issuance of a search warrant exists, the magistrate may rely upon all reasonable inferences of which the facts and circumstances stated in an affidavit are reasonably susceptible, in the light of his own background of experience. United States v. Daniels, 10 F.R.D. 225 (D.C., N.J., 1950); United States v. Melville, 309 F. Supp. 829 (S.D., N.Y., 1970); Irby v. United States, 314 F. 2d 251 (D.C., Cir.), cert. den. 374 U.S. 842, 83 S. Ct. 1900, 10 L. Ed. 2d 1064 (1963). See also, Dean v. State, 205 Md. 274, 107 A. 2d 88, 48 ALR 2d 1096 (1954). The affidavit must be interpreted in accordance with the dictates of common sense and not in a hypertechnical manner. United States v. Melville, supra.

We have resorted to common knowledge of the process of distillation of ardent spirits and of the fact that Banks deal only in money when giving credit to their depositers, in determining the sufficiency of indictments. Hodgkiss v. State, 156 Ark. 340, 246 S.W. 506; Gurley v. State, 157 Ark. 413, 248 S.W. 902. We looked to common knowledge that non-intoxicating liquors could be bought anywhere in 1925 in finding the evidence sufficient to support a conviction for selling intoxicating liquors on testimony referring only to “liquor,” in Griffin v. State, 169 Ark. 342, 275 S.W. 665, and that all fruit jars look alike, in holding the evidence insufficient on a charge of manufacturing fermented liquors in Wald v. State, 183 Ark. 766, 38 S.W. 2d 307. We said that it was common knowledge that civic organizations and newspapers put on in-intensive drives to encourage people to vote in holding that the evidence was insufficient to support a charge of inducing fraudulent ballots in an election. Williams v. State, 222 Ark. 458, 261 S.W. 2d 263. In considering admissibility of evidence, we resorted in 1937 to common knowledge that many of the “hightest” gasolines were colored red. Glover v. State, 194 Ark. 66, 106 S.W. 2d 82. We have also considered well-known habits and courses of conduct. We said that it was a matter of common knowledge that many of the most atrocious and deliberate crimes are committed by persons more or less under the influence of intoxicants and that, in many instances, the intoxicant is used to supply the necessary fortitude to commit the criminal act. Murry v. State, 209 Ark. 1062, 194. S.W. 2d 182. We also have considered it to be common knowledge that many persons who fall asleep in an automobile with the engine running and the window glass up have been asphyxiated when the exhaust system or the heater of the vehicle is defective. Berry v. City of Springdale, 238 Ark. 328, 381 S.W. 2d 745, 8 ALR 3d 925.

There is absolutely no reason why a judge, in considering whether there is reasonable cause to believe a nighttime search is permissible, should not draw inferences from the facts and circumstances disclosed by the affidavit and other recorded information given him under oath in the light of his own common knowledge. It is proper for a judge issuing a warrant for a nighttime search to take notice of the fact that the articles named in the warrant (whiskey, beer, etc.) were readily destroyable or removable. People v. Horton, 32 A.D. 2d 707, 300 N.Y.S. 2d 15 (1969); People v. DeLago, 16 N.Y. 2d 289, 266 N.Y.S. 2d 353, 213 N.E. 2d 659, cert. den. 383 U.S. 963, 86 S. Ct. 1235, 16 L. Ed. 2d 305 (1966). The courts, when the question has arisen, have, in other cases, relied upon common knowledge, or accepted as fact, that expeditious action is appropriate when controlled substances are involved, because of the fact that they are so susceptible to removal or immediate disposal. See e.g., Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1962). It is also proper to draw an inference from the well-known fact that traffic in controlled substances is more prevalent at night than in the daylight hours. The fact that a sale had taken place at night in a private residence is significant on the question of good cause for the service of a warrant in the nighttime. People v. Govea, 235 C.A. 2d 285, 45 Cal. Rptr. 253 (1965).

The majority has concluded that “the marijuana” had been at Broadway’s house for two days. This inference was drawn from the disclosure that the informant had seen marijuana there on two different days. Obviously, he did not see the same marijuana, nor did he purport to know that the. two sales of which he had knowledge came from the same “stock” or supply, or that a supply was on hand during an intervening twenty-four hour period. It would be unreasonable, however, to conclude that the “controlled buy” by the informer exhausted the stock on the night of the purchase; the probabilities are to the contrary. See Hignut v. State, 17 Md. App. 399, 303 A. 2d 173 (1973).

The affidavit’s disclosure that the affiants were members of the Little Rock Police Department’s Narcotics Unit certainly justified the inference that they were possessed of special knowledge of conditions and practices of those who deal in controlled substances. The experience and special knowledge of the police officers who are applying for a warrant are among the facts which may be considered by the issuing magistrate. State v. Harris, 256 Wis. 93, 39 N.W. 2d 912 (1949); Wood v. State, 185 Md. 280, 44 A. 2d 859 (1945); Bratburd v. State, 193 Md. 352, 66 A. 2d 792 (1949);Mezzatesta v. State, 53 Del. 145, 166 A. 2d 433 (1960); Davis v. State, 205 Md. 552, 109 A. 2d 774 (1954).

Not only did the narcotics officers have reason to believe that an immediate search was necessary, the issuing judge had a basis for drawing that inference from the facts and circumstances stated in the warrant viewed in the light of common knowledge that controlled substances are, like intoxicating liquors, susceptible of ready destruction or removal and that traffic in them is more prevalent at night than in the daytime. It was not ufireasonable for the magistrate to infer that it was essential to a successful execution of the warrant that it be executed promptly after the “controlled buy.”

I would reverse the trial court’s suppression of the evidence.

I am authorized to state that Mr. Justice Hickman and Mr. Justice Stroud join in this opinion.


author: John I. Purtle, Justice.

text:
    Marsha MORGAN et al v. Horace WILLIAMSON et al
    80-90
    600 S.W. 2d 14
    Supreme Court of Arkansas
    Opinion delivered June 9, 1980

      John Norman Warnock, for appellants.

      William I. Preivett, for appellees.
   John I. Purtle, Justice.

The Chancery Court of Union County dismissed the appellant-taxpayers’ complaint alleging the action of the Board of Directors of the Lawson School District No. 71 and the Union County Board of Education illegally ordered consolidation of the Lawson School District No. 71 with the El Dorado School District No. 15.

On appeal appellants argue the trial court erred in: (1) not voiding the order of consolidation because the Lawson district was geographically more contiguous to the Old Union District No. 2 than the El Dorado district; and, (2) failing to find the merger should have been effected through the election process.

We believe the chancellor made the correct decision on both assignments of error.

On March 23, 1978, the Board of Directors of Lawson School District No. 71 petitioned the Union County Board of Education to abolish the Lawson district at the end of the 1977-78 school year and annex it with another district. This action was necessary because Lawson School District could not comply with the provisions of Act 229 of 1969 (Quality Education Act).

On April 18, 1978, the Union County Board of Education annexed the Lawson district to the El Dorado district with the annexation to be effective on July 1, 1978. The county board of education ordered all assets and liabilities of the Lawson district to be transferred to the El Dorado district.

Some of the appellants were aware of the action of the boards of education in April of 1978. At that time, there was still adequate time to appeal the order of the county board of education. Ark. Stat. Ann. § 80-236 (Repl. I960) provides for appeal of an order from the county board of education within 30 days. To the same effect, see Hill v. Lee Co. Bd. of Ed., 243 Ark. 326, 419 S.W. 2d 807 (1967).

On May 1, 1979, appellants filed the present taxpayers’ action in the Union County Chancery Court. They sought to nullify the action taken in 1978 by the Lawson and Union County Boards of Education and to restore the Lawson district together with its assets. They further requested an election to be held in the Lawson district to determine whether the patrons wished to merge with Old Union School District No. 2 or El Dorado School District No. 15.

Appellants’ argument in chief is that the Lawson district was geographically more contiguous to Old Union School District No. 2 because it had 18 to 20 miles of common boundary whereas the El Dorado District No. 15 had only three miles of contiguous boundary line. They also argue rather forcefully that the Lawson voters should have been allowed to vote on the merger.

Act 229 of 1969, Ark. Stat. Ann. § 80-4601 — 4615 (Supp. 1979), otherwise known as the Quality Education Act of 1969, required the Lawson district to merge with another school district because of its lack of a proper rating. It is undisputed that the procedure utilized by the boards of education were authorized by the provisions of the Act 229- In fact, Ark. Stat. Ann. § 80-4612 (Supp. 1979) specifically authorized the action taken by the Lawson board and the county board in this matter. There was no appeal from the final order of the Union County Board of Education entered on April 18, 1978.

Although there may have been other avenues available to the Lawson district to use in dissolving the district, the board of education elected to proceed in accordance with Act 229 of 1969; and, we must hold that such action was legal. Whether it would have been a wiser course to use another method for consolidating the district is not before us because the appellant failed to appeal from the order of the Union County Board of Education dated April 18, 1978.

We have decided the case on the merits, although it could have been dismissed for want of chancery jurisdiction.

Affirmed.


author: Richard L. Mays, Justice. John A. Fogleman, Chief Justice, John I. Purtle, Justice,

text:
    Juan Alipio MARTINEZ v. STATE of Arkansas
    CR 80-39
    601 S.W. 2d 576
    Supreme Court of Arkansas
    Opinion delivered June 9, 1980

      Hubert L. Burch and Charles E. Hanks and Wyman R. Wade, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   Richard L. Mays, Justice.

Appellant was tried by the court below sitting as a jury and found guilty of two counts of being an accomplice to failure to appear in violation of Ark. Stat. Ann. § 41-303 (Repl. 1977). The information alleged that on or about July 17 and 19, 1978, appellant, Juan Alipio Martinez, with the purpose of promoting or facilitating the offense of failure to appear, did solicit, advise or encourage Kathy Workman and Demarious Haney to commit the crime of failure to appear. The court sentenced appellant to five years imprisonment on each count with two years suspended, the sentence to run concurrently. Primarily challenging the sufficiency of the evidence to sustain his convictions, appellant brings this appeal.

Appellant worked in Benton County, Arkansas, as a bail bondsman for Sentinel National Bonding Agency between July 2, 1977, and July 17, 1978. In February, 1978, appellant made a $5,000 bond for Kathy Workman who was given a July 17, 1978, trial setting on a charge of armed robbery. Sometime before the trial date appellant became friendly with Kathy Workman and began to frequent her home which she shared with a Demarious Haney, who also had a criminal trial scheduled for July 19, 1978. In early July, 1978, appellant began to associate with James Allen, an old acquaintance just returning from military service, who met Kathy and Demarious through appellant. On July 16, 1978, the night before Kathy Workman’s scheduled trial, appellant, Kathy Workman, James Allen and Demarious Haney drove to Siloam Springs and, after spending the night at the Eastgate Motor Lodge, drove to Tulsa, Oklahoma where Kathy Workman and Demarious Haney boarded a plane on the evening of the 17th to California. On the morning of July 17, 1978, before they left for Tulsa, James Allen and appellant returned briefly to Bentonville for James Allen to withdraw $250 from the bank to finance the two women’s flight to California. Appellant also went by the courthouse to ask the sheriff and prosecutor not to do anything about Kathy’s failure to appear until he made an effort to locate her. Although appellant knew that Kathy was at the Eastgate Motor Lodge in Siloam Springs, he indicated that he had not seen her since approximately 10:00 p.m. on the night of the 16th. Appellant and James Allen then returned to Siloam Springs, took the women to the Tulsa airport and returned to Bentonville.

Maintaining that he did not know that the women were trying to avoid prosecution, James Allen reported the July 16th and 17th episode to the police approximately one week later after overhearing a conversation between appellant and a policeman which incriminated the women. Attempting to verify Allen’s disclosures, the Bentonville police chief presented a photograph of appellant to the manager of the Eastgate Motor Lodge in Siloam Springs, after first inquiring about the motel’s guests on the night in question. The manager recalled the night and identified appellant from the photograph. The manager later identified appellant in the court trial from which he now appeals his convictions.

For reversal appellant first argues that the motel manager’s in court identification of appellant was tainted by an impermissibly suggestive pre-trial photographic identification and, therefore, should have been excluded. If the in court identification is excluded, appellant contends that the evidence would be insufficient for a conviction since the testimony of James Allen, whom appellant alleges is an accomplice, would be uncorroborated. First, we find that James Allen was not an accomplice since he testified that he had no knowledge of the criminal charges against the women, and the trial judge specifically credited his testimony. Second, irrespective of the accomplice argument, the motel manager’s testimony should not have been excluded because of any defects in the appellant’s pre-trial identification. Although we recognize that a single photographic identification procedure may be unduly suggestive, the ultimate test of its admissibility is its reliability. The question is whether, under the totality of the circumstances, the identification is reliable, even though the procedure is suggestive. Manson v. Brathwaite, 432 U.S. 98 (1977); McCraw v. State, 262 Ark. 707, 561 S.W. 2d 71 (1978). Before identifying appellant’s photograph, the motel manager described appellant as a man of Spanish descent, or other than Caucasian, who was something short of six feet, 175 or 180 pounds, with black fuzzy hair and a mustache. She said he wore a pair of cut-off shorts and a Budweiser tee-shirt. When shown the photograph, she promptly responded, “that’s the man I bumped into.” Under these circumstances, the trial court justifiably concluded that the single photographic identification procedure was reliable and, therefore, did not taint the in court identification of appellant.

Even if the motel manager’s identification of appellant is not excluded, appellant contends that the evidence is insufficient to support'his convictions. In part, we must agree with appellant. Although we find an adequate evidentiary base to support a conviction of appellant on the count involving Kathy Workman, we do not find sufficient evidence to sustain appellant’s conviction on the count involving Demarious Haney. Appellant was Kathy Workmen’s bail bondsman and, therefore, knew her trial was scheduled for July 17. With this knowledge, appellant not only helped her leave the state on the date of her scheduled trial, but gave misleading information to the law enforcement officials concerning her whereabouts. In regard to Demarious Haney, however, the evidence does not establish that appellant knew of her trial date of July 19, or, for that matter, even knew that any criminal charges were pending against her. The record provides no indication that he was her bail bondsman or that she informed him of the charges against her. Without this critical link, the evidence falls short or establishing that appellant knowingly solicited or encouraged Demarious Haney to commit the offense of failure to appear.

One further issue raised by appellant requires our attention. Appellant contents that there was reversible error arising from the state’s failure to provide him with certain documents and names of witnesses in response to timely discovery requests. Specifically, appellant alleges that he was not provided with the photograph identified by the motel manager and the names of state witnesses, Josephine Heyland and Tom Keith, who established that Kathy Workman and Demarious Haney had trials set on the dates in question and did not appear. Appellant also complains about not being provided in advance of trial the criminal docket sheet on Kathy Workman which was introduced through the testimony of Josephine Heyland. Although appellant alleges no particular prejudice, he argues for reversal because the state’s failure to disclose violates its discovery obligations under Rules 17.1 and 19-2 of the Arkansas Rules of Criminal Procedure. The record indicates, however, that the state did provide the photograph after appellant’s counsel requested it at the omnibus hearing before trial. In addition, although the state did not disclose in advance of the trial the names of the two witnesses, one witness was listed by appellant as a defense witness and the other was interviewed by appellant’s counsel in advance of his testimony after the court recessed explicitly for that purpose. Although we encourage the state to strictly comply with its disclosure obligations under the Rules of Criminal Procedure, we find no reversible error here. See Williamson v. State, 263 Ark. 401, 565 S.W. 2d 415 (1978).

Affirmed in part and reversed in par*.

Fogeeman, C.J., concurs.

Purtle, J., dissents.

Hickman, J., would remand the case for a new trial.

John A. Fogleman, Chief Justice,

concurring. I concur, but I beljeve that Allen’s status as an accomplice was a question of fact, rather than one of law. The court’s finding eliminated that question by finding sufficient evidence, aside from the testimony of Allen, to at least connect appellant with the offense.

John I. Purtle, Justice,

dissenting. I have searched the record, and I not any appellant in any manner assisted or encouraged Kathy Workman and Demarious Haney not to appear for trial. I do find considerable evidence that James Allen assisted the girls in going to Tulsa and California.

Betty Workman testified that appellant told Kathy that she should attend the trial. Demarious testified to some extent before taking the Fifth Amendment. Her testimony was that she and Kathy had decided to go to California but, “John did not want Kathy to go.” She further stated that appellant offered to get another attorney for Kathy and get her case postponed.

Appellant is charged as an accomplice to the crime of failure to appear. A part of the charge is that appellant acted with the purpose of promoting or facilitating the commission of the offense of failure to appear. Even if we concede that he knew either Kathy or Demarious were not going to appear, this fact does not render him guilty as an accomplice. He must do something to encourage or to assist them. Purposeful conduct calculated to promote or facilitate the commission of the offense is required for liability to attach to the alleged accomplice.

The only evidence I found in the trial to support this charge was that presented by James Allen, who was initially a co-defendant. For the purpose of the trial, his testimony should be considered that of an accomplice. Therefore, his testimony would not establish the appellant’s guilt.

For reasons stated, I would reverse and dismiss.


text:
    Charles SVESTKA v. FIRST NATIONAL BANK IN STUTTGART
    80-41
    602 S.W. 2d 604
    Supreme Court of Arkansas
    Opinion delivered June 16, 1980
    Rehearing denied August 25, 1980

      Faber D. Jenkins, for appellant.

      Carl J. Madsen and Thweatt & Bayne, by: James M. Thweatt, for appellee.
   John A. Fogleman, Chief Justice.

Appellant Charles was an maker on a note for $30,000 lent .by appellee First National Bank in Stuttgart to Joseph Griffin to purchase a 1966 Gruman AG-Cat airplane. Joseph Griffin executed a security agreement giving the bank a security interest in the plane. After Griffin had failed to pay the debt on May 1, 1977, the extended due date, and had been adjudged a bankrupt, the bank obtained possession of the plane and sold it. The bank credited the proceeds of the sale, less certain expenses incurred by it, to the debt and brought this suit against Svestka for the remaining balance. Trial by jury resulted in a verdict in favor of the bank. Appellant raises three points for reversal. Since we find merit in none of them, we affirm the judgment on the jury verdict.

Appellant first contends that the trial judge erred by failing to give the following instruction to the jury:

The plaintiff- is entitled to recover as part of his damages those charges itemized as license, attorney’s fee, and insurance, if the defendant agreed-to pay said charges.

The items to which appellant refers as a basis for this instruction were expenses incurred in connection with the recovery and sale of the collateral covered by the security agreement, i.e., the plane. The testimony of Robert Neukam, Assistant Vice-President of agricultural lending of appellee bank, was that the plane had been impounded by the bankruptcy court, and the bank paid $427.20 to an attorney employed by it for obtaining a release of the plane by the bankruptcy court, in order that it might be sold and the proceeds applied to the debt to the bank. He also said that the bank paid a premium of $450 for “ground coverage” insurance on the collateral. He testified that, when the bank tried to sell the plane, it was unable to dó so because it could not be licensed, so the bank paid $478.64 to make it airworthy so it could be licensed. No contention is made that these disbursements were unnecessary or the amounts unreasonable. By a line of reasoning we do not comprehend, appellant contends that he was not liable for these charges because he did not sign the security agreement. The question was not one of his liability for the expenses; it was the amount of credit to be given on the note on which he was a co-maker on account of the sale of the collateral. Ark. Stat. Ann. § 85-9-504 (Supp. 1979). Árk. Stat. Ann. § 85-9-203 (Supp. 1979), with reference to attachment and enforceability of a security agreement against a debtor or a third party, which provides that the agreement is not enforceable unless signed by the debtor and the debtor has rights in the collateral, has no application. The bank was enforcing the security agreement against Griffin, not against Svestka, who was not a party to the security agreement and had no interest in the collateral itself. The commercially reasonable and proper costs incurred in reducing the collateral to possession and holding it and preparing it for sale were proper deductions from the proceeds of sale in arriving at the credit to be given on the debt evidenced by the note. The agreement of Svestka, as accommodation maker, was not required. Ark. Stat. Ann. §§ 85-9-502 and 85-9-504 (1) (Supp. 1979).

The allowance of expenses, of preparing personalty which is collateral for sale, after default of the debtor, including the cost of repairs reasonably necessary, is not error. Cornett v. White Motor Corp., 190 Neb. 496, 209 N.W. 2d 341 (1973). Providing insurance coverage pending the sale was certainly commercially reasonable. This insurance afforded protection, not only to the bank, but to appellant, because loss or destruction of, or damage to, the collateral, would have deprived appellant of credit for the proceeds from the collateral which he might reasonably expect. It was a proper cost of holding the plane pending its sale.

The attorney’s fees allowed were not those of collecting the debt, or of conducting the sale of the collateral. Consequently, the statutory provision requiring agreement of the debtor has no application. A secured creditor is entitled to recover reasonable attorney’s fees for services rendered by an attorney in obtaining possession of collateral as a cost of reducing it to possession. A to Z Rental, Inc. v. Wilson, 413 F. 2d 899 (10 Cir.), 163 U.S. P.Q. 14 (1969).

Appellant’s next point for reversal is that the jury verdict is erroneous, because it disregarded the law as to application of payments as stated in an instruction. Apparently the jury was instructed on the calculation of interest where partial payments have been made as set out in Ark. Stat. Ann. § 68-606 (Repl. 1979), but the instruction is not abstracted. We have some difficulty in treating appellant’s arguments because they far exceed the scope of this point as stated. The issue as to application of payments relates to a payment of $1,000 by Griffin at the time of, or shortly after, the execution of an extension agreement by the parties to the original note. Appellant argues that the application made of this payment rendered the note usurious. He also argues that since the note thus became usurious, the trial court should have directed a verdict in his favor.

Appellant did plead, by an amended answer, his conclusion that the transaction was void fo„r usury. The defense is an affirmative one and appellant had the burden of proving it clearly. Hollan v. American Bank of Commerce & Trust Co., 159 Ark. 141, 252 S.W. 359. The issue must have been submitted to the jury, but the instructions on the issue are not abstracted. Appellant argues that the trial court erred in not directing a verdict for him at the close of appellee’s evidence, because the proof adduced was sufficient to allow the court to determine that a usurious rate of interest was sought. We cannot predicate a reversal on the court’s denial of this motion for three reasons. First, the motion was made at the conclusion of the plaintiffs case and not made or renewed after all the evidence had been presented. Lytal v. Crank, 240 Ark. 433, 399 S.W. 2d 670; Campbell v. Bastian, 236 Ark. 205, 365 S.W. 2d 249. Next, the motion by appellant’s attorney was, “At this time I move for directed verdict on the plaintiffs case.” Rule 50, Arkansas Rules of Civil Procedure, requires that one moving for a directed verdict state specific grounds for the motion. This requirement is particularly important in a multiple-issue case such as this.

Finally, there was an issue of fact for the jury on the question argued here by appellant. It turns upon the proper application of a payment of $1,000 by Griffin on December 7, 1976. Appellant says that it should been applied to reduce the principal amount of the debt. Appellee says that it was properly applied to interest accrued between the date of the note and the date of an extension agreement executed by the bank, Griffin and appellant on December 6, 1976. The root of the controversy is the wording of the original note. It was prepared on a printed form. It provided for annual payments on the first day of December, 1976, and the first of each December thereafter until the note was paid in full with interest at the rate of 9.5 per cent per annum from maturity on each installment. The word “maturity” was typed into a blank on the printed form, as was the interest rate. The note provided that failure to pay any payment would mature the unpaid balance, at the option of the bank. When the payment due December 1 was not made, the extension agreement was executed. It recited that “the maturity of a certain note for $30,000.00 dated 6 May, 1976 executed by Joseph Griffin bearing interest from date until maturity at 9.5 per cent, per annum and thereafter until paid at ten per cent per annum, .. the unpaid balance of which is now $30,000, is hereby extended to 1 May 1977 with interest to such date at 9-5 per cent per annum, both principal and interest to bear interest from maturity at the rate of ten per cent per annum until paid.”

Robert Neukam, the bank officer who dealt with the parties on this loan, testified that the bank made the loan to Griffin at the request of Svestka and upon Svestka’s financial strength. He said that an error was made in the preparation of the note in inserting the word “maturity” instead of the word “date” following the interest rate; that it was understood that interest began to run from the day the note was made; that when this error was brought to the attention of the parties at the time of the execution of the extension agreement, it was agreed that interest would be paid up to date, or as nearly so as the makers “could get together;” and that everyone was aware of the mistake and agreed that interest should be paid as originally intended. Neukam stated that, prior to the making of the extension agreement, he had told Griffin and Svestka interest would have to be brought up to date or the bank would not extend the note. According to Neukam this requirement is standard operating procedure with appellee. The quoted language of the extension agreement is corroborative of Neukam’s testimony and the jury obviously found it credible. The extension agreement itself rendered information of the note unnecessary under the circumstances related by Neukam.

Neukam testified that when Griffin paid $1,000, the payment was applied to interest which had accrued up until September 11, 1976, and that he had made a notation on the back of the note that interest was paid up to that date. He would not admit that the $1,000 payment should have been applied to reduce the principal of the note to $29,000.

Appellant concedes that the note and extension agreement, both of which were exhibits to the bank’s complaint, are not usurious upon their face, but asserts that the complaint is. In the first place, the allegations of the complaint, even though not controlled by the exhibits upon which the suit was brought, were completed and explained by them. Arkansas Power & Light Co. v. Kerr, 204 Ark. 238, 161 S.W. 2d 403. In the next place, Neukam testified the balance alleged to be due in the complaint was based upon a calculation of interest, according to an amortization schedule based upon a 360-day year, then used by all banks, but that he had recalculated the amount upon the basis of a 365-day year, to which the bank had changed. The mere fact that suit was brought for an excessive amount does not transform the transaction into a usurious one. Guaranty Financial Corp. v. Harden, 242 Ark. 779, 416 S.W. 2d 287; Mid-State Homes, Inc. v. Knight, 237 Ark. 802, 376 S.W. 2d 556; Sager v. American Investment Co., 170 Ark. 568, 280 S.W. 654. Neukam testified that, when calculated on the basis of a 365-day year, interest accrued and unpaid on the date of sale of the collateral, December 29, 1977, amounted to $3,693,29 instead of $3,-716.71, as he had calculated it originally. Appellant has failed to demonstrate that, as a matter of law, the transaction was tainted with usury. All his calculations ignore interest which would have accrued between September 11, 1976, and December 1, 1977, which, according to the extension agreement, would have also borne interest at the rate of 10 per cent per annum after December 1, 1977. Appellant makes too much of a pretrial statement by appellee’s attorney that “We are willing to waive the interest from May 6 until the extension agreement.” That offer was made as a part of appellee’s pretrial motion for judgment on the pleadings, which came to naught when appellant withdrew from a stipulation he had previousy entered into. The offer was never pursued thereafter and appellant did not think enough of it to ask that it be brought to the attention of the jury in any way.

Appellant’s third point for reversal is that the trial judge erred in failing to direct a verdict in his favor at the close of appellee’s case because appellee had failed to perfect a security interest in certain accounts receivable and thereby had discharged appellant from any liability on the note. The “accounts receivable” were those arising from a contract between Griffin and Harold Huntsman. Here again, the motion for directed verdict was waived by appellant’s failure to move for such a verdict at the conclusion of all the evidence. And again appellant failed to alert the trial judge to the basis for his motion by specifying this ground as required by Rule 50 of the Arkansas Rules of Civil Procedure.

Neukam testifed that, at the time of the extension agreement, he had been talking with Huntsman, a “large” farmer in the Bald Knob area and other places, who had told Griffin that Griffin could have all Huntsman’s business n crop dusting and other such agricultural services. He said that the bank was unwilling to go along with Griffin’s proposal to extend the due date of the loan to May 1, 1977, upon the strength of an assignment of the income Griffin might receive from Huntsman, because the bank did not know whether Huntsman would even be farming. Neukam stated that Huntsman’s application to appellee for a sizeable crop loan had been rejected and that Huntsman’s application to numerous others had also been rejected. For that reason, he felt that the bank could not then take an assignment. There was a discussion of accounts receivable from Huntsman in the presence of Svestka before the extension agreement was signed, and Neukma testifed that Griffin had said that the money he received from Huntsman would help significantly in the payment of the debt to the bank. Neukam never advised Svestka that he had not taken a security interest in the accounts receivable. According to Neukam, Svestka came to the bank and told him that he did not think Griffin was going to pay the debt, but did not say that the Huntsman farm account was being used to pay someone other than the bank. The bank had learned this by February 17, 1977, because its senior vice-president wrote a letter to Griffin, reminding him that he was to give the bank an assignment of accounts receivable from Harold Huntsman & Sons and that he had broken his agreement by giving an assignment of this income to Lonoke Production Credit Association. The bank’s position, stated in this letter, was not subsequently communicated to Svestka.

Appellant’s basic argument on this point is that the bank had a duty under Ark. Stat. Ann. § 85-3-606 (1) (b) (Add. 1961) to exercise reasonable means to protect him by timely perfecting a security interest in the Huntsman account.

If Neukam’s testimony is to be believed, and the jury thought that it was, the bank was not in a unique position to control disbursement of funds from the proceeds of a loan to Huntsman, as appellant urges, because it made no loan to Huntsman. The bank did not impair the collateral, because it never had it, and had, at best, only an agreement by Griffin to give this collateral. At the most, the question of discharge was one of fact for the jury and the testimony was not such as to justify a directed verdict.

The judgment is affirmed.


author: John A. Foogleman, Chief Justice. John I. Purtle, Justice,

text:
    Dianna SCHNEIDER v. STATE of Arkansas
    CR 80-52
    599 S.W. 2d 730
    Supreme Court of Arkansas
    Opinion delivered June 16, 1980
    Rehearing denied July 7, 1980

      Wiggins, Christian & Garner, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   John A. Foogleman, Chief Justice.

Appellant Dianna Schneider was sentended to five years’ imprisonment upon revocation of her probation on a sentence imposed on January 25, 1977, after she had pleaded nolo contendere on a charge of unlawful possession of controlled substances. On her appeal she asserts three errors, one of yyhich questions the sufficiency of the evidence. Two of them question the propriety of the trial court’s denial of her motions to suppress evidence. We find no merit in them and affirm.

The prosecuting attorney filed a petition to revoke Ms. Schneider’s probation, alleging that she had violated the terms of her probation in that she had, on February 3, 1979, committed the offense of possession of marijuana with intent to deliver, that, during her probationary period, she had actively engaged in the selling of marijuana and other drugs, and that she had committed the offense of possession of a firearm by a felon. It was on this petition that the probation was revoked, after a hearing before the trial judge.

We will not consider her points for reversal in the order they were argued; instead, we will first consider her motion to suppress the evidence of a telephone conversation, allegedly with her.

Detective Glen Yates, of the Narcotics Division of the Fort Smith Police Department, and other police officers arrested William Rhodes and Phillip Bruce at about 4:15 p.m. on February 3, 1979, for sales of marijuana, and took them to the police department where they were interrogated. Apparently, Rhodes and Bruce implicated Ms. Schneider as the source of their supply. Bruce, upon the urging of Detective Yates, placed a telphone call, which was recorded on tape. This recording disclosed a conversation by Bruce with a person who answered to the name Dianna and whose voice was identified by Yates as that of appellant. It tended to incriminate her as a supplier of marijuana. The trial judge, after having denied a motion to suppress the evidence of this conversation, considered it, along with other evidence, in finding that Ms. Schneider had violated the terms of her probation.

It was asserted by appellant that the telphone conversation was intercepted without the consent of either of the parties to it, and, consequently, was inadmissible because of 18 U.S.C. § 2511 (2) (c), which makes the interception of such a conversation lawful, if one of the parties has given his prior consent. The state contends that Bruce did consent, but appellant counters that the consent was not voluntarily given. The evidence on this point is somewhat conflicting. Yates testified that Bruce agreed to make the telephone call 10 to 15 minutes prior to its being made and that Bruce was told, before the call was placed, that the conversation would be recorded and probably used in court. He said that Bruce appeared normal, but a little frightened, due to the fact that he had been arrested. Yates stated that he noticed nothing unusual about Bruce’s demeanor, and that Bruce showed no signs of having lost control of his “facilities” by reason of having marijuana or LSD. He said that Bruce exhibited none of the classical symptoms of being under the influence of LSD. He stated that Bruce had no objection to the recording of the conversation and that no promises were made to him that things would go lighter with him if he would cooperate. Yates said that Bruce was advised that everything he did would be reported to the prosecutor’s office.

Bruce testified that he made the telephone call at the suggestion of Yates but consented to its being recorded only because Yates told him the recording would be made so the officers could hear it and it would never leave the room in which it was made. Bruce said that he did not think he would have made the call if he had not been promised it would not be used. He also said that he was promised that the officers would talk to the prosecuting attorney for him, and that Yates promised to try to get the prosecuting attorney to go easy on him. Bruce testified that, at the time, he was under the influence of LSD and marijuana and was laughing and shaking uncontrollably, but did not hallucinate. He did not remember whether he had any problem talking. He said that he was willing to get out of the jam any way he could.

The trial judge specifically found that Bruce had voluntarily consented to the recording of the telephone call. Assuming, without deciding, that Congress can adopt an exclusionary rule in this field governing the state courts, we are unable to say that the trial judge erred. It has been held that a defendant who contends that the caller’s consent was obtained through a hope for leniency has the burden of establishing that consent was not voluntary by showing that the informer’s will was overcome by threats or improper inducement amounting to coercion or duress. United States v. Hodge, 539 F. 2d 898 (6 Cir.), cert. denied sub nom Robertson v. United States, 429 U.S. 1091, 97 S. Ct. 1100, 51 L. Ed. 2d 536 (1977). It has been said that, even though it is unlikely that one would permit the police to intercept a conversation unless he expected something from the police in return, the consent is not involuntary, so long as pressure is not intiated by the police for the purpose of overbearing the will of the party. United States v. Osser, 483 F. 2d 727 (3 Cir.), cert. denied 414 U.S. 1028, 94 S. Ct. 457, 38 L. Ed. 2d 321 (1973); United States v. Baynes, 400 F. Supp. 285, aff'd. 517 F. 2d 1399 (3 Cir., 1975). It has also been held that, in order to show voluntary consent, it is not necessary to make the showing that would be required to show consent to a search; it is only necessary to show that the caller proceeded after knowing “what the law officers were about.” United States v. Bonanno, 487 F. 2d 654 (2 Cir., 1973).

The question resolves itself into one of credibility and resolution of conflicts. Since it does, we must defer to the superior position of the trial judge. State v. Osborn, 263 Ark. 554, 566 S.W. 2d 139; Whitmore v. State, 263 Ark. 419, 565 S.W. 2d 133; Horton v. State, 262 Ark. 211, 555 S.W. 2d 226.

We now turn to the question of admissibility of certain firearms, some marijuana and money seized as a result of a search, pursuant to a warrant issued by a municipal judge upon the affidavit of Detective Yates. At the outset, we reject appellant’s contention that the trial court erred in placing the burden of showing that the warrant was improperly issued upon her. Appellant relies upon Lunsford v. State, 262 Ark. 1, 552 S.W. 2d 646. In that case, we held that the state bore the burden of establishing that a search warrant was issued in compliance with the law by producing the required written evidence relied upon by the issuing magistrate as establishing probable cause. The decision in Lunsford was based upon our decision in Russ v. City of Camden, 256 Ark. 214, 506 S.W. 2d 529. In Russ, we simply held that, in order that the accused might have the opportunity to assail the validity of a warrant upon which the state seeks to justify a search and the affidavit upon which the warrant was based, the state has the burden or responsibility of producing the warrant and affidavit or to follow approved procedure for establishing their contents. This is necessary because the issuance of the warrant is not an adversary proceeding and the accused may have never seen either the warrant or the affidavit, whose validity he may attack on a motion to suppress evidence seized. When the warrant and affidavit appear to be facially valid, there is a presumption that everything essential to the issuance of the warrant has been done. Albright v. Karston, 206 Ark. 307, 176 S.W. 2d 421. The burden of showing the invalidity of the warrant and its supporting documents was upon appellant. Prichard v. State, 258 Ark. 151, 523 S.W. 2d 194.

Appellant states that the sufficiency of the affidavit is the only issue. She says that there were these deficiencies in the affidavit:

1. The statements by Rhodes and Bruce were hearsay because neither were under oath before the judicial officer who issued the warrant, but the affidavit contained nothing to show their reliability or the reliability of the information they gave.
2. There was nothing in the affidavit to identify the voice on the tape recording of the telephone conversation as that of appellant.
3. The source or reliability of Yates’ statement that he had, during the course of his investigations, received information that appellant was then active in the drug traffic in Ft. Smith, and the statement itself was conclusory.
4. There was no statement of the underlying facts and circumstances from which the judicial officers could determine that the objects of the search were where the informants said they were.
5. The affidavit does not reveal that affiant speaks with personal knowledge of the matter contained there, that is: whether he personally observed Bruce call anyone; the identity of the person who identified appellant as the person called, the telephone number called and the address given as the residence of appellant.

Of course, since appellant had the burden of showing the invalidity of the search warrant, any statement of fact, made as such, in the affidavit must be taken to be within the personal knowledge of the affiant, unless the contrary is shown.

The affidavit contains a statement that Bruce called Schneider at 782-2459 and she stated she had a quantity of marijuana that she would sell him at 6:30 p.m., that the call was recorded and the tape was attached to the affidavit as an exhibit. Yates testified that the judge listened to the tape before issuing the warrant. Yates also testified that he had recognized appellant’s voice on the tape.

The statement that Yates had received information that appellant was currently active in the drug traffic seems to us to be no more than background for the information he obtained from Rhodes and Bruce. This information given by them was sufficient basis on which a magistrate might reasonably believe that there would be marijuana at appellant’s house at 1800 S. 16th Street in Ft. Smith. The source of information about the house and the address was identified in the supporting papers. A statement given by Rhodes to the prosecuting attorney was attached to the affidavit as an exhibit. Yates stated in his affidavit that this statement to the prosecuting attorney was made under oath.

The reliance of Yates and the municipal judge on the statement of Rhodes under oath was justified. In his statement, Rhodes stated that, on 10 or 12 different occasions over a period of months, the last of which was only two days prior to his statement, he had obtained marijuana from Ms. Schneider without paying her, sold it and then took her the money he received for it. He also said that he knew that two others had been arrested while in possession of marijuana furnished them by appellant. The incriminating nature of this statement was a sufficient basis for finding it reliable. State v. Lechner, 262 Ark. 401, 557 S.W. 2d 195; Baxter v. State, 262 Ark. 303, 556 S.W. 2d 428; Maxwell v. State, 259 Ark. 86, 531 S.W. 2d 468.

It is true that the prosecuting attorney advised appellant’s attorney about one week prior to the hearing on the petition for revocation that Rhodes had stated in an interview that his statement was in error, and while part of it had a basis of fact, the police were very liberal in writing the documents. The prosecuting attorney was unable to remember any “specifics.” Four days later, the motion to suppress was filed. Two days after that, the hearing was held. Rhodes refused to testify at the hearing when his attorney invoked his privilege against self-incrimination under the Fifth Amendment to the United States Constitution. Appellant’s counsel then made a proffer of answers he anticipated that Rhodes would have given if he had testified. These answers would have substantially contradicted the statement signed by him, but they cannot be taken as evidence.

It is true that the United States Supreme Court has held that a search warrant must be voided and its fruits excluded, if a defendant establishes, by a preponderance of the evidence, that a statement essential to the establishment of probable cause for a search was false and was knowingly and intentionally, or with reckless disregard for the truth, included in the affidavit. Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). Yates testified that, at the time he obtained the search warrant, there was nothing in Rhodes’ statement which he knew to be untrue. Appellant did not make the required showing.

Appellant’s contention that the evidence was not sufficient to support the revocation of probation must fail, in view of our rejection of her arguments that evidence considered by the trial court should have been suppressed.

The state has relied, to some extent, upon Ark. Stat. Ann. § 41-1209 (3) (b) (Repl. 1977), which provides that the trial court may permit the introduction of any relevant evidence of the alleged violation of the terms of probation, regardless of its admissibility under the rules governing the admission of evidence in criminal trials. Since we have held that the search was not unreasonable, we have not considered this statute. It is true that the United States Supreme Court has not held the exclusionary rule to be applicable to probation revocation proceedings. The state also correctly points out that the court has shown a disinclination to extend the impact of the exclusionary rule. See, e.g., Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976); United States v.Janis, 428 U.S. 433, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976); United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). The great majority of jurisdictions that have considered the question have taken the view that evidence obtained as the result of an unreasonable search and seizure is admissible in a probation revocation hearing. See Annot. 77 ALR 3d 636, 30 ALR Fed. 824. The refusal to apply the rule in cases where the search was conducted in a good-faith reliance upon a warrant later proven defective has some appeal as an accommodation of the societal interest in requiring strict compliance with conditions of probation with the deterrence of illegal police action. We have previously indicated that the exclusionary rule might not have full impact in these proceedings. Smith v. State, 241 Ark. 958, 411 S.W. 2d 510.

Since the application of the statute upon which the state relies would involve consideration of the relation of Fourth Amendment rights, as protected by the exclusionary rules, to the validity of the statute, this question raised by the state is reserved for another day, in keeping with our rule against deciding constitutional questions when it is not necessary to the disposition of the case before us.

The judgment is affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I cannot agree with on There was probably ample evidence other than the telephone conversation and the fruits of the search to permit the court to revoke the suspended sentence. However, I would exclude the fruits of the search because the warrant does not measure up to the requirements of the constitution or our rules.

The affidavit for the search warrant is absolutely void of personal knowledge on the part of the affiant. It consists of hearsay, conclusions, rumors, and bits of history about the appellant. There was no proven reliability of the informants; in fact, they had never been used by this officer or any other officer, as far as it can be determined from the record.

We should hold the exclusionary provisions of the Fourth Amendment to the United States Constitution do not apply in cases relating to revocation of probation, or we should reverse and remand the case for further consideration.


text:
    AUTOMOTIVE SUPPLY, INC. v. Jim POWELL et al
    80-46
    599 S.W. 2d 735
    Supreme Court of Arkansas
    Opinion delivered June 16, 1980
    reversed.

      Boyce R. Davis, for appellant.

      Murphy & Carlisle, by: John 'William Murphy and Spencer, Spencer & Shepherd, P.A., for appellees.
   George Rose Smith, Justice.

The appellee Evelyn Sue Powell asserts a homestead exemption in certain lands as against a prior judgment obtained by Automotive Supply against Mrs. Powell’s husband, Jim Powell. The circuit court was mistaken in sustaining the asserted exemption as to Mrs. Powell’s interest in the land.

Automotive Supply obtained a $2,870.16 judgment in the Washington Circuit Court against Jim Powell, the judgment being entered of record on February 16, 1978. On March 31, 1978, the land in question, then unimproved, was conveyed to the Powells as tenants by the entirety. On April 11 Powell conveyed his interest in the land to his wife. Thereafter the couple built a home on the property, which was completed and occupied by them not earlier than the following winter. On a motion for a determination of priority of liens the circuit court held that Automotive Supply’s judgment is a first lien as against other lienholders, but is subordinate to Mrs. Powell’s homestead claim.

Automotive Supply’s judgment against Jim Powell became a lien against his interest in land acquired after the entry of the judgment. Ark. Stat. Ann. § 29-130 (Repl. 1979); Trustees R. E. Bank v. Watson & Hubbard, 13 Ark. 74 (1852). That being true, when Powell conveyed his interest to his wife, her two estates in the land did not merge to defeat Automotive Supply’s intervening equity. Beauchamp v. Bertig, 90 Ark. 351, 119 S.W. 75, 23 LRANS 659 (1909). She therefore received his estate in the land subject to the judgment lien. She had the burden of proving a sufficient occupancy of the land to establish a homestead. Chastain v. Ark. Bank & Tr. Co., 157 Ark. 423, 249 S.W. 1 (1923). Actual occupancy of the land, not a mere intention to occupy it in the future, is essential to the impressment of the homestead character. Shell v. Young, 78 Ark. 479, 95 S.W. 798 (1906). Since the Powells could not and did not occupy the land until months after the appellant’s lien had attached to Jim Powell’s interest, that interest cannot be claimed as exempt by Mrs. Powell, who acquired it subject to that lien.

Reversed.