author: Conley Byrd, Justice. Darrell Hickman, Justice,

text:
    Arthur B. SAUNDERS et al v. CITY OF LITTLE ROCK
    77-103
    556 S.W. 2d 874
    Opinion delivered October 3, 1977
    (In Banc)
    [Rehearing denied November 21, 1977.]

      Purlle, Osterloh & Weber, by: John /. Purtle, for appellants.

      Rose, Nash, Williamson, Carroll, Clay & Giroir, and Joseph C. Kemp and Riddick Riffel, for appellee.
   Conley Byrd, Justice.

Appellants, Arthur B. Saunders, et al appeal from an order of the circuit court upholding the annexation of 55 square miles of territory to the City of Little Rock. Appellants, while conceding that a portion of the 55 square miles is subject to annexation, contend that some five to ten thousand acres of mining lands and some 12 square miles of flood lands do not qualify for annexation to the City of Little Rock within the meaning of Ark. Stat. Ann. § 19-307.1 (Supp. 1975), which provides:

“Any municipality may by vote of two-thirds of the total number of members making up its governing body adopt an ordinance to annex lands contiguous to said municipality, provided the lands are either (1) platted and held for sale or use as municipal lots; (2) whether platted or not, if the lands are held to be sold as suburban property; (3) when the lands furnish the abode for a densely settled community, or represent the actual growth of the municipality beyond its legal boundary; (4) when the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; or (5) when they are valuable by reason of their adaptability for prospective municipal uses.”

The facts are virtually undisputed. Everybody that testified on the subject acknowledged that the mining lands were reserved by the owners for mining purposes — i.e., after annexation it will remain as vacant mining land. During oral argument the City of Little Rock candidly admitted that the mining lands did not fall into items 1, 2 or 3 of the statute, supra, for annexation purposes. The City insists that the mining lands qualify under items 4 and 5 of the statute, supra, for purposes of annexation. In its brief the City refers to the following testimony of Mr. C. V. Barnes, to-wit:

“A. Well, the city is interested in regulating and controlling mining for several reasons. One is that in a mining area, that area should be principally devoted to that activity, it should be reserved for the activity and currently, there is no control there and as a result there has been residential development, one of which was mentioned by others today in testimony, pop up in the middle of the mining area.
Q. What happens when that occurs?
A. Well, I can tell you the status it is in right now, they are both in bankruptcy.
Q. So no one gains?
A. No one gains, that’s right, because you’ve got depressed property so what is there that generated ad valorem taxes is affected, certainly the developer doesn’t gain because he doesn’t have a viable development and the people who may have purchased the property in the development unknowingly certainly have suffered a major loss.
Q. Do you forsee residential development will deteriorate and become sub-standard?
A. That would be the natural tendency.
Q. Thus becoming a burden on the local government?
A. Becoming a burden on whatever development is in that addition, yes sir. Now, by the same token, people in the mining industry or business are just as concerned because of what single family residential development in the area affects their outfit, so it’s a two way street.”

Likewise, with the flood lands the facts are virtually undisputed. No subdividing is permitted below the 100 year flood elevation now and if annexed to the City, the City will prevent any building below the 100 year flood elevation. No construction or fill would be permitted in the floodway proper by the City. The City itself has no plans for draining the flood lands but like everybody else is relying upon the U.S. Army Corps of Engineers. The Corps of Engineers has devised a number of plans for flood control, one of which has been adopted by the City but nobody is in a position to predict when and if any action will be taken. Even under the Corps of Engineers’ plan a substantial portion of the flood plains will remain below the flood stage that could only be used by the City for urban recreational use. The testimony of Mr. C. V. Barnes, an expert witness called by the City on the prospect of channelling Fourche Creek is as follows:

“A. Well, of course, remember you had about a four fingered question and we started to work on finger number one which we never did get down to the other three or four fingers. Remember this, that at some point in time, and you, I think asked me to explain to you what would happen at some time in the future, at some point in time, Fourche is going to be channelized and the Corps of Engineers will, or some other agency, will determine what the width of that channel is, but that channel will be fairly narrow compared to the flood plain as shown on this exhibit four, Plaintiff’s Exhibit 3, beg your pardon, so when that time comes, the area outside that channelization in all probability will be reclaimed and used. Now, the definition of value, as it’s been explained to me in the books, I don’t know whether Webster says this, is the present worth of future benefits, so when things, in other words, that’s the way people look at land is what I do today based on what I get tomorrow.
Q. That would be valuable in that sense by reason of their assessability to streams in the area.
A. Well, you know there’s no reason in my mind to assume that the people in Little Rock are more backward or less progressive than the people in Dallas, Texas. Now, it all gets to be when. I can’t answer that and I will admit that it is speculative because I can’t answer it, but at some point in time, maybe in my life time, maybe not, something is going to happen to Fourche Creek and you are going to see Fourche Creek bottoms which you are so concerned about now as the flood plain, having potential for development just like as happened in Dallas and it’s also been my observation over 50 odd years of making them, that if you want to see what’s going to happen in Little Rock, Arkansas ten or twenty years from now, you go look and see what’s happening in a community that is now the size of what Little Rock will be based on that growth that’s going to take place in the intervening time.”

Dwight Linkous, a member of the board of directors for the City of Little Rock, testified that the City had obligated itself to pay $75,000 over a three year period to some professional consultants, “Booze-AUen-Hamilton,” to make a study concerning the orderly growth of the City of Little Rock. Those consultants had recommended that the flood plains and mining areas be excepted from the City.

We agree with the City that to annex lands a municipality “must show that the lands to be annexed meet one of the five criteria set out in the first paragraph of the statute.” Furthermore, we note that the statutory criteria is taken almost verbatim from Vestal v. Little Rock, 54 Ark. 321 (1891). With respect to annexation of lands by a municipality, in Vestal v. Little Rock, supra, we said:

“. . . [W]e will state what we conclude from the many authorities to be the correct rule to guide in determining an application for annexation.
1. That city limits may reasonably and properly be extended so as to take in continguous lands, (1) when they are platted and held for sale or use as town lots, (2) whether platted or not, if they are held to be brought on the market and sold as town property when they reach a value corresponding with the views of the owner, (3) when they furnish the abode for a densely-settled community, or represent the actual growth of the town beyond its legal boundary, (4) when they are needed for any proper town purpose, as for the extension of its streets or sewer, gas or water system, or to supply places for the abode or business of its residents of for the extension of needed police regulation, and (5) when they are valuable by reason of their adaptability for prospective town uses; but the mere fact that their value is enhanced by reason of their nearness to the corporation, would not give ground for their annexation, if it did not appear that such value was enhanced on account of iheir adaptability to town use.
2. We conclude further that city limits should not be so extended as to take in contiguous lands, (1) when they are used only for purposes of agriculture or horticulture, and are valuable on account of such use, (2) when they are vacant and do not derive special value from their adaptability for city uses.”

The annexation of lands for purposes of taxation only is prohibited by the Constitution of Arkansas, Art. 2 § 22 and Art. 2 § 23. See Waldrop, Collector v. Kansas City Southern Railway Company, 131 Ark. 453, 199 S.W. 369 (1917), Arnold v. McCarroll, 200 Ark. 1094, 143 S.W. 2d 35 (1940), Town of Ouita v. Heidgen, 247 Ark. 943, 448 S.W. 2d 631 (1970) and Parrish v. City of Russellville, 253 Ark. 1000, 490 S.W. 2d 126 (1973). In the last mentioned case, we stated:

“Furthermore, as recently as Town of Ouita v. Heidgen, 247 Ark. 943, 448 S.W. 2d 631 (1970), (involving some of these same lands), we pointed out that where it is manifested that the owners of land taken into a city can derive no benefits from being placed within the incorporated limits, such action amounts to the taking of private property for public use in the form of taxation without giving any compensation.”

Other courts are in accord. See City of Olivette v. Grasler, (Mo.) 369 S.W. 2d 85 (1963).

While there is testimony that the City is using one or two abandoned bauxite pits for a dump, this cannot tolerably be said to constitute substantial evidence that the whole mining area — somewhere between 7.8 and 15.6 square miles — is adaptable to “prospective municipal uses.” This is especially so, when the City admits that the area is reserved by the owners for mining purposes only and that if the annexation is upheld, the City intends to zone the whole area for mining purposes, Furthermore, since the City acknowledges that the area is vacant, not held for use as municipal lots or to be sold for urban uses and that the same use will be made of the lands for mining purposes after annexation as before annexation, we fail to see how the City can logically contend that the lands “are needed for any proper municipal purpose such as the extension of needed police regulation.” The testimony of Mr. Barnes upon which the City relies falls far short of showing that the lands are adaptable for prospective municipal uses under item (5) of the statute, supra. To say that mining lands, already reserved and being used for mining purposes, should be zoned for mining purposes only, cannot be said to be substantial evidence that the lands “are needed for any proper municipal purposes such as for the extension of needed police regulation.” A city’s desire to zone vacant lands outside a city that do not derive a special value from their adaptability for city uses is not a needed police regulation for any proper municipal purpose, Vestal v. Little Rock, supra — otherwise the only limitation on annexation would be the state’s boundaries.

Since the erroneous inclusion of the mining lands voids the annexation in toto, City of Little Rock v. Findley, 224 Ark. 305, 272 S.W. 2d 823 (1954), it is not necessary for us to give a full discussion to the issue involving the flood plains. However, we point out that, on the record before us, the annexation of the total 12 square mile area is highly questionable in view of the following facts: (1) The lands in general cannot be subdivided or otherwise adapted to city purposes until Fourche Creek is channelized; (2) the channelization of Fourche Creek is acknowledged by the City’s expert witness; Mr. Barnes, to be speculative; (3) even after channelization of Fourche Creek there will remain a substantial acreage unsuitable for any city purpose or use other than a faint suggestion that they could be used for urban recreation — a use for which the City has no plans and no funds with which to acquire the lands.

Reversed and dismissed.

George Rose Smith and Hickman, JJ., dissent.

Darrell Hickman, Justice,

dissenting. This is the second trial and appeal of essentially the same case. The first time we decided that the proposed annexation of 55 square miles by the City of Little Rock was illegal because it included some agricultural property contrary to Arkansas law. Arthur B. Saunders, et al v. City of Little Rock, 257 Ark. 195, 515 S.W. 2d 633 (1974).

The Arkansas Legislature amended the law that caused the first annexation to be illegal. Act 298, 1971 Ark. Acts, as amended by Act 309 and Act 904, 1975 Ark. Acts. The City of Little Rock again proposed the same area to be annexed, the issue was submitted to the same voters and, again, it was approved. There was another trial on essentially the same issues and facts. The trial court upheld the annexation and from that decision comes this appeal.

Many of the legal arguments made in the first case were repeated in this case. The same argument was made about the Fourche Creek flood plains located in the annexed area. In fact, a major part of the evidence in both cases was whether the flood plains of the Fourche could be annexed. Previously, we did not rule on that argument or any other of the many other arguments made, but instead held the annexation illegal for only one reason — that some of the lands were used for agricultural purposes. Arthur B. Saunders, et al v. City of Little Rock, supra.

The record in this appeal, about 400 pages, is concerned mostly with the feasibility of Little Rock annexing the Fourche Creek flood plains. Again, we do not rule on this issue. At least eighteen objections to the annexation were raised at trial and only one of them mentioned that some of the land was used for mining purposes. The majority have decided that this annexation was illegal because some of the lands are “mining lands.”

The majority says that there was not substantial evidence to support the inclusion of “five to ten thousand acres of mining lands.” (There was no testimony offered about the size of the mining tracts or areas.) The reasoning is that it was not shown these lands could be used by the city or are needed for proper municipal purposes.

The law gives a municipality a right to annex contiguous lands if they are: (1) platted and held for sale or use as municipal lots; or, (2) platted or not, are to be sold as suburban property; or, (3) are the abode for a densely settled community or represent the actual growth of the municipality beyond its legal boundary; or, (4) are needed for any proper municipal purposes such as the extension of needed police regulations; or, (5) are valuable by reason of their adaptability for prospective municipal uses. Ark. Stat. Ann. § 19-307.1 (Supp. 1975).

The only evidence in the record about the so-called mining lands is favorable to the City of Little Rock. In addition to the testimony of C. V. Barnes, quoted in the majority opinion, about the development of residential and mining properties in the same area, there was other testimony. Mr. Jim Finch, the city planner, testified:

. . . The mining areas, as it has been stated here again several times, present an economic resource for the community and state as a whole. But there have been to our knowledge, encroachments into prime mining areas and there have been mining encroachments up to residential areas. The plans again, that the city has might only be reflected in that we have several times worked on the development of land use regulations for mining areas that would protect the mining interest and would protect residential interest and mining areas. We do not have those adopted simply because it is not really an issue not being in the city. The city has expressed an obvious interest in some of that area through the use of those old mining pits for the landfill sites to help reclaim the land.

He went on further to state:

. . . The residents in this area propose, the residents propose obviously to make certain use of their property now either in the mining area, flood plain or whatever and, in order to protect and encourage orderly growth in those areas, to see that transportation networks and utility networks, things of that nature are extended in an orderly fashion, compatible kinds of uses develop that you don’t have single family areas developing right in the middle of the areas where they are doing heavy mining and blasting and other kinds of industrial activities and to see that residential development does not encroach into prime mining areas would seem to be an interest of the city of Little Rock in as much as the mining interest does represent a substantial economic interest for the city.

Mr. Dwight Linkous testified:

. . . The bauxite pits as we know there were presently used as a land fill site and we are negotiating for another one. The property is being restored to a much more highly cost per acre and return to the owner than it would have been if it were not used for these purposes. I can see potential in the usage of all of the areas even the worse flood plain areas of Fourche Creek.

Mr. J. William Perry, the executive vice president of the Little Rock Chamber of Commerce, testified that in his opinion the city needed the additional 55 square miles to attract industry to the area. This testimony was in addition to the testimony of the Chief of Police and the Chief of the Fire Department of the City of Little Rock that it was necessary to annex all of this contiguous area to provide for the efficient and proper administration of their departments.

These statements, uncontradicted by any other evidence, are offered in conjunction with other evidence that the entire 55 square miles should be included because the city is growing in that direction and the land is best suited for urban development.

The argument is presented on appeal that the trial court improperly found that the mining lands could have a valid municipal use or could be used for a city purpose. To uphold this argument despite the evidence in the record is to hold that mining lands per se cannot be annexed. The same could be true of any business such as a service station or grocery store. These businesses would not necessarily have to qualify as platted, suburban or densely settled lands. It could depend on where they are located. Any business, mining or otherwise, adjacent to a growing city could be annexed legally under either provision (4) or (5) of the Arkansas law.

The majority, in effect, is holding that the city must bypass certain lands and create numerous pockets around which the city will grow. Although the majority alludes simply to “five or ten thousand acres of mining land,” there is no instruction given to the parties whether this includes any and all mining land listed on certain exhibits; whether that would include land that is held subject to an oil and gas lease; whether the mining land is in one block or fifty; or whether it is five or ten thousand acres.

Not only does the majority fail to identify the lands to be excluded, it also fails to answer other issues raised. The majority indicates that the annexation of the Fourche flood plains, if it comes before us again for the third time, would be illegal; however, it does not say so. I must take issue with the majority’s failure to rule on all the issues before the court in the previous suit and in this suit. The parties have been put to a great deal of expense and trouble in this case and are entitled to specific directions from the court.

The majority opinion ignores the fact that the City of Little Rock is a growing city and that, if anything, the annexation proposal is conservative. The evidence in the case is overwhelming that the city will offer full services to all the annexed area and that the property is needed within the corporate city limits for an orderly growth of the area.

The majority opinion fails to recognize that zoning is a valid municipal purpose that is desirable in most instances and protects all property owners against haphazard development of land.

The record contains a good example of how an area should not develop. The Rodney Parham Road area near the City of Little Rock was not annexed in time, and according to the testimony, has become a “nightmare” to city officials who have to cure the traffic, development and congestion ills that still exist in that area.

It may be that the majority has an aversion to annexation and zoning. These powers can be abused but there is no evidence in this record that Little Rock has abused or intends to abuse its powers. There is no evidence in the record, although the majority infers otherwise, that the City of Little Rock is annexing lands simply to gain revenue. The evidence, viewed as a whole, shows that the city has a plan for the orderly growth of its corporate limits consistent with the actual growth and the annexation will benefit all of the property owners in the area annexed.

There is not a shred of credible evidence in the record as to why the contiguous mining interests should not be annexed. Not a single owner of a mining interest testified during this trial. The majority mentions a study which recommended against including the flood plains and mining lands. However, that study was not a part of the record and normally the majority does not base its decisions on hearsay evidence not before it.

In summary, I can find no legal justification for the decision of the majority. I would affirm the case.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Ross Allen MILBURN v. STATE of Arkansas
    CR 77-90
    555 S.W. 2d 946
    Opinion delivered October 3, 1977
    (Division II)

      Skillman, Durrett & Davis, for appellant.

      Bill Clinton, Atty. Gen., by: Robert J. Govar, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted of possession of marijuana with intent to deliver and on appeal we reversed. Milburn v. State, 260 Ark. 553, 542 S.W. 2d 490 (1976). Upon retrial the court, sitting as a jury, found appellant guilty of the same offense and assessed his punishment at nine years’ imprisonment and a fine of $15,000. Appellant contends that the evidence was insufficient “to identify beyond a reasonable doubt that a green vegetable material” introduced into evidence was marijuana and, therefore, he was entitled to a directed verdict. Of course, on appellate review, it is firmly established that we consider only that evidence which is most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975).

Here the issue is whether the substance seized from appellant was marijuana. Approximately nine pounds of green vegetable material were found in the trunk of appellant’s car and on his person by a police officer. This officer testified that, based on his training and experience, the material was marijuana. The material was analyzed at the Arkansas Department of Health, using three tests; i.e., microscopic, Duquenois - Levine and thin layer chromatography. The state’s expert witness testified that these tests by him produced positive results for marijuana. However, appellant’s expert witness maintains these tests are individually and collectively insufficient to identify “beyond a reasonable doubt” the material as marijuana. Appellant recognizes that it is usually concluded by forensic analysts that the microscopic test, combined with the DuquenoisLevine color test, >s specific for marijuana. Admittedly, appellant’s expert witness did not test the material as to whether it was marijuana and could not confirm or refute that it was marijuana. It was for the court, sitting as a jury, to resolve any conflicts in the evidence and the credibility of the witnesses. In our view there is ample substantial evidence, when viewed most favorable to the appellee, to support the verdict.

However, we are not unmindful of appellant’s argument that the results of the tests made by the state’s expert witness wdre inadmissible hearsay or a violation of the best evidence rule. The state’s expert witness testified that the contraband he tested at the state laboratory was identical to the marijuana sample afforded the laboratory by the U.S. Drug Enforcement Administration. Appellant contends that since the state’s expert witness did not test the reference standard himself or have personal knowledge that it was marijuana, his testimony as to the results of his tests was based upon what others had told him and, therefore, inadmissible hearsay. In Ark. State Highway Comm. v. Russell, 240 Ark. 21, 398 S.W. 2d 201 (1966), where a proper foundation is laid, wfe said: “It has repeatedly been held that expert or lay testimony is competent even though it is based wholly or partly upon hearsay.” Further, when an expert witness customarily relies upon reports or the standards in the practice of his profession, his testimony is admissible. 32 C.J.S. Evidence § 546. Here the state’s chemist Was familiar with the custom of his laboratory and those in other states to verify or validate a reference sample, as here, before using it. In the case at bar, a proper foundation was established and we cannot say the trial court abused its discretion in holding the expert chemist’s testimony admissible.

It is next argued that the court erred in admitting the testimony of the arresting officer pertaining to his aural and visual identification of the green material he confiscated. It is contended that the officer was not competent to give his opinion and, further, his testimony was based upon inadmissible hearsay. Here the arresting officer, a six year veteran of the State Police, was experienced in detecting marijuana smoke and plants in various, forms; had testified in court on numerous occasions in the identification of marijuana; and had special training in detecting and identifying marijuana. When he arrested appellant, he could detect the odor of marijuana smoke about the car and his clothing. He observed and removed the material in evidence from appellant’s automobile and his person. The trial court correctly held that the officer was competent to state his opinion. Gordon v. State, 259 Ark. 134, 529 S.W. 2d 330 (1976); and Sims v. State, 255 Ark. 87, 499 S.W. 2d 54 (1973).

It seems unfortunate that we are constantly expressing our disapproval whenever an attorney testifies in an action in which he is an advocate. The frequency with which this becomes necessary is delineated by the citations in Canal Ins. Co. v. Hall, 259 Ark. 797, 536 S.W. 2d 702 (1976). Here it appears the state’s expert chemist was searchingly and thoroughly cross-examined by appellant’s chief trial counsel, who is a forensic expert analyst in the area of marijuana identification. Upon completion of the state’s case, this attorney, over the state’s objection, was permitted to take the witness stand in the role of an expert defense witness and testify as to whether the state had sufficiently identified the material as marijuana. It appears from the brief that this attorney is the chief appellate counsel which is also impermissible. Even though the attorney is a non-resident attorney, we consider this a flagrant violation of a clear directive that an attorney cannot be an advocate and witness in the trial of a case and neither can he participate in the appellate procedure.

Affirmed.

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


author: Elsijane T. Roy, Justice.

text:
    Nathaniel BARKSDALE v. STATE of Arkansas
    CR 77-53
    555 S.W. 2d 948
    Opinion delivered October 3, 1977
    (Division I)

      Hunt & Jamison, by: Leon N. Jamison, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

Appellant Nathanial Barksdale was found guilty of the offense of burglary in violation of Ark. Crim. Code § 41-2002 (1976). He also was found to be a habitual offender, and the sentence imposed was nine years.

On appeal Barksdale’s only allegation of error is that the trial court erred in refusing to submit to the jury his proffered instruction that the offense of breaking or entering is a lesser included offense of burglary.

The record reflects appellant entered the Baptist Student Union at the University of Arkansas at Pine Bluff about midnight on July 20, 1976. The building was locked when the director left at 5:30 p.m., July 20, and appellant did not have permission to enter it that night.

Appellant testified he was out walking a dog and saw the door to the building open as he passed by, so he stepped inside since he knew at times they had ping pong games going on there; that when he stepped inside he noticed some glass was broken but heard no noise, so he left. When appellant went in the building it was approximately midnight and no lights were on. The silent burglar alarm apparently went off when the door was opened. The police responded to the alarm, and as he was running from the building appellant was shot when he did not stop as the officer ordered him to “halt.”

Section 41-2002, supra, provides:

(1) A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. (Italics supplied.)
(2) Burglary is a class B felony. [Acts 1975, No. 280, § 2002, p__].

. Ark. Crim. Code § 41-2001 (l)(b) (1976) clearly defines an “occupiable structure” as a “vehicle, building, or other structure: . . . where people assemble for purposes of business, government, education, religion, entertainment, or public transportation; . . . . ”

Ark. Crim. Code § 41-2003 (1976) provides:

(1) A person commits the offense of breaking or entering if for the purpose of committing a theft or felony he enters or breaks into any building, structure, vehicle, vault, safe, cash register, money vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box or other similar container, apparatus, or equipment.
(2) Breaking or entering is a class D felony. [Acts 1975, No. 280, § 2003, p__].

The main thrust of appellant’s argument seems to be that the “testimony establishes that the structure allegedly entered was a mere building, thus presenting the issue whether appellant was guilty of the offense of breaking or entering as defined by Ark. Stat. Ann. § 41-2003.”

Appellant relies on the comment to this section in the Criminal Code which states inter alia:

. . . [I]nsofar as it proscribes breaking and entering a building, structure, or vehicle with the intent to commit a theft or felony, the section states a lesser included offense of burglary and restores some of the broad coverage of the present burglary statute. See, Ark. Stat. Ann. § 41-1001 . . . . However, it is punished much less severely than burglary in recognition of the fact that this offense is designed primarily to protect property rather than people. All burglaries as defined by Section 2002 will by definition constitute breaking or entering. Consequently, the availability of the lesser offense may prove to be a useful plea bargaining tool in some cases. (Italics supplied.)

Appellant also cites Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972), but in Caton we stated:

We have been so careful to see that a jury has an opportunity to pass upon lesser offenses as well as the greater one charged that we have held that it is not prejudicial error to give an instruction which permits the jury to find a defendant guilty of a lower offense than that charged, even when the defendant objects, because the evidence shows him to be guilty of the higher offense or of nothing at all. Kurck v. State, 235 Ark. 688, 362 S.W. 2d 713, cert. denied, 373 U.S. 910, 83 S. Ct. 1299, 10 L. Ed. 2d 412. Still, it is not error for the court to fail to instruct on the lower offense, where the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent. Gilchrist v. State, 241 Ark. 561, 409 S.W. 2d 329; Sims v. State, 203 Ark. 976, 159 S.W. 2d 753; Clark v. State, 169 Ark. 717, 276 S.W. 849; Rogers v. State, 136 Ark. 161, 206 S.W. 152. * * * (Italics supplied.)

Under the statutory definition of “occupiable structure,” whether anyone is physically occupying the structure is irrelevant. The determinative factor is the nature of the premise, that is, not whether it was occupied at the time of the crime, but rather whether it was occupiable. The fact the building was used for social activities, religious sessions, and classroom meetings clearly demonstrated that the building was an “occupiable structure.” Thus there was no issue on this point to go to the jury.

The issue of entry ¡htp the building was never seriously in doubt either. Appellant freely admitted he entered the building and then left through the same door at the rear of the Student Union.

The only issue for jury determination was appellant’s intent on entering the building. In Cassady v. State, 247 Ark. 690, 447 S.W. 2d 144 (1969), citing Shell v. State, 184 Ark. 248, 42 S.W. 2d 19 (1931), we held:

* * * Criminal intent or purpose is a fact which cannot, in the nature of things, be positively known to others. It is an inference of fact that a jury may draw from the facts and circumstances existing and shown. * * *

There was testimony to the effect that appellant entered the locked building at approximately midnight; the burglar alarm went off; the door was found broken open; numerous items of value, i.e., radios, movie projectors and a tape recorder, were present in the structure; and appellant refused to heed the order of the officer to stop running. It is apparent by the verdict of the jurors that they disregarded appellant’s assertions he was investigating a ping pong game and found he intended to commit a punishable offense when he entered the building.

Thus from the evidence it is apparent appellant was guilty of the burglary offense as charged or was innocent, and thus the trial court did not err by refusing to submit appellant’s proffered instruction.

Affirmed.

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

       Tie Student Union door had a silent alarm system which alerted the police whenever the door was opened. The pastor of the Baptist Student Union testified the message was then automatically relayed to him by telephone, and that he received the message about 12:15 a.m., July 21.

       Neither would it have been error for the court to give the requested instruction. See Catón, supra.


author: Darrell Hickman, Justice.

text:
    John Ray JELINEK v. STATE of Arkansas
    CR 77-77
    556 S.W. 2d 426
    Opinion delivered October 3, 1977
    (Division I)
    [Rehearing denied November 7, 1977.]

      V. Benton Rollins, for appellant.

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

John Ray Jelinek was convicted of burglary and theft in the Ouachita County Circuit Court and sentenced to a total of four years in the Arkansas penitentiary. Only one issue is raised on appeal and it has merit. The trial court should have granted a motion to suppress certain evidence.

Jelinek was suspected of burglarizing the Retreat Supper Club near Camden, Arkansas. Part of the stolen goods was a goldfish bowl full of loose change. Two deputy sheriffs went to his home at about nine o’clock one morning and asked him to come to the sheriff’s office. Jelinek would not go in the police vehicle but instead chose to drive his own vehicle. One of the deputies rode with him. The deputy testified that he observed some loose change and a screwdriver ih the car. Jelinek parked and locked his car and was taken into the sheriff’s office where he was questioned most of the day. During his interrogation but before his formal arrest, and without his consent, one of the deputies took the keys to Jelinek’s vehiele and opened the car and removed the screwdriver. The officer stated that during Jelinek’s interrogation he had learned from another police officer that a similar tool had been used in another burglary. The officer admitted that Jelinek was not under formal arrest, nor did he have Jelinek’s consent to search the car. The record does not contain any facts which would be interpreted as warranting an immediate seizure of the property.

The detailed description of the screwdriver, including its color, certain markings and size, was a material fact in an affidavit presented to a court issuing a search warrant of Jelinek’s residence. The searched produced certain incriminating items, including a fish bowl full of change. The screwdriver’s seizure was constitutionally unreasonable. It was not taken with Jelinek’s consent. It was not taken contemporaneous with his arrest. It was not taken when it was in the plain view of the deputy sheriff at the time he was in the car. See Cox v. State, 254 Ark. 1, 491 S.W. 2d 802 (1973) There were no exigent circumstances, in the record, which would justify the seizure of the screwdriver.

The officer used poor judgment in seizing the screwdriver. Since the detailed description of the screwdriver, including its 3/4 inch width, may have been a determining factor in issuance of the search warrant, all the articles seized pursuant to the warrant cannot be legally used against Jelinek.

Reversed and remanded.

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


text:
    Billy Gene CARRICO v. James PEARSON, Sheriff of Benton County
    CR 77-120
    555 S.W. 2d 951
    Opinion delivered October 3, 1977
    (Division I)

      Festus H. Martin, for appellant.

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

Billy Gene Carrico petitions this court for a writ of habeas corpus. He is presently being held by the sheriff of Benton County pursuant to an extradition warrant issued by the Governor of the State of Arkansas at the request of the Governor of the State of Oklahoma. We deny the petition because the rendition warrant issued by the Arkansas governor on its face is valid.

Essentially the facts are undisputed. Carrico was arrested for driving while intoxicated and received a 29 day jail sentence. He began serving his sentence in the Benton County jail and would have served his term by the 23rd or November, 1976. The sheriff of Benton County received notice from an Oklahoma sheriff that there was an outstanding warrant on one Billy Gene Carrico and requested the sheriff of Benton County to keep Carrico until he could be extradited.

The sheriff kept Carrico beyond his sentence for the DWI, without lawful authority, for about 63 days. On February the 11th, 1977, an extradition hearing was held in Little Rock and the Governor of the State of Arkansas issued a rendition warrant for Billy Gene Carrico to be delivered to the State of Oklahoma on charges of burglary of a cash register and failure to appear for trial as ordered by the court.

In his petition Carrico alleges that the governor’s rendition warrant is not accompanied by the proper papers and is issued contrary to federal law. It is not necessary that the rendition warrant issued by the Governor of Arkansas to a sheriff have attached to it the original information and papers furnished by the requesting state. The rendition warrant, if properly issued, as this one appears to be, is presumed valid on its face.

Carrico also states that federal law requires that an indictment or affidavit before a magistrate be issued by the requesting state before it can be honored. 18 U.S.C. § 3182 (1970). In this case the record indicates that an information filed by a prosecuting attorney and other papers were furnished to the Governor of Arkansas. Arkansas law recognizes that an information supported by ^n affidavit is adequate to meet the requirements of extradition. See Ark. Stat. Ann. § 43-3003 (Repl. 1964).

Unfortunately Carrico was held without lawful authority beyond his jail term on the DWI charge. That is not disputed. However, he did not file his petition for release until after the Governor of Arkansas had issued a rendition warrant for him to be delivered to the State of Oklahoma. The fact that he was improperly held by the sheriff before this rendition warrant is not a reason for us to now grant a writ of habeas corpus. That is another matter.

The trial judge correctly conducted a hearing in this case on only two issues: to determine if Carrico was a fugitive and if, in fact, he was the person charged in the governor’s rendition warrant. Glover v. State, 257 Ark. 241, 515 S.W. 2d 641 (1974). The court found against Carrico on both issues and we find substantial evidence to support the findings of the trial court.

Writ denied.

We agree: George Rose Smith, Holt and Roy, JJ.


author: George Rose Smith, Justice.

text:
    DRESSER MINERALS et al v. Henry HUNT, Employee, by Ruth HUNT, Guardian
    77-171
    556 S.W. 2d 138
    Opinion delivered October 10, 1977
    (Division I)

      Smith, Williams, Friday, Eldredge & Clark, by: George E. Pike, for appellants.

      Thacker & Kincaid and B. W. Sanders, for appellee.
   George Rose Smith, Justice.

This is a workmen’s compensation case. The claimant, Henry Hunt, was employed by Dresser Minerals as a miner, working underground. On September 13, 1970, a flying sliver of rock penetrated his right eye, eventually resulting in the complete loss of the use of that eye. Hunt suffered so greatly from anxiety and depression as a consequence of the injury that he became totally disabled, physically and mentally, in March of 1973 he was declared incompetent by the Garland Probate Court, Mrs. Hunt being appointed as his guardian.

The first hearing before a referee was had on July 8, 1974. The employer and insurance carrier admitted that Hunt’s injury was compensable, but they contested the extent of their liability in several respects. By direct appeal from the circuit court’s affirmance of the commission’s decision the employer and carrier question three specific findings made by the commission. One of those findings is also challenged by the claimant, by cross appeal.

First, the commission, pursuant to the statute, increased the award of compensation by 15%, because it found that the injury was caused in substantial part by the employer’s violation of a safety regulation. Ark. Stat. Ann. § 81-1310 (d) (Repl. 1976). The appellants contend that this additional 15% claim is barred by limitations and that the claimant’s proof did not establish a causal connection between the violation and the injury.

The commission correctly denied the plea of limitations. The claim for additional compensation was filed two years and four months after the original injury. Ordinarily the statute of limitations for a claim for disability is two years, but there is this exception: “In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed . . . within one year from the date of the last payment of compensation, or two years from the date of the injury, whichever is greater.” § 81-1318 (b). Here compensation was paid from the beginning; so our holding in Miller v. Southern Machine & Iron Works, 239 Ark. 218, 388 S.W. 2d 391 (1965), is not in point. There no claim of any kind had been filed and nothing had been paid when the claim for wrongful death was filed after the one-year statute for such claims had already run.

We see no reason to treat the 15% claim as so wholly distinct from other claims for additional compensation as to put it in a class by itself, exempting such a claim from the basic rule that a claim for additional compensation is not barred if filed, as this one was, while compensation is actually being paid. Penal statutes, it is true, are to be strictly construed, but there is the countervailing principle that the compensation law is to be liberally construed in favor of the claimant. Furthermore, the great majority of claims for disability are paid as a matter of course, without the claimant’s ever having to employ an attorney. The appellants’ argument would tend to emasculate the 15% penalty provision, because in many cases (as apparently in this one) the two years would have run before the claimant, whose basic claim was being paid, learned anything about the 15% provision in the statute.

With regard to the causal connection between the safety violation and the injury, there is ample evidence to show that the employer did not have on hand, on the day of the accident, the required type of lenses to protect the miners’ eyes from the kind of injury that occurred. In fact, on that very day Hunt had asked for a protective mask, but the proper kind was not available.

Second, the commission awarded Mrs. Hunt $100 a week as compensation for her nursing services in the care of her husband. We do not agree with the appellants’ argument that her services were merely custodial and thus not within the statutory reference to “nursing services.” § 81-1311. A basic definition of “to nurse” is: “To take care of or tend, as a sick person or an invalid.” Webster’s New International Dictionary (2d ed., 1934). Another definition is “to tend, or minister to, in sickness or infirmity.” Random House Dictionary (unabridged ed., 1966).

In the context of the compensation law, nursing services evidently embrace more than a wife’s ordinary care for her sick husband, but that added showing was made here. Dr. Dembinski testified that Mrs. Hunt’s care of her husband was probably better than he would have received in a nursing home. He said she had about as much savvy and experience as a registered nurse. “If I were sick she could be my nurse.” She gives her husband intramuscular ihjections, enemas, hot baths, leg and back rubs, and other care that is necessary around the clock, seven days a week. She had to give up a job paying $100 a week in order to devote her entire time to caring for her husband, both an invalid and an incompetent. The $100 weekly award was fully justified by our holding in a somewhat similar case. Sisk v. Philpot, 244 Ark. 79, 423 S.W. 2d 871 (1968). We are not convinced, as the appellants argue, that the claim for nursing services should be dismissed outright simply because Mrs. Hunt did not at one time make her husband available for a psychiatric evaluation, as an administrative law judge directed. The commission was not asked to enforce such an order, nor was the present contention even mentioned in the commission’s opinion.

The commission fixed the beginning date of the weekly award as July 8, 1974, which was the day on which the claim for nursing services was first filed. By cross appeal the appellee argues that some earlier date should have been selected. The commission explained its selection of a somewhat arbitrary date by pointing out that the claimant did not prove by a preponderance of the evidence that the nursing services award should begin on any certain date. That explanation is true. The claimant’s evidence was not directed to that precise point. Even now, the argument for some earlier date is based upon testimony about when Hunt first became unable to care for himself. An important date would be that on which Mrs. Hunt had to stop working, but that exact date is not shown. The entire question is one of fact, as to which we cannot say that the commission’s determination is not based on substantial evidence.

Finally, the appellants argue that the commission should have deferred any finding that Hunt’s disability is permanent as well as total. The commission’s opinion was filed in April, 1976, more than five and a half years after the original injury and some five years after the claimant’s disability became total. It is now argued that because psychiatric testimony indicates that there is a possibility that psychiatric treatment and counseling might rehabilitate Hunt to the point of his being better able to attend to his own physical needs, the finding of permanent disability should have been deferred even longer than it was. The expert witnesses were, as we read their testimony, dealing in decidedly remote possibilities. There is also some indication that continued uncertainty about the ultimate disposition of Hunt’s claim has an adverse effect upon his mental condition. Here, again, the question is essentially one of fact, as to which the commission’s decision is unquestionably supported by substantial evidence. It is not our place to substitute our judgment in such matters for that of the commission.

Affirmed.

We agree. Harris, C.J., and Roy and Hickman, JJ.


text:
    Henry CLAY v. STATE of Arkansas
    CR 77-113
    556 S.W. 2d 137
    Opinion delivered October 10, 1977
    (Division I)

      Comer Boyett, Jr., of Boyett & Morgan, for appellant.

      Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant Clay, charged with attempted murder in the first degree, was found guilty and was sentenced to 15 years’ imprisonment. We find no merit in his four arguments for reversal.

On the night of March 14, 1976, four men — the prosecuting witness Jeff William West, the defendant Henry Clay, and two others — were drinking moonshine whiskey in Horace Kirck’s trailer. Both West and Clay were drunk. According to West, Clay made an unprovoked attack upon West, with his fists. In the course of the ensuing fight West knocked Clay dpwn and, as West testified, “stomped on his head a little bit.” West said thRt he moved away from Clay after Kirck intervened and broke up the fight. According to West, Clay then pulled a gun and shot West five times in rapid succession. Clay’s version was that he shot West in self-defense, while he was lying on his back on the floor with West astraddle of him and apparently about to stomp him to death. The jury evidently accepted West’s version.

It is first argued that the court should have granted a continuance, because the sheriff had not been able to serve a subpoena upon a missing witness who would have testified that after the fracas West told him that “it was just a question of who got to who first, and Henry Clay beat him to it.” The trial judge has a very broad discretion in granting or denying a request for a continuance. Here the trial had already been continued once, for what the trial judge regarded as a questionable reason. We find no abuse of discretion in the denial of a second continuance, because there was no showing of a diligent effort to find the witness, no showing of when the witness might be available if the continuance were granted, and no real reason to suppose that the expected testimony would influence the outcome of the case.

Citation of authority is not required to show that there is no merit in the argument that the State failed to show premeditation or deliberation, when the State’s proof was that the defendant, after the fight had been broken off, shot the prosecuting witness five times. Nor did the court abuse its discretion in curtailing defense counsel’s protracted voir dire examination of the prospective jurors or in permitting the prosecuting witness to be recalled in rebuttal.

It is finally argued that the court should have instructed the jury that an injured party’s right of action arising from the commission of a felony is not merged in the felony, any damages still being recoverable in a civil action. There was no testimony that a civil action was in fact pending. The instruction would have been abstract and was properly refused. “It is well settled . . . that courts are not required to give instructions upon questions about which there is no evidence, and thus divert the minds of the jury from the real issues in the case.” Lomax v. State, 165 Ark. 386, 264 S.W. 823 (1924).

Affirmed.

We agree. Fogleman, Roy, and Hickman, JJ.


author: John A. Fogleman, Justice.

text:
    Ennis SIMS v. STATE of Arkansas
    CR 77-133
    556 S.W. 2d 141
    Opinion delivered October 10, 1977
    (Division II)

      R. D. Rouse, for appellant.

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

Only questions of law are raised in this appeal. It is submitted upon a stipulation of facts. It is stipulated that appellant was convicted of driving while under the influence of intoxicants on July 9, 1974 and again on November 2, 1974. He was again charged with the same offense on March 26, 1976, and it was alleged to be a third offense under the provisions of Act 931 of 1975. He has never contended that he was not guilty of the basic charge in the last instance, but has consistently contended that the offense was a first offense and that the punishment imposed for a third offense was improper, because its application, under the circumstances, made it an ex post facto law as to him. He also contended that trying him under the act constitutes double jeopardy.

in support of his contention that Act 931 was ex post facto, he argues that it could not constitutionally be applied because it was not in effect at the time the first two offenses were committed. All of the authorities relied upon by appellant do, indeed, hold that a law which makes a crime punishable in a manner in which it was not punishable at the time it was committed is an invalid ex post facto law. But these cases have no application here, because the offense with which appellant was charged was committed after the adoption of Act 931 of 1975. The enhanced penalty provided for a third offense by that act is not for the first or second offense, but is for the third offense, which is considered as aggravated by reason of the preceding offenses. See Wolf v. State, 135 Ark. 574, 206 S.W. 39.

This court rejected arguments similar to those advanced by appellant in Dolphus v. State, 248 Ark. 799, 454 S.W. 2d 88. Even though the act involved there was the Habitual Criminal Act [Ark. Stat. Ann. § 43-2328 et seq (Repl. 1964, Supp. 1975)], the act in question here is itself a habitual offender act. Dolphus contains a complete answer to appellant’s double jeopardy argument. In spite of the fact that the appellant in Dolphus did not directly raise the question that the act was ex post facto, this court there relied upon Oliver v. U.S., 290 F. 2d 255 (8 Cir., 1961), cert. den. 368 U.S. 850, 82 S. Ct. 83, 7 L. Ed. 2d 48, in answering the argument that the appellant there was being subjected to double punishment for crimes committed prior to the enactment of the Habitual Criminal Act. The basis of the Oliver decision was that the habitual offender act before that court was not an ex post facto law. Since the punishment imposed upon appellant under Act 931 of 1975 was only for the offense committed after the passage of the act the rationale of Oliver is sufficient answer to appellant’s argument that the act was ex post facto as to him. Other jurisdictions have taken this same position where convictions for driving while under the influence of intoxicating liquors are concerned. See e.g., State v. Rising, 262 Ind. 30, 310 N.E. 2d 873 (1974). In Rising, the court stated that habitual criminal and habitual traffic offenders acts are not ex post facto laws, in circumstances such as those here presented, since they give notice that if persons persist in certain behavior they will be punished more severely than previously. We agree with that treatment of the question.

The judgment is affirmed.

We agree. Holt, Roy and Hickman, JJ.


text:
    Ruby M. DUKE et al v. C. R. LOVELL, M.D.
    77-61
    556 S.W. 2d 416
    Opinion delivered October 10, 1977
    (In Banc)
    [Rehearing denied November 7, 1977.]

      House, Holmes & Jewell, for appellants.

      Friday, Eldredge & Clark, by: W. A. Eldredge, Jr., and Phillip Malcom, for appellee.
   Frank Holt, Justice.

This case involves a wrongful death action predicated upon the asserted malpractice of the appellee physician. From a jury verdict in favor of the appellee, the appellants, the widow and two children of the decedent, bring this appeal asserting that the trial court erred in giving AMI Civil 2d 1501 without appellants’ requested modification, AMI Civil 2d 102. The first paragraph of AMI 1501 defines the standard of care which is required of a treating physician. The second paragraph of that instruction provides that in deciding whether a physician applied the requisite degree of skill, the jury may consider only the evidence presented by the physicians called as expert witnesses. The Note on Use to AMI 1501 states that the second paragraph of the instruction should be used only when the plaintiffs assert, as here, that the doctor failed to apply the requisite degree of skill and, if used, AMI 102 is not to be used. AMI 102 is a standard instruction to the effect that the jurors are permitted to use their common knowledge and have the right to consider all evidence in the light of their own observations and experiences in the affairs of life. Appellants argue that the use of AMI 1501 without modification by AMI 102 was improper in this case because it misled and restricted the jury in arriving at their verdict in the resolution of a critical factual issue; i.e., whether hospitalization was recommended. We agree.

Here the appellee’s expert medical witness stated that based upon the deceased’s abnormal EKG, his prior heart attack and the chest pains complained of, it would have been against the accepted standards of practice in the local area had the appellee not recommended hospitalization to his patient when he examined him at the hospital emergency room. The appellee agreed. He stated he knew of no doctor who would tell his patient with this history and existing symptoms that he could go home rather than be hospitalized. Therefore, it is agreed by both physicians that to meet the required standard of local care, hospitalization should have been recommended to the deceased due to the likelihood that he was suffering a heart attack.

The appellants adduced evidence that no such recommendation was made by the appellee at the emergency room and, to the contrary, the appellee advised the deceased to return home, telling him that he was not suffering a heart attack. The appellee physician unequivocally contradicted this version, stating that he made the proper diagnosis at the emergency room and repeatedly recommended and urged immediate hospitalization which the patient stubbornly refused. Approximately a day and a half later, appellants’ decedent suffered a fatal heart attack. Appellants, therefore, argue that the AMI 102 modification would permit the jury to consider the conflict in the evidence as to whether hospitalization was recommended.

In Lanier v. Trammell, 207 Ark. 372, 180 S.W. 2d 818 (1944), the dispute was whether the surgeon washed his hands and sterilized his instruments before performing an operation, it being established that this would be the proper procedure. There we said:

The dispute in this case was as to whether or not appellant followed the course which is conceded to be necessary and proper. Appellant says that he did and appellee and one of his witnesses testified that he did not follow this course. No amount of expert testimony could have thrown any light whatever on the real question in this case.

In St. Louis I.M. & S. Ry. Co. v. Rogers, 93 Ark. 564, 126 S.W. 1199 (1910), where the instructions did not cover a material issue in the case, we said in pertinent part:

It has been decided by this court in an unbroken line of cases that an instruction which ignores a material issue in the case about which the evidence is conflicting, and allows the jury to find a verdict without considering that issue, is misleading and prejudicial. ...

Here the appellants were foreclosed by AMI 1501, without modification, from presenting the issue as to whether hospitalization was recommended. Consequently, the jury’s function was improperly limited.

Appellants next assert error in the court’s refusal to admit into evidence statements contained in a letter from another physician to appellants’ previous attorney. It is argued that these statements were adopted as admissions by the appellee during his deposition. Ark. Stat. Ann. § 28-1001,, Rule 801 (d)(2)(h) provides that a statement is not hearsay whenever it is offered against a party-opponent who “has manifested his adoption or belief in its truth. ” Here it cannot be said that the appellee manifested his adoption or belief in the truth of the statements in the letter since he denied the basic facts upon which those statements were made. Accordingly, the evidence was properly excluded as hearsay.

Appellants finally contend that the court erred in ruling as a matter of law that the appellee’s failure to telephone and arrange hospitalization with the Veterans Administration Hospital on October 12 (the day following the emergency room examination) did not constitute negligence. As we construe the record, the court never instructed the jury that a failure to contact the cardiologist at the VA Hospital was not negligence. The court’s ruling merely eliminated the possibility of the decedent’s estate recovering damages on the alleged negligence. It did not preclude submission to the jury, on behalf of the appellants, the issue of appellee’s alleged negligence. In fact the evidence surrounding the October 12 phone call was argued to the jury by the appellants’ counsel. Appellants’ contention is clearly without merit.

Reversed and remanded.

Harris, C.J., and Byrd, J., not participating.


text:
    Robert HARPER and Frances HARPER v. Noel PEARSON and Rebecca Ann PEARSON
    77-139
    556 S.W. 2d 142
    Opinion delivered October 10, 1977
    (In Banc)

      Edward F. Armstrong and Edward I. Staten, for appellants.

      L. David Stubbs, for appellees.
   Elsijane T. Roy, Justice.

This matter comes before us on appellees’ motion to dismiss the appeal filed herein by appellants. Judgment in the cause was filed November 22, 1976, and notice of appeal filed November 30, 1976. Designation of the contents of record on appeal was signed by appellants on February 18, 1977, but not filed with the clerk of the court until February 22, 1977, 84 days following the filing of the notice of appeal.

On the 18th day of February, 1977, the chancellor entered an order extending the time within which the record must be filed and docketed with the Supreme Court to June 22, 1977; however, said order, which was filed February 22, 1977, was obtained without notice to appellees’ counsel.

On the 24th day of February, 1977, appellees filed a motion to vacate the order entered on February 18, 1977, on the grounds that there existed no good and sufficient reason for the extension of said time and for failure to give appellees’ counsel notice of appellants’ application for an extension of time.

Thereafter appellees’ attorney received a notice from the attorney for appellants that appellants would seek an order of the chancery court on February 28, 1^977, for an extension of time for filing the record on appeal and docketing said appeal with the Supreme Court.

After the hearing on February 28, 1977, the court entered an order extending the time within which to perfect appellants’ appeal to the Arkansas Supreme Court to seventy days from the date of said order. It is noted that this order extending the time within which to docket said appeal was entered on the ninetieth day following the filing of the notice of appeal.

Appellees contend that the actions of appellants in failing to “promptly” designate the contents of record on appeal as required by Ark. Stat. Ann. § 27-2127.2 (Repl. 1962) and appellants’ failure to comply with the spirit of Ark. Stat. Ann. § 27-2127.1 (Supp. 1975) and Supreme Court Rule 26A require this court to grant their motion to dismiss the appeal filed herein.

We view with some degree of concern appellants’ inaction in waiting until the ninetieth day after giving the notice of appeal before taking the legal steps necessary to secure an extension from the court. The enactment of § 27-2127.1 was to eliminate unnecessary delay in the docketing of appeals to this Court. To that end, Rule 26A was adopted to implement § 27-2127.1. Rule 26A provides that the trial court may extend the time for the docketing of an appeal if the court (a) finds that the extension is related to the inclusion in the record of evidence stenographically reported and (b) enters the order of extension before the expiration of the period for filing and docketing as originally prescribed or extended by a previous order. Counsel seeking such an extension shall give to opposing counsel notice of the application for an extension of time.

We stated in Gallman v. Carnes, 254 Ark. 155, 492 S.W. 2d 255 (1973), that “Act 206 of 1971 amended Section 2; of Act 555 by introducing the additional condition that an extension of the time originally fixed for docketing the appeal could be granted only upon a showing that the appellant had ordered a transcript of evidence stenographically reported. The legislative intent was evidently to eliminate unnecessary delays in the docketing of appeals to this court.”

We also stated in Perry v. Perry, 257 Ark. 237, 515 S.W. 2d 640 (1974):

As we pointed out in Gallman v. Carnes, 254 Ark. 155, 492 S.W. 2d 255 (1973), the legislative intent in the enactment of Section 27-2127.1, supra, was to eliminate unnecessary delay in the docketing of appeals to this court. Certainly the legislative purpose was not to provide a means by which needless postponements could be obtained. We expect compliance with the spirit of the statute to the end that lawsuits may progress as expeditiously as justice requires.

This court still adheres to these principles and will closely scrutinize cases involving this issue. We do not view granting such extensions as a mere formality. However, the record reflects the chancellor conducted a very extensive hearing and carefully considered the matter before granting the extension in this case. The court in the order entered after the hearing specifically found appellants had complied with Rule 26A and all statutory requirements for securing an extension. We find here the court did not enter the order in a perfunctory manner, and we cannot say that the chancellor abused his discretion.

Accordingly, the motion to dismiss will be denied.

Harris, C.J., and Byrd, J., not participating.

       In reaching this decision we have also considered the fact that appellees failed to present the motionito dismiss to this Court as promptly as possible. The motion was not filed until about four months after the transcript had been lodged with this Court and after appellants had expended $1,590.58 on brief costs.


text:
    Larry BROWN v. STATE of Arkansas
    CR 77-121
    556 S.W. 2d 418
    Opinion delivered October 17, 1977
    (Division I)

      Seay & Bristow, by: Bill W. Bristow, for appellant.

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

This charge of aggravated robbery arose from the armed robbery of a grocery store in Jonesboro. On motion the venue was changed to Mississippi county. The defendant denied the charge, asserting that he was in Memphis, Tennessee, at the time of the crime. The jury returned a verdict of guilty and assessed the punishment at ten years in prison. There is no merit in either of the two arguments for reversal.

First, the transcript that was sent from Craighead county to Mississippi county was not certified by the Craighead circuit clerk until about two weeks after the trial. No objection to the belated certification was made in the trial court; but it is argued here, on the authority of two early cases having to do with a clerk’s failure to attach his official seal to such a certification, that the trial was void. Ball v. State, 48 Ark. 94, 2 S.W. 462 (1886); Hudley v. State, 36 Ark. 237 (1880).

The technical rule followed in those two cases was changed by a statute providing that a judgment of conviction should be reversed for prejudicial errors only. Lee v. State, 73 Ark. 148, 83 S.W. 916 (1904). That is still the law. We do not reverse a judgment for non-prejudicial errors. Underdown v. State, 220 Ark. 834, 250 S.W. 2d 131 (1952); and see Ark. Stat. Ann. § 43-2725.2 (Supp. 1975). Here there is no contention that the delayed certification was not correct.

Brown testified that he was in Memphis at the time of the robbery. His sister was called to testify that Brown telephoned her that evening and said that he was in Memphis. The court sustained the State’s objection to the latter statement.

The court’s ruling was correct, the self-serving statement being hearsay. It is argued, however, that the statement was relevant as a rebuttal of the State’s implication that Brown’s own testimony that he was in Memphis was a recent fabrication. It may be noted that testimony actually rebutting an implied charge of recent fabrication is declared not to be hearsay by the Arkansas Uniform Rules of Evidence. Ark. Stat. Ann. § 28-1001, Rule 801 (d)(1)(h) (1976).

Here the appellant misconceives the meaning and purpose of the rule. The principle applies, even apart from statute, when there is an express or implied charge that a witness has fabricated a statement that he is now making under oath. It is then proper, and not hearsay, to show that he made the same statement before the motive for fabrication came into existence. Wigmore, Evidence, § 1129 (rev. ed., 1972); McCormick, Evidence, § 49 (2ded., 1972). It has been correctly pointed out that the word “recent, ” describing the fabrication, is merely a relative term, meaning that the challenged testimony was fabricated to meet the exigencies of the case. People v. Singer, 300 N.Y. 120, 89 N.E. 2d 710 (1949). The principle has no application here; for Brown, if guilty, had the same motive for fabrication when he made the alleged telephone call as he had when he testified in the case.

Affirmed.

We agree. Fogleman, Roy, and Hickman, JJ.


text:
    Sam BLAKE v. STATE of Arkansas
    CR 77-139
    556 S.W. 2d 427
    Opinion delivered October 17, 1977
    (Division I)

      Vincent E. Skillman, Jr., for appellant.

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

In 1974 Blake pleaded guilty to a charge of grand larceny and was placed on probation for five years. On May 30,1976, Blake was arrested upon a charge of rape. On July 26 the prosecuting attorney filed a petition asking that the earlier probation be revoked, on the basis of the asserted rape. The rape case was tried in September, ending in a mistrial. The State apparently elected to proceed with the revocation matter rather than retry the rape case. After a hearing in February, 1977, at which evidence about the alleged rape was introduced, the circuit judge revoked the probation. This appeal is from that order.

Blake argues that the revocation order should be set aside, because the hearing was not had within 60 days after the petition for revocation was filed. The 60-day limitation, however, begins to run from the date of the defendant’s arrest for a violation of the terms of suspension. Ark. Stat. Ann. § 41-1209 (2) (Crim. Code 1976); Walker v. State, 262 Ark. 215, 555 S.W. 2d 228 (1977). Here Blake was arrested upon the rape charge that was filed in May, not upon the revocation petition that was filed in July. The record does not show whether Blake was released on bond pending the trial of the rape case, though it does appear that he is now out on bond pending this appeal.

Whatever may be the rule when a defendant is arrested upon a petition to revoke a suspended sentence, we certainly cannot say that the 60-day limitation is mandatory when there is no such arrest. In many instances the defendant may prefer that the revocation matter be deferred until the disposition of an underlying charge, such as that of rape in this case. Here there was no objection to the delay, no request for an earlier hearing, nor any showing of prejudice; On the merits we find no abuse of the court’s discretion in the revocation, which is amply supported by the proof that was heard.

Affirmed.

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


text:
    Faron BAXTER and Debra Ann BAXTER v. STATE of Arkansas
    CR 77-135
    556 S.W. 2d 428
    Opinion delivered October 17, 1977
    (Division II)

      Jack T. Lassiter, for appellants.

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

Appellants were found guilty of possession of controlled substances with intent to sell. They seek reversal only on matters pertaining to the denial of their motion to suppress certain evidence seized in a search of their house pursuant to a search warrant. Their principal arguments relate to the reliability of an informant. We find that the affidavit on which the search warrant was issued sufficient to establish the reliability of the informant.

At the hearing on the motion to suppress, the state was permitted to introduce testimony to supply alleged deficiencies in the affidavit. The testimony was given by the informant, who was identified at the hearing as Cathy Auld. This is not permissible and appellants’ objection should have been sustained. The information disclosed by her testimony was not before the issuing magistrate. Probable cause for the issuance of a search warrant can only be determined upon the basis of the information given, under oath, to the issuing judicial officer. Lunsford v. State, 262 Ark. 1, 552 S.W. 2d 646; Cockrell v. State, 256 Ark. 19, 505 S.W. 2d 204; Durham v. State, 251 Ark. 164, 471 S.W. 2d 527.

The affidavit for search warrant was made by Deputy Sheriff William P. Sprecher and was based entirely upon information received by him from the confidential informant. The recitation of facts in the affidavit going to the reliability of the informant are these:

On this date, May 5, 1976, I received information from confidential informant not named herein, but whose identity will be furnished to the court on request. This informant purchased from one Farron Baxter at his residence ten capsules of phenobarbital at a price of $1.50 per pill. Informant further states these purchases were made at 10:00 P.M. Tuesday, May 4, 1976 and at 2 A.M. and 4 A.M. on this date May 5, 1976. Informant further states that she witnessed two sales of marijuana by Mr. Baxter in her presence and that he gave her the marijuana cigarettes which she brought to me this morning. The informant states that barbituates are presently stored in a refrigerator in the Baxter’s residence and a large quantity of marijuana is being hidden in one of the bedrooms of the residence. *** I believe my informant since Mr. Baxter has a long standing reputation with me and other police agents as a drug seller. (She' (informant) is an addict and has been reliable as an informant to Benton City Police.)

Appellants rely upon the requirement of Rule 13.1 (b), Arkansas Rules of Criminal Procedure, effective January 1, 1976, that the affiant set forth particular facts bearing on the informant’s reliability and disclose, as far as practical, the means by which the information was obtained. This rule is based to a great extent upon Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). The requirements of Aguilar were considered in U.S. v. Harris, 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971) and the better view of these requirements was expressed in the opinion of Mr. Chief Justice Burger, in parts of which four other justices joined. A majority of the court took the view that, in evaluating the showing of probable cause for the issuance of a search warrant, the admonition of U.S. v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965) should be heeded. The admonition was there quoted, viz:

[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

This is an appropriate admonition. We have said that issuing magistrates should base their judgments upon a commonsense reading of an entire affidavit. Cary v. State, 259 Ark. 510, 534 S.W. 2d 230.

In Harris, an officer’s affidavit for search warrant was held constitutionally sufficient. It stated that the defendant had a reputation as a trafficker in nontaxed distilled spirits; that the officer had received information from numerous persons of all types as to the defendant’s activities; that a local constable had seized illicit whiskey in an abandoned house under the defendant’s control; that the officer had received information from a confidential informant whom the officer had interviewed and found prudent; and that the informant had “personal knowledge of and had purchased illicit whiskey from within the residence described” for more than two years and within the preceding two weeks, knew of a person who had purchased illicit whiskey in the preceding two days from this house and had personal knowledge that illicit whiskey was consumed by purchasers in an outbuilding located about 50 feet from the defendant’s residence, to which he had seen defendant go to obtain whiskey for purchasers. The particular statements as to the affiant’s knowledge of his informant’s reliability in this case go much further than a conclusion that she was prudent. It was stated that she, an addict, had furnished reliable information to the Benton city police. Factors which the court found supportive of the reliability of the informant in Harris were the reputation of the defendant and the informant’s incriminating declaration against interest.

We have heretofore held that the reliability of an unnamed informant could be established merely by the incriminating nature of his statements. Maxwell v. State, 259 Ark. 86, 531 S.W. 2d 468. We have also given weight to the reputation of a place as one where illegal drugs could be purchased in considering an officer’s testimony before an issuing magistrate based on an informant’s statements. See Shinksy v. State, 250 Ark. 614, 446 S.W. 2d 909.

The informant here incriminated herself. See Ark. Stat. Ann. § 82-2617 (c); Armour v. Salisbury, 492 F. 2d 1032 (6 Cir., 1974), citing and quoting from Harris. But, in addition, she gave specific information as to recent purchases by her and a detailed description of the place where controlled substances were kept, she was a known addict, who had given information to other police officers, and her statements were supported by the officers’ knowledge of appellants’ reputation as a drug seller. This affidavit seems to be comparable to that in Harris and was certainly more specific, detailed and comprehensive that the one held sufficient in Jones v. U.S., 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697, 78 ALR 2d 233 (1960), cited with approval in Aguilar.

Harris has been widely construed as holding that where the evidence before the magistrate issuing a search warrant shows that a confidential informant has given specific details indicating recent illegal activity, actually witnessed by him, at a definitely described place, the fact that the informant’s statements are declarations against interest is a sufficient basis for a finding of the informant’s reliability and credibility, at least when coupled with a showing that the person alleged to be carrying on the illegal activity has a reputation for engaging in such activities. See Armour v. Salisbury, supra; Quigg v. Estelle, 492 F. 2d 343 (9 Cir., 1974), cert. den. 419 U.S. 848, 95 S. Ct. 86, 42 L. Ed. 2d 78; State v. Southard, 144 N.J. Super 501, 366 A. 2d 692 (1976); Smith v. State, 136 Ga. App. 17, 220 S.E. 2d 11 (1975), cert. den. 425 U.S. 938, 96 S. Ct. 1671, 48 L. Ed. 2d 179; U.S. v. DeCesaro, 502 F. 2d 604 (7th Cir. 1974); Ringel, Searches and Seizures, Arrests and Confessions, 1976 Cumulative Supplement, p. 330, § 335.01. Certainly Aguilar would permit reliability to be established by surrounding circumstances made known to the issuing magistrate. State v. Sullivan, 267 S. C. 610, 230 S.E. 2d 621 (1976) . Other information within the knowledge of the affiant furnishing corroboration of the informant’s disclosures may be a basis for establishing the informant’s reliability. See Blankenship v. State, 258 Ark. 535, 527 S.W. 2d 636; Smith v. State, supra, 136 Ga. App. 17.

It has also been held that detailing the reliable information previously given by the affiant’s informer is unnecessary when the informant was an eyewitness to the facts related by him. Woods v. State, Tenn. Cr. App., 552 S.W. 2d 782 (1977); Torres v. State, 552 S.W. 2d 821 (Tex. Cr. App. 1977). This might be a sound view insofar as constitutional standards are concerned, but Rule 13.1 (b) requires more. The conclusory statement that the informant had given reliable information to the Benton city police, which was itself hearsay, would not be sufficient under that rule; however, any deficiency in that respect is supplied by these facts: (1) the informant was an eyewitness to recent events detailed by her; (2) her statements were declarations against interest; (3) the reputation of Faron Baxter lent support to her reliability and credibility.

When we view the affidavit in a commonsense manner, rather than hypertechnically, we should not invalidate the warrant issued by the magistrate in reliance upon the statement of probable cause therein. U.S. v. Ventresca, supra.

Appellants also complain that the search warrant’s statement that the issuing municipal judge was “satisfied that there is reasonable ground for such suspicion,” was not a sufficient compliance with Rule 13.2 (b) (ii), Arkansas Rules of Criminal Procedure. The finding of reasonable cause was stated in the preamble to the warrant in the following words:

WHEREAS, Complaint has been made, on oath, before the undersigned, Municipal Judge for the City of Benton, by Chief Deputy Bill Sprecher that certain see attached Affidavit for search warrant and that said complaint suspects that such property is concealed in the house occupied by Faron Baxter in said county; whereas, being satisfied that there is reasonable ground for such suspicion.

The rule requires that the warrant state with particularity, the judicial officer’s finding of reasonable cause for issuance of the warrant. We do not take this to mean that the search warrant shall recite, in detail, each of the specific facts on which the judicial officer concludes that probable cause has been shown. We take it to mean that the warrant shall include a finding that there was probable cause for the search. Although the language of the magistrate’s finding may not have been couched in the most desirable words that could have been chosen, it is clear that the court found “reasonable grounds” for the issuance of the search warrant in the affidavit attached to it. There was a substantial compliance with the requirements of the rule.

We find no merit in appellants’ argument that such a conclusionary statement is patently unconstitutional and the authorities cited in their brief do not support their position on this point. Those cases relate to statements in supporting affidavits and not to the findings of the issuing magistrate. See Aguilar v. Texas, supra; Cockrell v. State, 256 Ark. 19, 505 S.W. 2d 204; Montgomery v. State, 251 Ark. 645, 473 S.W. 2d 885. The commentary on this particular provision recites that Rule 13.2 (b) (i) and (ii) provide information which may be needed by a person served who desires to contest the validity of the warrant. When the affidavit on which the finding is based is attached to the warrant, all the information that would be afforded by a detailed finding is available to the person served.

Appellants also argue that the cumulative effect of the non-compliance with the Arkansas Rules of Criminal Procedure governing search warrants constituted such a substantial violation of their constitutional rights that the motion to suppress should have been granted. Rule 16.2 (e) provides that a motion to suppress evidence obtained by a search warrant shall be granted only if the trial court finds that the violation was substantial. See Brothers v. State, 261 Ark. 64, 546 S.W. 2d 715. Comment I to this rule states various grounds upon which such a motion may be based. The only grounds there enumerated upon which appellants rely, other than the alleged lack of reasonable cause on the record before the issuing judicial officer, are (1) the failure of the warrant to describe the place to be searched with sufficient particularity, (2) the failure to indicate the time period within which the search was to be made, and (3) the failure of the officers executing the warrant to leave a copy with either of the appellants.

There was a substantial compliance with the requirement of Rule 13.2 (b) (iii), Arkansas Rules of Criminal Procedure, that the warrant describe the location and designation of the place to be searched with particularity. It is true that the warrant itself only described the place as “the house occupied by Faron Baxter.” Still, the affidavit attached to the warrant described the place with great particularity, viz:

*** The Baxter’s residence is located approximately one quarter mile north of the stop sign where Hwy 229 intersects the Old Oklahoma Road being located just past a rock house on the left, down a gravel driveway, approximately 200 yards. Said residence being a black and white mobile home with a screen-in porch across the front and a small fence around the front yard. ***

There was no return date stated in the warrant as required by Rule 13.2 (b) (v). The outer limit of the return date there specified is five days after issuance. The return was made on the same date the warrant was issued. Since the warrant was actually served within the allowable period, there was no showing of any prejudice to appellants, and the violation is not substantial, this omission does not afford the basis for suppression of the fruits of the search. See Rule 16.2 (e); Brothers v. State, supra.

Appellants also say that they did not receive a copy of the warrant as required by Rule 13.3 (b), Arkansas Rules of Criminal Procedure. That particular provision requires that the executing officer shall give a copy of the warrant to the person in apparent control of the premises to be searched, before undertaking the search, except in circumstances not material here.

Chief Deputy Sheriff Sprecher testified that Mrs. Baxter was present when the warrant was executed. He said that he thought he had left a copy with Mrs. Baxter , but could not remember whether he had. Mrs. Baxter testified that a copy was not left, and that Deputy Sprecher only showed her the warrant briefly, but took it away a couple of times after she had started reading it. She admitted that she was allowed to read it, but could not recall seeing the signature of the municipal judge. She remembered seeing her husband’s name, the premises to be searched and Deputy Sprecher’s name. Wé do not consider the action of the officers here to be in full compliance with the rule. See Commentary on Rule 13.3 (b). On the other hand, it is clear from the récord that a. copy was furnished to appellants ’ attorney and the appellant who was present when the warrant was executed, was afforded an opportunity to read the warrant. The omission to leave a copy with her does not constitute a ground for suppression listed in the Comment to Rule 16.2. We do not consider the violation substantial on the basis of the circumstances enumerated in Rule 16.2 (e).

Violations of the rules governing the search of which appellants complain, when considered collectively, do not indicate any substantial violation of, or prejudice to, the rights of appellants.

The judgment is affirmed.

We agree. George Rose Smith, Roy and Holt, JJ.

       See also, State v. Sullivan, supra, where the informant was identified.


text:
    Herschell Milton FINCH v. STATE of Arkansas
    CR 77-149
    556 S.W. 2d 434
    Opinion delivered October 17, 1977
    (Division II)

      Bowie & Erwin, by: Harold S. Erwin, for appellant.

      Bill Clinton, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Herschell Milton Finch was found guilty of battery in the first degree. He presents three points for reversal. In none of them do we find reversible error.

Appellant Finch first claims error in the trial judge’s refusal to permit his attorney to examine prospective jurors on voir dire with reference to his being appointed by the court to represent appellant. It is not clear from the record that appellant asked permission to do so, but the record does disclose that before voir dire, the trial judge responded to the statement of one of appellant’s attorneys that he intended to mention that they were court appointed, by stating that it was the policy of the trial court not to permit either side to comment on that fact.

The extent and scope of voir dire examination is largely a matter lying within the sound judicial discretion of the trial judge and the latitude of that discretion is rather wide. Ark. Stat. Ann. § 39-226 (Repl. 1962); Rogers v. State, 257 Ark. 144, 515 S.W. 2d 79, cert. den. 421 U.S. 930, 95 S. Ct. 1656, 44 L. Ed. 2d 87; Hogg v. Darden, 237 Ark. 478, 374 S.W. 2d 184. His restriction of that examination will not be reversed on appeal, unless that discretion is clearly abused. Lauderdale v. State, 233 Ark. 96, 343 S.W. 2d 422; Curbo v. Harlan, 253 Ark. 816, 490 S.W. 2d 467; Baldwin v. Hunnicutt (on rehearing), 192 Ark. 445, 93 S.W. 2d 133. This rule has not been materially affected by Rule 32.2 (b), Arkansas Rules of Criminal Procedure, which requires the trial judge to permit such questions by the defendant or his attorney as the judge deems reasonable and proper.

Punishment was imposed on appellant under the Habitual Criminal Act. The original information charging him with the basic offense contained no allegation that appellant had been previously convicted of a felony. Whenever the state seeks to charge one as a previous offender or habitual criminal in order to warrant the imposition of additional punishment for the offense charged, the previous offense is an essential element in the punishment, which must be alleged in the indictment or information. Robbins v. State, 219 Ark. 376, 242 S.W. 2d 640; Switzer v. Golden, 224 Ark. 543, 274 S.W. 2d 769; Hettle v. State, 144 Ark. 564, 222 S.W. 1066. See also, Kightlinger v. State, 105 Ark. 172, 150 S.W. 690. The purpose of this requirement is to afford appellant notice of essential elements upon which the state relies for assessment of punishment and to give him the opportunity to refute such assertions. Baugh v. State, 256 Ark. 64, 505 S.W. 2d 519; Robbins v. State, supra; Switzer v. Golden, supra.

Appellant contends that the trial court erred in allowing the state to amend its information after the trial had started in order to permit the imposition of more severe punishment on him. Proper amendments of informations have been permitted under Ark. Stat. Ann. § 43-1024 (Repl. 1964) after the jury has been sworn but before the case has been submitted to it, so long as the amendment does not change the nature or degree of the crime charged, if the accused is not surprised. Washington v. State, 248 Ark. 318, 451 S.W. 2d 449; Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304; Johnson v. State, 197 Ark. 1016, 126 S.W. 2d 289; Ingle v. State, 211 Ark. 39, 198 S. W. 2d 996. See also, Ridgeway v. State, 251 Ark. 157, 472 S.W. 2d 108.

This amendment did not change either the nature or the degree of the crime. Nor does our habitual criminal act. See McIlwain v. State, 226 Ark. 818, 294 S.W. 2d 350; Osborne v. State, 237 Ark. 170, 371 S.W. 2d 518. It simply authorizes a more severe punishment. Higgins v. State, 235 Ark. 153, 357 S.W. 2d 499. ft does not create a distinct additional offense or independent crime but simply affords evidence to increase the punishment and to furnish a guide for the court or jury in fixing the final punishment in event of conviction of the offense charged. See Commentary, Ark. Stat. Ann. § 41-1001, Arkansas Criminal Code; Hathorne v. State, 459 S.W. 2d 826 (Tex. Cr. App., 1970), cert. den. 402 U.S. 914, 91 S. Ct. 1398, 28 L. Ed. 2d 657; Morelock v. State, 2 Tenn. Cr. App. 423, 454 S.W. 2d 189; State v. Thompson, 299 S.W. 2d 468 (Mo., 1957); Gamron v. Jones, 148 Neb. 645, 28 N.W. 2d 403 (1947); Ervin v. State, 351 P. 2d 401 (Okla. Crim. App., 1960); Smith v. State, 227 Ind. 672, 87 N.E. 2d 881 (1949); 5 Wharton’s Criminal Law & Procedure (Anderson) 435, § 2218. It is based upon the theory that one who is a persistent offender warrants an increased punishment for the offense of which he is found guilty, for the protection of the community, because he has not been deterred by previous punishment. See 4 Wharton’s fCriminal Procedure (12th Ed.) 285, § 631.

There was no error in allowing the amendment, but the court erred in denying appellant’s motion for continuance after the amendment was made. The first notice given to appellant that he was being charged as a recidivist was given by a copy of a letter to the circuit judge over the signature of the deputy prosecuting attorney. The copy went to appellant’s attorney. The letter gave notice to the judge that the state intended to produce evidence of prior felony convictions under Ark. Stat. Ann. § 41-1001. No specification was made of time or place of the convictions or of the crimes involved. The number of convictions was not mentioned. The letter was dated on December 3, 1976. The case had been set for trial, and went to trial, on the following Monday, December 6.

When the court granted the state’s motion to amend the information to allege that appellant had been previously convicted of felonies, appellant promptly moved for a continuance. This motion was promptly denied, solely upon the ground that appellant was a pauper who had been in jail since September 1. Still, appellant has not shown how he was prejudiced. The abbreviated record before us, on appellant’s designation, does not disclose what evidence of prior convictions was introduced, but we assume that the state showed the same four convictions set out in the state’s petition for revocation of the portions of sentences on prior convictions which had been suspended, filed after the jury verdict was returned in this case. Appellant was sentenced to a total of 21 years on those charges upov the court’s revocation of the suspensions. All of the suspended sentences, one of which was for 15 years, are to run consecutively. The five year sentence in this case is to run concurrently with the other sentences.

We do not reverse the action of a trial judge in denying a continuance in the absence of a clear showing of abuse of discretion in the matter and in the absence of a showing of prejudice. See Thacker v. State, 253 Ark. 864, 489 S.W. 2d 500; Nash v. State, 248 Ark. 323, 451 S.W. 2d 869. On appeal, the state relies only upon appellant’s failure to demonstrate prejudice, and properly so. It is readily apparent that appellant’s attorney could not be prepared to investigate, much less prepare to challenge the four previous convictions found by the jury, over the weekend, assuming that he received the copy of the letter on the date it bore, particularly when the letter did not specifically identify any conviction. The denial of the motion was clearly an abuse of discretion.

Not only do we not know what objections were offered to the evidence of prior convictions (other than the objection to its being admitted at all), but appellant has not availed himself of any means of showing prejudice.

Appellant was not prevented from giving evidence to show how he was prejudiced by his inability to make the showing when the court denied his motion for continuance or even when the evidence of prior convictions was offered. Even though a motion for new trial is no longer a requisite for appellate review, it is still a permissible procedure. Ark. Stat. Ann. § 43-2704 (Supp. 1971). A trial court may grant a new trial when the defendant’s substantial rights have been prejudiced by a verdict, if the court is of the opinion that the defendant has not received a fair and impartial trial. Ark. Stat. Ann. § 43-2203 (Repl. 1964). The circuit court’s refusal to grant a continuance would have been a proper ground for such a motion, if it had been made to appear that there was an abuse of discretion or manifest denial of justice. See Figeroa v. State, 244 Ark. 457, 425 S.W. 2d 516; Jones v. State, 205 Ark. 806, 171 S.W. 2d 298; French v. State, 205 Ark. 386, 168 S.W. 2d 829; 58 Am. Jur. 2d 325, New Trial, § 117. On making such a motion, appellant would have been afforded an opportunity to tender evidence to show prejudice, if it was impossible to do so at the time of his motion for continuance. See Tyson v. State, 196 Ark. 1179, 120 S.W. 2d 29; Gross v. State, 242 Ark. 142, 412 S.W. 2d 279; Cooper v. State, 215 Ark. 732, 223 S.W. 2d 507; Pinson v. State, 210 Ark. 56, 194 S.W. 2d 190; 58 Am. Jur. 2d 422, New Trial, § 204.

Since appellant failed to avail himself of any opportunity to make a showing of prejudice and to afford the trial judge a chance to review his action denying a continuance in the light of a showing which could not have been made during the trial, we cannot hold that the error was prejudicial.

The judgment is affirmed.

We agree. George Rose Smith, Holt, Roy and Hickman, JJ.