author: P. A. Hollingsworth, Justice.

text:
    ALCOHOLIC BEVERAGE CONTROL DIVISION, State of Arkansas, et al v. R. C. EDWARDS DISTRIBUTING CO., INC., et al.
    84-168
    681 S.W.2d 356
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984

      Stephen E. Morley, and Donald R. Bennett, for appellant.

      Compton, Prewett, Thomas if Hickey, P. A., by: William I. Prewett, for appellee.
   P. A. Hollingsworth, Justice.

The Alcohol Beverage Control Board (hereinafter ABC) denied a request for a dual distribution plan which was filed by the appellees, who are licensed wholesale liquor dealers in Arkansas. The wholesale dealers appealed the agency’s decision to Union County Circuit Court. The trial judge ruled in favor of the appellees, approving the plan. In addition, the judge held that ABC Regulation 2.16 was unconstitutionally vague. The ABC is appealing from that decision. This appeal is before us under Sup. Ct. R. 29 (l)(c) since we are being asked to consider the constitutionality of Regulation 2.16.

Historically, the ABC has required any wholesale dealers who register a brand of controlled beverage for distribution to distribute the beverage on a statewide basis or not at all, and to be the exclusive distributor for that registered brand. The appellees here are asking the ABC to allow them to carve the state up into districts and to allow different distributors to carry the same brands.

The ABC Board in its decision ruled that Arkansas was not ready for dual distributorships at the wholesale liquor level and that additional rules and regulations would be necessary to govern a system such as that proposed by the appellees.

The appellants raise several arguments for reversal, but we only find merit in two and will address these here. We affirm the trial court on all points.

The appellant contends that the decision of the ABC Board should have been upheld by the trial court since it was not arbitrary and capricious nor characterized by an abuse of discretion and that it was error to find Regulation 2.16 unconstitutionally vague.

When we review administrative decisions, we review the entire record to determine whether there is any substantial evidence to support the agency’s decision, or if there was arbitrary and capricious action or an abuse of discretion by the board. Green v. Carder, 282 Ark. 239, 667 S.W.2d 660 (1984).

In a letter opinion, the trial judge found that the board’s action was arbitrary and capricious. In support of this holding, the judge discussed the validity of Regulation 2.16. The regulation provides:

WHOLESALERS TO REGISTER BRANDS OF CONTROLLED BEVERAGES: MANUFACTURERS AND WHOLESALERS NOT TO CHANGE BRANDS WITHOUT APPROVAL OF DIRECTOR. All persons holding permits to wholesale controlled beverages must register with the Director the brands of controlled beverages handled and distributed in this state. No person holding a wholesale permit shall add an additional brand to his stock without first securing the written approval of the Director, and no manufacturer shall transfer a brand from one wholesale distributor to another or create dual distributorships on the same items without first securing the written approval of the Director. In granting or denying such approval, the Director shall notify any wholesaler affected and consider any objections made in writing by the wholesaler. If the Director disapproves the transfer the brand shall remain in the status quo. If at any time the Director is of the opinion that a distiller, rectifier, or importer is not shipping his wholesalers a reasonable amount of merchandise he may withdraw his approval of all their brands.

The trial judge found that the ABC Board based its denial of brand registrations to the appellees on the basis that such brands can be registered only to one distributor in the state under Regulation 2.16. The trial judge further found there is no dispute that the regulations do not define “dual distributor.” To define the term, the parties relied on the “customs of the trade” usuage. The court held:

[Regulations must have some reasonable relationship to the intent and purpose of the law; they must not be so abstract and indefinite as to permit nebulous subjective factors to be determinative. Regulation 2.16 does not meet this test and is invalid in at least two regards as written.
First, there is no time frame or limit set forth in the regulation which regulates timely approval or disapproval of petitions. [This] . . .permits arbitrary action and uncertainty. It allows an entity to indefinitely delay action and this in itself breeds capricious decision. Secondly, resort to the “customs of the trade” is so vague and uncertain that it permits and allows and necessarily fosters arbitrary action.

We agree. In Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979), we discussed the standard of review for statutes regulating business, an analogous situation. We said in Davis that a statute was too vague and indefinite when the terms “unjust, unreasonable and excessive” as applied “had no commonly recognized or accepted meaning and the statute contained no provision pointing to what should be deemed a just, reasonable and not excessive price, and there was no accepted and fairly stable commercial standard which could be regarded as impliedly taken up and adopted by the statute.” We stated that “the exaction of obedience or requiring conformity to a standard which is so vague and indefinite amounts to no rule or standard at a'll.”

Furthermore; “[a] statute or ordinance which in effect reposes an absolute, unregulated, and undefined discretion in an administrative agency bestows arbitrary powers and is an unlawful delegation of legislative powers.” 1 Am Jur 2d Administrative Law § 108 p. 908 (1962).

The action of the board was arbitrary and Regulation 2.16 is unconstitutionally vague. We therefore affirm the trial judge.

Affirmed.


source: Caselaw Access Project

author: P. A. Hollingsworth, Justice. Steele Hays, Justice,

license: Public Domain

text:
    Gail W. STEELE v. STATE of Arkansas
    CR 84-126
    681 S.W.2d 354
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984
    G. Keith Watkins, for appellant.

      Steve Clark, Att’y Gen., by: Marci Talbot, Asst. Att’y Gen., for appellant.
   P. A. Hollingsworth, Justice.

The appellant was charged with driving while intoxicated pursuant to Act 549 of 1983. The jury found him guilty of third offense driving while intoxicated and imposed a one year sentence, $1500 fine, and suspension of his driver’s license. The principal points for reversal relate to the unconstitutionality of the act which (1) is unconstitutionally vague; (2) establishes a conclusive presumption of guilt; and (3) compels defendants to testify against themselves in violation of the fifth amendment to the United States Constitution. The fourth point for error is the admission of prior convictions when the record did not show the appellant was represented by counsel. Jurisdiction is in this Court under Rule 29 (l)(c).

In the course of driving upon a highway, appellant crossed the center line and was stopped by a state trooper. Upon smelling alcohol on the appellant’s breath, the state trooper administered field sobriety tests and determined that appellant was intoxicated. The state trooper arrested the appellant, and a struggle ensued. Appellant sustained a broken leg and other injuries for which he was taken to the hospital for treatment. While he was there, a blood alcohol test was given, registering .22%.

The constitutionality of the act has been raised before on the first two points argued by appellant, and we have declared the act passes constitutional muster. See Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984); Lovell v. State, 283 Ark. 425,678 S. W.2d 318 (1984). The third issue raised by the appellant is that the use of blood alcohol test results compels a defendant to testify against himself.

In Schmerber v. California, 384 U.S. 757 (1966), the United States Supreme Court held that the privilege against self-incrimination extended only to testimonial evidence, and blood alcohol test results are not testimonial. The Court reasoned that even though the test results were evidence which can be used against the defendant, his testimony was not involved.

Further, we have held that test results are admissible under our implied consent law. This law is valid and does not violate the provision against self-incrimination. Ark. Stat. Ann. § 75-1045 (Supp. 1983). Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975).

With regard to the admission into evidence of a prior conviction document which was subsequently used to enhance punishment, the state did not make a prima facie case. The trial court found that appellant had a prior DWI conviction on November 4, 1981, based on a conviction document stamped with the words “Defendant was advised by court of right to counsel, witness, trial and new law, etc., waived all rights.” The municipal clerk testified that the £tamp was entered in 1983, two years after the actual. conviction. She also testified it was the policy of the j udge to ask a defendant if he were represented by an attorney or wished to be, and that one would be appointed if necessary. The appellant made timely and proper objections to the altered document and to the testimony concerning the practice of the municipal court. Under these circumstances, an altered court record and testimony about the practice of the municipal court do not satisfy our standards as set forth in our previous decisions on proof of prior convictions. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976); Parker v. State, 258 Ark. 880, 529 S.W.2d 860 (1975); McConahay v. State, 257 Ark. 328, 516 S.W.2d 887 (1974).

Literally thousands of cases were held in limbo pending our review of the constitutionality of the Omnibus DWI Act of 1983. We have upheld this act on all the constitutional attacks to date. Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984); Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984); State v. Ziegenbein, 282 Ark. 162, 666 S.W.2d 698 (1984). The bench and bar should be on notice that we will require strict adherence to the principles of Baldasar v. Illinois, 446 U.S. 222 (1980) which bars prior uncounseled misdemeanor convictions from being used to enhance punishment for a subsequent offense. Careful adherence should be given to our decisions regarding proof of prior convictions in these cases.

Affirmed in part; reversed in part.

Hays, J., dissents in part.

Steele Hays, Justice,

dissenting. I agree with the majority on the first three points, but not on the last point.

The majority holds that the state did not make a prima facie case on the evidence of prior convictions based on standards set out in our previous cases. I fail to see however, how that conclusion is supported by our case law or. the authority on which the majority has relied.

Both Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976) and McConahay v. State, 257 Ark. 328, 516 S.W.2d 887 (1974) state that it is the presumption of waiver of counsel from a silent record that is impermissible. Silence on the matter does not make the record of conviction irrevocably inadmissible or inherently tained. Klimas in fact states the proper procedure to prove waiver of counsel when the record is silent:

It seems clear to us that when evidence, in whatever form, of a prior conviction is offered which is silent as to representation of the defendant by counsel or his waiver of the right of assistance of counsel, the state must first lay a foundation for its admission by evidence tending to show that defendant was in fact, represented by counsel or that he had knowingly and intelligently waived his right to the assistance of counsel.

And in Parker v. State, 258 Ark. 328, 516 S.W.2d 887 (1974), we found that Ark. Stat. Ann. § 43-2330 (Prima Facie Evidence of Former Conviction), while it must be strictly construed, does not prevent proof of prior convictions by admissible evidence other than that mentioned in the statute. In McConahay, commenting on the proper procedure to cure the constitutionally defective record, silent on the matter of counsel, we said: “The burden was upon the state to offer proper documents or evidence before the jury to correct the defects.”

Here, a silent record is not the issue, only the procedure followed in recording the information on the record. In addition to the stamped notation that counsel was waived, albeit after the fact, the clerk of the court stated unequivocally several times in her testimony that it was always the judge’s practice to inquire of the defendant whether he was represented by counsel or wished to be and that counsel would be appointed if necessary.

The appellant does not in any way contend that this was not the case, but objects only to the manner in which the waiver was recorded. No argument is given nor authority cited to show how the procedure in this case undermines the purpose of or fails to meet the standards for adequate proof of former convictions.

The evidence presented by the state was sufficient and properly admitted under the standards of Parker and Klimas to make at least a prima facie case that appellant had waived counsel. There is nothinginour line of cases on this point or in the majority opinion that indicates how such a showing was not made.


author: Kathleen Bell, Special Chief Justice. Steele Hays, Justice,

text:
    WAL-MART STORES, INC. v. Katherine YARBROUGH
    84-98
    681 S.W.2d 359
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984
    [Rehearing denied February 25, 1985.]

      J. L. Hendren, for appellant.

      Taylor, Vandergriff ¿r Morris, by: William T. Morris, for appellant.

      Hickman, Hays, and Newbern, JJ., would grant rehearing.

   Kathleen Bell, Special Chief Justice.

On March 19, 1980, at the behest of Mr. Archie Caudle, Assistant Manager of the Wal-Mart Store, the Appellee was arrested for shoplifting. The Appellee was tried in the Municipal Court of Fort Smith and was acquitted for the charge. She then initiated an action for false arrest, false imprisonment, malicious prosecution and intentional infliction of emotional distress.

At the conclusion of the Appellee’s case, the Appellant moved for summary judgment on the issue of punitive damages and for directed verdicts as to the issues of false arrest and intentional infliction of emotional distress and denied the other motions made by the Appellant. These motions were renewed by Appellant after both sides had rested and were denied by the trial court.

The jury awarded the Appellee $850 compensatory damages and $20,000 punitive damages. The Appellant moved for Judgment N.O.V. and for a new trial. The trial court denied those motions and this appeal then ensued, i Jurisdiction in the court is pursuant to Rule 29(1 )(o). We affirm.

The facts in this case, viewed most favorably to the Appellee, are that on March 19, 1980, the Appellee was shopping in the Appellant’s Towson Avenue store in Fort Smith, Arkansas for the second time on that date. On this particular occasion she was in the store for the purpose of purchasing dog food. While there she also picked up a coffee mug and a felt tip pen, value approximately fifty-nine cents (59‡). Appellee was observed by a store employee placing the pen on, or partially in, her purse. Assistant Manager Caudle was approached and informed of her actions. Caudle then commenced his personal observation of Appellee. At all times, Caudle was able to see the pen, which was contained in a cardboard package. Caudle observed Appellee for approximately 10-20 minutes, including the time she was in the check-out line paying for the other items. When Appellee was outside the store, she was approached by Caudle. He pointed to the still visible pen and asked if she had paid for it. Appellee told him no she had forgotten, but would return and do so. Caudle, Appellee and another male employee reentered the store. Appellee started in the direction of the check-out counter and was informed by Caudle they had to go to the back. Appellee was accompanied into the store office by Caudle and two other store employees.

Appellee testified at this point that she felt she was detained because of the behavior of Caudle and the presence of the second employee. Caudle testified that the purpose of the second employee was to ensure that Appellee did not bolt and run and that she would not have been allowed to leave the premises voluntarily.

Upon arrival in the office, Caudle immediately phoned the police and then informed Appellee she was under arrest. Appellee insisted to Caudle that she simply forgot she had the pen and was willing to pay for it. She also requested that he telephone a friend of Appellee’s, a retail merchant in the area, to verify her good character. Caudle stated that once the decision to stop was made, there was little or nothing the Appellee could have said to change that decision. He testified that he felt it was a good stop and it was the job of the jury to listen to her story and make a decision as to guilt or innocence. He said he therefore made no effort to believe the statement of Appellee.

The Appellant had an established procedure for the detention, interrogation, and prosecution of shoplifters. That procedure required that the person be interrogated after detention. The personal observation and the interrogation could lead to a decision that the person simply forgot to pay and should be released. The manual further states that the fact an item was not paid for does not necessarily mean a person was guilty of shoplifting.

Even though a part of Caudle’s job as assistant manager involved the apprehension of shoplifters, he testified he was not familiar with that procedure and it was not utilized by him. After the stop was made he felt it was his responsibility to proceed with prosecution and it was the duty of the court to determine any other issues.

On the day the matter was set before the Municipal Court of Fort Smith, the City Attorney, Jim Filyaw, was asked by the Appellee’s counsel to listen to her version of the incident. Filyaw did so and then approached Caudle with a recommendation to dismiss the charge. Filyaw had questions as to whether Appellee had the intent to steal and stated that he found Appellee to be open and truthful. The decision whether to proceed was left to Caudle. Caudle’s response was that once they arrest someone, they prosecute them regardless. The Appellee was tried and found not guilty.

The question the court is initially presented with is the issue of probable cause for the arrest and prosecution of the Appellee. “The test for determining probable cause is an objective one based not upon the accused’s actual guilt, but upon the existence of facts or credible information that would induce a person of ordinary caution to believe the accused to be guilty”. Kroger Co. v. Standard, 283 Ark. 44, 670 S.W.2d 803 (1984); Malvern Brick and Tile Co. v. Hill, 232 Ark. 1000, 342 S.W.2d 305 (1961). Unless both the facts and the reasonable inferences to be deduced from those facts are undisputed, this issue is to be submitted to the jury.

The appellant, replying upon Kroger Co. v. Standard, supra, contends that the trial court erred as a matter of law in submitting the issues of malicious prosecution and false imprisonment to the jury. This reliance is not well founded. The Kroger Co. Court found the Appellant had the benefit of the shoplifting presumption, Ark. Stat. Ann. § 41-2202(2) (Repl. 1977), which arises with the knowing concealment of unpurchased items. Applying, in conjunction, this presumption, Rule 301 of the Arkansas Rules of Evidence and the testimony of the Appellee, the Court held that there was not substantial evidence that Kroger failed to exercise the ordinary caution exhibited by the reasonably prudent merchant. Kroger Co. v. Standard, supra at pages 48-49.

Assistant Manager Caudle testified he was able to see the pen at all times during the period he was observing the Appellee. The shoplifting presumption did not arise there and thus, the Appellee did not have to overcome the burden imposed by Rule 301. The Appellant did have probable cause for the initial stop of the Appellee to question her with respect to the pen. However, it can not be held, as a matter of law, that the Appellant thereafter exercised ordinary caution in these circumstances. Once the decision to stop was made, the prosecution of Appellee was automatic, according to Appellant. There was no effort made to listen to, or believe, the explanation proffered by Appellee because there was nothing she could have said that could have changed the Appellant’s decision to prosecute. And additionally, the Appellant continued with the prosecution after the recommendation was made by the City Attorney that the action be dismissed.

While those facts, as were all others, were undisputed, they were susceptible to different inferences. The submission of the issues of false imprisonment and malicious prosecution to the jury was entirely appropriate in these circumstances. Kroger Co. v. Standard, 283 Ark. at page 47.

The Appellant contends that the issue of punitive damages should not have been submitted to the j ury because the facts were undisputed. It is not sufficient that the facts be undisputed. Before a trial judge can decide as a matter of law, the issue of punitive damages, the reasonable inferences to be deduced from those facts must also be undisputed. In this instance, Mr. Caudle testified that he had no knowledge of the shoplifting procedure enacted by the store and that this procedure was not used by him. It was his belief that any person leaving the store with unpaid for merchandise should be prosecuted and because of that belief, he made no effort to listen to an explanation of the detained individual. And in the fact of the City Attorney’s recommendation to dismiss, the decision of the Appellant was to continue with the prosecution. This recommendation had no effect upon Appellant’s decision because, once the initial decision to prosecute was made, it was not reconsidered.

The inferences to be deduced from those facts are not undisputed. The trial court could not, as a matter of law, have decided the issue of punitive damages.

The Appellant also contends that the Appellee was not detained because she returned to the store voluntarily and never asked to leave. The Appellant is apparently negating the testimony of Mr. Caudle. He testified that he had Appellee guarded from the time she was stopped outside the store until the time the police arrived. The Appellee was led into an office and guarded by employees of the Appellant. The confinement of Appellee within the boundaries determined by the Appellant was complete. Restatement of the Law of Torts (2d) § 39 (1965).

Appellant also argues that two of the jury instructions given by the court were erroneous and that the trial court erred by its refusal to give Appellant’s requested instruction. However, the Appellant made only general objections to the instructions given by the court. A general objection is insufficient to present the issue on appeal. Rule 51, Arkansas Rules of Civil Procedure.

The Appellant specifically objected to the trial court giving an instruction stating that “malice could be inferred from certain conduct.” It was understood by the court that the objection had reference to the court’s instruction on punitive damages, derived from AMI 2217 (Court Instruction 14). On appeal, the Appellant now asserts that AMI 2217 has no application in intentional tort cases, such as this one. This objection cannot be made for the first time on appeal. Blissett v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970).

Appellant next contends that the trial court erred in sustaining an objection made by Appellee’s counsel during closing argument. During Appellant’s closing statement, counsel stated Appellee had alleged Caudle had acted arbitrarily and capriciously because he had not verified Appellee’s reputation with Bill Fields as requested by Appellee. Counsel then commented, “I hope the jury will notice that no one has asked the City Attorney to check with Mr. Fields or other of plaintiff’s witnesses regarding the reputation or character of plaintiff.” Appellee’s counsel objected, stating this constituted a statement on facts not in evidence, that there was not proof whether the request had been made or not. The Appellant responded that he felt he was entitled to ‘‘mention lack of evidence, which could have easily been presented had plaintiff chose to do so.”

The court sustained the Appellee’s objection. The closing argument was not recorded and this exchange was reconstructed by counsel in chambers.

Control of counsel’s argument is within the wide range of discretion exercised by the trial judge. The exercise of that discretion will not be reversed, in the absence of abuse. Lewis v. Pearson, 262 Ark. 350, 556 S.W.2d 661 (1977); St. Louis, I.M. & S. Ry. Co. v. Earle, 103 Ark. 356, 146 S.W. 520 (1912).

The exercise of the trial court’s discretion here cannot be held to have been an abuse.

The appellant lastly contends that the evidence was insufficient to support the verdicts and the trial court erred in not granting Judgment N.O.V. The standard for substantial evidence is enunciated in Love v. H.F. Construction Co., Inc., 261 Ark. 831, 552 S.W.2d 15 (1977). Employing this standard, we can not hold as a matter of law, that ‘‘there is no reasonable probability in favor of Appellee’s version.”

From the testimony of Caudle, the jury could have reasonably inferred conscious indifference to the consequences of his action. Such a finding would sustain a verdict on punitive damages. Satterfield v. Rebsamen Ford Inc., 253 Ark. 181, 485 S.W.2d 192 (1972); Dalrymple v. Fields, 276 Ark. 185, 633 S.W.2d 362 (1982). There was also substantial evidence to support he verdict as to compensatory damages and the decision of the jury will not be disturbed.

Affirmed.

Hubbell, C.J., not participating.

Hickman and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. With due respect, I take a wholly different view than the majority. Just a few weeks ago we,decided Kroger Company v. Standard, 283 Ark. 44, 670 S.W.2d 803 (1984), on facts fundamentally indistinguishable from these. In Kroger, the customer admittedly was about to leave the store without paying for a ham when he was stopped in the store by the store manager. Here, the customer admittedly left the store without paying for a 59 cent felt tip pen. In both cases, the customer’s protestations of a lack of intent were supported by the j ury’s verdict, yet we held in Kroger that probable cause was present as a matter of law but in this case is an issue for the jury to decide on what seems to me even firmer footing.

Part of the problem may be due to the fact it is inconceivable anyone would steal an insignificant item when they have the money to pay for it, yet experience teaches that some do just that, deriving a satisfaction not readily understandable. However that may be, the municipal judge gave Mrs. Yarbrough the benefit of the doubt and acquitted her of any criminal intent. He may have been right in his j udicial function. But he may have been entirely wrong with respect to Mrs. Yarbrough’s actual state of mind at the time of the incident. Only Mrs. Yarbrough knows what she intended. The point is, the fact that the customer in this case was acquitted of a criminal charge dependant on proving intent by a much heavier burden, i.e. beyond a reasonable doubt, ought not to give rise to civil liability for damages when by her own admission she left the store without paying for the merchandise and it was at least partially concealed in her purse. The pen in a container was stuck into a pocket of her purse with part of it exposed.

It seems to me two things are wrong here: the customer is permitted to profit as a result of what was, at best, her own carelessness or, at worst, her own dishonesty, and no one can say with certainty which it was. She admitted deliberately putting the item in or on her purse. Secondly, the merchant is left in an impossible position in such cases. No matter how reasonable his belief is that an offense has been committed against his property, if the customer can convince the fact finder in a criminal case that he or she had no actual intent to steal, or is able to cast even a reasonable doubt on that issue, the merchant is then in peril of civil suit for both compensatory and punitive damages. Further the majority decision for all practical purposes means a merchant cannot have arrested someone who leaves his store with merchandise without paying for it. That simply ought not to be the law and in Kroger we had the forthrightness to, say so. And Kroger v. Standard, is not the only case in which this court has held probable cause to exist as a matter of law, notwithstanding a jury verdict to the contrary. See Missouri Pacific Railroad Co. v. Quick, 199 Ark. 1134, 137 S.W.2d 263 (1940).

My disagreement with the punitive damages award is even more pronounced. Where is there any evidence of malice, or of wantoness, or an indifference to the consequences of such magnitude that malice can be inferred? I submit it is non-existent. The most that can be said of the manager’s handling of the incident is that he was negligent in failing to be more familiar with the manual on dealing' with suspected thefts, but even if that could be said to be gross negligence, it still falls below the requirements of the law with respect to punitive damages. Kroger Grocery and Baking Co. v. Waller, 208 Ark. 1063, 189 S.W.2d 361 (1945).

Having observed the customer leave the store without paying for the goods, the manager handled the incident in a thoroughly responsible fashion. He asked her quietly to come to the office, where he called the police. He did not accuse her, nor berate or embarass her in front of customers, he simply did what he believed to be his duty without any unnecessary recrimination to the customer, and unless we can say his refusal to believe her claim that she had meant to pay for the item was maliciously inspired, or wantonly executed, the punitive damages award ought, in good conscience, to be remitted in full. This is precisely what we did on almost identical facts in Kroger v. Waller, supra.

. If a merchant does not have probable cause to have a person arrested who secrets an item and leaves a store without paying for it, then merchants are simply helpless to protect their property from shoplifters, lest they become subject to suit for false arrest in every such instance.

What is probable cause? The test for determining probable cause is an objective one based not upon the accused’s actual guilt, but upon the existence of facts or credible information that would induce a person of ordinary caution to believe the accused to be guilty. Malvern Brick & Tile Co. v. Hill, 232 Ark. 1000, 342 S.W.2d 305 (1961). If it did not exist in this case, it doesn’t exist.

Hickman, J., joins in this dissent.


author: William A. Eckert, Special Chief Justice. John I. Purtle, Justice,

text:
    Seth WARD and SENTRY SALES & SERVICE, INC. v. WORTHEN BANK & TRUST COMPANY, N.A.
    84-150
    681 S.W.2d 365
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984
    [Rehearing denied January 28, 1985.]

      Barber, McCaskill, Amler, Jones & Hale, for appellant.

      Allen, Cabe & Lester, P.A., for appellee.

       Hays, J., not participating.

   William A. Eckert, Special Chief Justice.

Prior to March 8, 1980, appellee Worthen Bank made six unsecured installment loans to appellant Ward, the loans being in connection with appellant’s Datsun dealership. In November, 1980, appellant sold the dealership to Bart Roach Datsun, Inc., the sales agreement providing that the purchaser assume liability for the balance owed on the promissory notes to appellee and a note to Union Bank. Appellee bank provided separate financing to Roach and was aware of the loan assumption agreement, but did not release appellant from liability.

Appellee mailed installment notices to an address furnished by Roach, who made payments until July, 1982, when he encountered financial difficulties. Roach sold the agency for considerations including royalty of $75 on each Datsun/Nissan unit the purchaser sold for twenty years. This royalty was assigned by Roach to appellee bank and filed as a financing statement with the Secretary of State on August 6, 1982.

All notes assumed by Roach became deliquent in August, 1982. Union Bank demanded and received payment of its note from appellant in September, 1982.

Appellee had made secured loans to Roach, which, on default, were foreclosed. Appellant, having reacquired the right to possession of the premises leased to Roach, denied appellee access to conduct foreclosure sale until an agreement was made. Consideration for using the premises required the appellee convey to appellant certain furnishings and fixtures on the premises. The bank was given right to use the premises through September, 1982.

The agreement contains mutual releases of both parties, and provides:

“. . . The Wards agree that they will not constitute or institute involuntary bankruptcy proceedings against Bart Roach or Bart Roach Datsun, Inc., nor will they encourage, instigate or assist anyone else in such an endeavor.”

Appellant was aware of the $75 royalty assignment when he made the rental agreement.

On October 19, 1982, appellee’s officers discussed the several loans in default, including recognition that the royalty assignment held from Roach could be set aside as a preference should Roach become bankrupt within ninety days from its execution. A decision was made to be “mum” with reference to the loans.

On October 22, 1982, appellee’s officer, by letter to Roach, wrote:

“. . . We have your copy of the letter from Webb Hubbell concerning your obligation to Seth Ward which amounts to some $25,000. It is our plan, and I recommend that it be your plan, that we do nothing about this, just don’t pay anything and delay talking about it. I am going to send a copy of this to our attorney to ask him to see where we stand in his mind legally and if there is something beneficial discovered, I will tell you . . .
# # *
We discussed the notes that are due us by Seth Ward, which amount to some $25,000 that we understand were assumed by you, but we were not informed and we did not accept any sort of a release of Seth. It is our plan to hold still on this for a while and work on Seth on getting those notes current come December time . . .

Appellee bank made demand on appellant for payment of all notes on December 17, 1982. This action followed, appellant counterclaimed for utility costs incurred by appellee under the rental agreement.

The Trial Court, sitting as a jury, rendered judgment for Appellee on its notes and on the counterclaim. Appellant was given judgment in his third party claim against Roach.

Appeal comes under Supreme Court Rule 29(1) (c).

Appellant argues that appellee’s conduct, specifically its intentional deferment in making demand on appellant while perfecting its rights in the royalty assignment, creates an estoppel.

Absent a duty otherwise imposed, the holder of a note is under no obligation to notify the maker of any deliquency. The printed installment notes each contain the following provision:

“RIGHTS PRESERVED. You can delay or omit enforcing any of your rights at any time under this note without losing them in the future.”

For appellant to establish estoppel, he has the burden, among other things, of proving:

Appellee had a duty to notify appellant.
Appellee failed to notify appellant.
Appellee relied upon such failure to receive notice in good faith.

Brixey v. Union Oil Company, 283 F. Supp. 353 (D.C. Ark. 1968).

Appellant contends he would have sued both Roach and appellee had he known of the default in note payments and of the royalty assignment; however, appellant had stated on September 10, 1982, that he would be the last person to put Roach in bankruptcy, that he would take a judgment and wait for Roach to inherit money. Roach was substantially indebted to appellant. It was to appellant’s interest that Roach not be discharged in bankruptcy.

Appellee’s decision to delay collection procedure against appellants was made subsequent to the date of the rental agreement. That agreement, in any event, did not preclude appellant from suing Roach; it provided that appellant not have Roach declared bankrupt.

Appellant was not in a confidential relationship with appellee. He had the right to determine the current status of his note obligations both from Roach and from appellee. He was actively engaged in matters related to Roach’s financial condition; he was represented by eminent counsel.

While appellee’s decisions to be “mum”, to withhold making demand on appellants, and advising Roach to withhold payment of his debts, is deficient in candor, such conduct is not actionable as a matter of law.

Failure to speak is the equivalent of fraudulent concealment only in circumstances involving a confidential relationship when a duty to speak rises where one party knows another is relying on misinformation to his detriment.

There are times when the law imposes a duty to speak rather than remain silent, when a failure to speak is the equivalent of fraudulent concealment. Berkeley Pump Co. v. Reed-Joseph Land Co. 279 Ark. 384, 653 S.W.2d 128 (1983):

“. . . But this rule is based on special circumstances not evident here, such as a confidential relationship, so that a duty to speak arises where one party knows another is relying on misinformation to his detriment. The general rule is to the contrary, and ordinarily, absent affirmative fraud, a party, in order to hold another liable in fraud . . . must seek out the information he desires and may not omit inquiry and examination and then complain that the other did not volunteer information. (See 37 Corpur Juris Secundum, Fraud, § 15, p. 242 and Smith, “Law of Fraud”, § 8 p. 18.) We find nothing in the abstract suggesting circumstances from which that rule of law might be found applicable. If fraud exists, whether affirmatively or by concealment, it ought not to be difficult to isolate and cite it ... ”

The party asserting estoppel must prove it strictly, there must be certainty to every intent, the facts constituting it must not be taken by argument or inference, and nothing can be supplied by intendment. Martin, Inc. v. Indiana Refrigeration Lines, Inc., 262 Ark. 671, 560 S.W.2d 228.

We do not find estoppel.

Appellant additionally contends that there was a novation because the bank accpeted note payments from Roach and sent notices of installments due to Roach’s address.

In order for there to be a novation it is necessary to show an intent on the part of the creditor to release an old debtor and substitute therefor a new debtor. Simmons National Bank v. Dalton, 232 Ark. 359, 337 S.W.2d 667. There must be a clear and definite intention on the part of all concerned that such is the purpose of the agreement.

The clear and definite intention does not have to be express but may be implied:

“ ‘It is not essential that the assent to and acceptance of the terms of the novation be shown by express words to that effect, but the same may be implied from the facts and circumstances attending the transaction, and in the conduct of the parties thereafter. Such consent is not to be implied merely from the performance of the contract by the substitute, for that might well consist with the continued liability of the original party, the substitute acting for the purpose in the capacity of agent for the original obligor. Elkins v. Henry Vogt Mch. Co., 125 Ark. 6, 187 S.W. 663.

The appellee did not release appellant on the notes nor were new notes substituted. Appellant acknowledged his intention to remain personally liable after the debt had been assumed. Ward testified that if Worthen had notified him of the default he would have paid the notes.

There is not sufficient evidence of a novation.

Appellant also argues that Ark. Stat. Ann. § 85-3-606(1) discharges him from liability during the time collection effort was suspended on the notes. The pertinent portions of the statute provide:

“Impairment of recourse or of collateral. —(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder
(a) without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of resourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person, except that failure or delay in effecting any required presentment, protest or notice of dishonor with respect to any such person does not discharge any party as to whom presentment, protest or notice of dishonor is effective or unnecessary; ...”

This statute applies where there is an enforceable contract not to sue a liable party. Glover v. National Bank of Commerce of Pine Bluff, 258 Ark. 771, 529 S.W.2d 333 (1975).

There is no enforceable promise by appellee not to sue Roach. Further, Roach was not the maker of the note. The statute is not applicable here.

Appellant counterclaimed for utilities sued by the bank during the period of the rental agreement.

Generally, the consumer of public utilities services is liable in contract for the charges for such services. 64 Am. Jur. 2nd 596, “Public Utilities,” § 60. Typically, the tenant will bear such expense. Appellant did not pay the utility charges; the amount and period of usage by the bank is disputed; the utility company is not a party to this action.

The rental agreement provides:

“6. Worthen and the Wards mutually release each other from any and all claims, obligations or rights that they may have against each other arising from the lease of the property at Second and Broadway . . .

From the evidence presented we do not find that the Trial Court’s judgment was clearly erroneous.

Affirmed.

Special Justice Lewis Epley joins in this opinion.

Hubbell, C.J., and Hays, J., not participating.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Roach assumed the notes here in question in November, 1980, at the time he agreed to purchase the dealership from Ward. Appellee took the assignment, agreed to collect from Roach, and did so until Roach defaulted in August of 1982. Appellee foreclosed on other notes which Roach owed to it but not on the notes executed by Ward in favor of appellee and assumed by Roach in the transfer agreement.

Roach sold the agency in August, 1982, and as part of the consideration he was to receive a $75.00 royalty on each vehicle sold by the dealership for the next twenty years. Roach assigned these royalty payments to appellee as part of his effort to pay his debts. Appellee then persuaded appellant to remain silent and not force Roach into bankruptcy until the royalty assignment was no longer subject to being set aside as a preferential transfer. After 90 days had expired and the royalty assignment was safe, appellee then sued appellant. So far as I am concerned the bank does not have clean hands and should be estopped from collecting the note executed by Ward and assumed by Roach. The royalty assignment will no doubt be applied to obligations other than the Ward note.


author: Per Curiam. John I. Purtle, Justice,

text:
    Clinton CAVIN v. STATE of Arkansas
    CR 84-191
    681 S.W.2d 913
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984

      William C. McArthur, for appellant.

      Steve Clark, Att’y Gen., by: Michael E. Wheeler, Asst. Att’y Gen., for appellee.
   Per Curiam.

On March 22, 1982 Clinton Cavin entered a plea of guilty to two counts of theft by deception. The court suspended sentence for a period of eight years on the condition that appellant make restitution to his victims in the amount of $66,240 of which $20,000 was to be paid on March 22, 1983 and the balance in annual installments of $5,000. The suspension was further conditioned upon payment of court costs, a fine of $10,000 and good behavior. On July 28, 1983 the suspension was revoked on a finding of the court that appellant had inexcusably failed to make any payments of restitution or court costs and committed him to the Arkansas Department of Correction for a term of eight years. The Cóurt of Appeals affirmed the revocation. Cavin v. State, 11 Ark. App. 294, 669 S.W.2d 508 (1984).

Petitioner now seeks permission to proceed in the circuit court with two allegations of ineffective assistance of counsel, neither of which is substantiated with facts or supported with a showing of prejudice. Petitioner first alleges that counsel failed to document his lack of income, but he fails to state what documentation was available. An assertion that counsel could have done something more is not grounds for an evidentiary hearing unless the petitioner demonstrates that there was in fact some specific evidence to be presented to the court. Blakely v. State, 283 Ark. 138 671 S.W.2d 183 (1984); Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982).

After the state responded to this petition and it had been submitted to us, petitioner requested permission to substitute another petition in which he would provide some factual support for the allegation concerning petitioner’s income. The facts consisted of statements that petitioner’s only income was an expense account and that petitioner.had worked and some commissions were due to be paid to him. The bare statements, however, do not demonstrate that counsel’s conduct in not eliciting the evidence at the revocation hearing so undermined the proper functioning of the adversarial process that the hearing cannot be relied on as having produced a just result. See Strickland v. Washington, -U.S__, 104 S. Ct. 2052 (1984). Counsel did produce evidence of petitioner’s financial status. There may have been other evidence, but the petition he has asked to substitute does not show it to be so significant that the outcome of the hearing was rendered unreliable because it was omitted. In nearly every trial and hearing there are facts which could have been brought out or witnesses who could have been called. Merely citing those facts or naming the witnesses is not enough to prove that the proceeding was unfair. Accordingly, the motion to substitute is denied.

Petitioner also alleged that counsel failed to object to the lack of written conditions of his suspended sentence. While it is true that written conditions of a suspended sentence must be provided to the convicted defendant, Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980), the question is before us in a petition for postconviction relief, not on direct appeal. To prevail on the allegation of ineffective assistance of counsel under Rule 37, a petitioner must do more than state that some right was not afforded him. He must establish actual prejudice arising from counsel’s conduct; that is, the petitioner must show that not having the written list of conditions prejudiced him in some specific way. The record, however, indicates that petitioner knew he was not abiding by the conditions of his release. There was nothing to suggest at the revocation hearing, nor is there anything to suggest in the Rule 37 petition, that petitioner was not fully aware of what he was required to do to remain free. An allegation of ineffective assistance of counsel without a showing of prej udice does not warrant further consideration by this court. Strickland v. Washington.

Petition denied.

John I. Purtle, Justice,

dissenting. In his petition to proceed in the trial court pursuant to a Rule 37 claim of ineffective assistance of counsel, petitioner states that counsel was ineffective by his “failure to object to lack of written conditions of petitioner’s probation.’’ We have held that failure to furnish written conditions of probation prevents revocation. In Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980) we stated:

[A]ll conditions for a suspended sentence, including any requirement of good behavior, must be in writing if the suspended sentence is to be revokable. Therefore, courts have no power to imply and subsequently revoke conditions which were not expressly communicated in writing to a defendant as a condition of his suspended sentence. [My emphasis].

In addition to precedent we have statutory responsibility to see that trial courts place conditions of suspended imposition of sentence in writing. Arkansas Stat. Ann. § 41-1203 (4) (Repl. 1977) states:

If the court suspends the imposition of sentence on a defendant or places him on probation, the defendant shall be given a written statement explicitly setting forth the conditions under which he is being released. [My emphasis].

Certainly the petitioner was prejudiced by the failure of defense counsel to bring this to the attention of the court. It is my opinion that had he done so the court would have delayed revocation and issued a set of written conditions as required by law and precedent. No harm can possibly be done by allowing the trial court to reevaluate the case. Being in prison is certainly more prejudicial to one’s well being then being on the outside looking in. Prejudice is obvious in this case. There are no words more specific than those used in the petition. How else could it be made more specific than the way it is stated? The statute requiring conditions of suspension or probation to be in writing is not new. The Ross case had been decided four years before this case was tried. It seems to me that failure to bring this matter to the attention of the court is of the same magnitude as failing to point out that the rules for a speedy trial have been ignored, and we have granted Rule 37 relief for failure to bring this to the attention of the court. Clark v. State, 274 Ark. 81, 621 S.W.2d 857 (1981). Therefore, I believe we should at least give the trial court an opportunity to examine the proceedings and make its own determination of the facts and the law. Many trial courts would appreciate the opportunity to look at the proceedings after trial and appeal to. see if there is some action needed to further the criminal justice system and to see that justice is done insofar as possible.


text:
    Alvin HAMMOCK v. Margaret Curry GRAYSON, et al.
    681 S.W.2d 352
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984

      Jones if Tiller Law Firm, by: Marquis E. Jones, for appellant.

      Laney, Gaughan if Womack, by: Tim A. Womack, for appellee.
   Per Curiam.

On August 15, 1984, appellants filed a notice of appeal of the trial court’s decision rendered July 20, 1984. A separate designation of the record was filed. The notice did not contain a statement that the transcript, or specific portions thereof, had been ordered. Arkansas Rules of Appellate Procedure Rule 3(e). On October 24, 1984, appellants filed an amended notice of appeal which recited that the complete transcript had been ordered. On November 9, 1984, appellants moved for an order extending the time to file their appeal. The motion stated that the transcript could not be prepared within the requisite 90 day period to docket the appeal with this court. The motion requested until February 15, 1985 to file the record and transcript.

On November 9,1984, Sherry Freeland, the chancellor’s court reporter, filed an affidavit which avérred that on November 6,1984 she received a phone call from appellants’ attorneys’ office advising that appellants needed an extension of time to file an appeal, that until that date she had no notice that an appeal had been filed, and that as of November 9, 1984, the reporter’s transcript was not ordered. Also, on November 9, 1984, the chancellor entered an order finding that the reporter’s transcript was not ordered, that both notices of appeal failed to comply with A.R.C.P. Rule 11 and Rules 3 and 6 of the Arkansas Rules of Appellate Procedure, and that the Motion for Extension of time was denied.

On the afternoon of November 9, 1984, appellants filed a second motion for extension of time, in which they recited that contemporaneously with the filing of the second motion they had purchased and received the record from the Ouachita County Clerk and had ordered the transcript from the court reporter and had tendered the amount estimated to be due for its preparation. On November 13, 1984, appellants filed with us a Motion for Rule on the Clerk which simply recites the facts as we have just outlined. Appellees filed a response and brief to appellants’ motion objecting to the granting of the motion and pointing out that until November 6,1984 the court reporter had never been notified that the record had been ordered or even that a notice of appeal had been filed.

We deny the motion for Rule on the Clerk. The appellants had not ordered the transcript by the time they filed their first notice of appeal as required by the Arkansas Rules of Appellate Procedure Rule 3(e). The appellants had not ordered the transcript by October 24, 1984 when they filed their amended notice of appeal and certified that it had been ordered. They only ordered the transcript after the trial court denied their first motion for extension of time. The trial court certainly did not abuse its discretion in denying appellants’ second motion for extension of time.

Appellants’ motion for Rule on the Clerk is denied.

Purtle and Hollingsworth, JJ., dissent.

John I. Purtle, Justice,

dissenting. Appellants allege they gave timely notice of appeal and notified all proper parties, including the reporter. The notice did not contain a statement that the transcript had been ordered as required by our rules and prior cases. The amended notice of appeal did contain a statement that the transcript had been ordered. The reporter stated she did not receive the amended notice until November 6, 1984. Three days later appellants made a written request for an extension of time because the reporter could not complete the transcript prior to expiration of the 90 days from notice of appeal. This was a true statement and complies fully with Ark. R. App. P., 5 (b) which in part states: “[U]pon finding that a reporter’s transcript of such evidence or proceeding has been ordered by appellant, and upon a further finding that an extension is necessary for the inclusion in the record of evidence or proceedings steno-graphically reported, [the trial court] may extend the time for filing the record on appeal ...”

Where there has been a technical failure to comply with the rules but no prejudice to the opposing party I would grant the rule on the clerk.

Hollingsworth, J., joins in this dissent.


author: Per Curiam.

text:
    Dr. Helen S. SHAEFER v. James Franklin McGHEE
    681 S.W.2d 353
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984

      Janies Smedley, for appellant.
    No response.
   Per Curiam.

The clerk of the court refused to file the record in this case because of uncertainty about whether the notice of appeal, filed on July 6, was timely. The judgment bore conflicting filing stamps, a somewhat inconspicuous one reading “Filed May 21,1984’ ’ and a more prominent one reading “Filed & Recorded June 7, 1984.” We remanded the question to the circuit judge, who determined that the judgment was “filed of record” on June 7. That finding, too, is not without ambiguity, but we think it proper to let the record be filed.

The doubt, however, should not have arisen. The time for filing the notice of appeal runs from the date the judgment or decree is filed in the circuit or chancery clerk’s office, not from its recordation. Hence the filing date should be clearly stamped on the document. If the date of recording is also to be stamped, the stamp should not include the word “filed.” All circuit and chancery court clerks are directed to conform their practice to this opinion, a copy of which will be forwarded to them by the Judicial Department.

Rule granted.


text:
    Vernon Dale TRAVIS v. STATE of Arkansas
    680 S.W.2d 911
    Supreme Court of Arkansas
    Opinion delivered December 21, 1984

      Faber D. Jenkins, for appellant.
    No response.
   Per Curiam.

Petitioner, Vernon Dale Travis, by his attorney, Faber D. Jenkins, has filed a motion for a rule on the clerk in which Faber D. Jenkins admits it was his fault that the record was not timely filed.

We find that the attorney’s sworn affidavit admitting fault for failure to timely file the record is good cause to grant the motion.

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


author: George Rose Smith, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Hugh C. VICK, et al
    84-293
    682 S.W.2d 731
    Supreme Court of Arkansas
    Opinion delivered January 14, 1985

      Thomas B. Keys and Phillip N. Gowen, for appellant.

      Bill W. Bristow, P.A., for appellees.
   George Rose Smith, Justice.

The appellees owned a rectangular tract of commercial property having a 300-foot frontage on Caraway Road, a principal commercial thoroughfare in the city of Jonesboro, and extending back 600 feet from the frontage line. In December, 1981, the Highway Commission brought this action to condemn about three tenths of an acre, in the shape of a right triangle lying along the frontage for 117 feet and running back along the adjacent side for 223.9 feet. The Commission deposited $33,900 in court, which the landowners withdrew. At the trial in January, 1984, the jury fixed the value of the condemned tract at $90,000.

On direct appeal the Commission argues that the valuation testimony of the landowners’ two expert witnesses should have been stricken because there was no fair and reasonable basis for their conclusions. Ark. State Hwy. Comm’n v. Cook, 257 Ark. 98, 514 S.W.2d 215 (1974). It is argued that the witnesses erroneously relied upon sales of smaller tracts that, owing to their size, were not comparable as a matter of law.

We disagree. The witnesses considered prior sales of some 13 smaller tracts in the Caraway Road area. They explained how they had made adjustment for differences in time (to give effect to inflation), in area, and in frontage. The witnesses explained in detail how they had arrived at their valuation. We find no abuse of the trial court’s discretion in allowing the testimony in question. As we said in Ark. State Hwy Comm’n. v. N.W.A. Realty Corp., 262 Ark. 440, 557 S.W. 2d 620(1977):

It is the well established rule that the decision of the question whether the conditions surrounding another tract of land or its sale are sufficiently similar to the circumstances of the pending case and the land involved to admit evidence of its sale price as evidence of the value of the land in question rests largely in the discretion of the trial court.

Similarity in the size of the two tracts is seldom exact, requiring adjustments by the expert witness, and it is only one of the factors to be considered. See Cook, supra. We cannot say as a matter of law that the sales relied upon below were so lacking in comparability as to be irrelevent or misleading. That being true, the experts’ opinions were admissible, their weight being for the jury to decide.

On cross appeal the landowners argue that the trial court’s allowance of interest at the rate of only 6% per annum upon the $56,100 difference between the Commission’s deposit and the amount of the verdict is so inadequate as to amount to a taking of their property without just compensation.

To support their contention the landowners proved that during the period between the Commission’s entry on the land in 1981 and the return of the verict in 1984, money could be invested in bank certificates of deposit at 11.5% interest and borrowers were required to pay interest at rates ranging from 13.5% to 18%. The trial judge felt that he was bound by the statute which governs Highway Commission condemnations and allows interest at 6% from the date of surrender of possession to the date of payment. Ark. Stat. Ann. § 76-536 (Repl. 1981). That statute, we have held, was not superseded by a general law increasing to 10% the interest rate allowable on judgments in general. Ark. State Hwy. Comm’n. v. Scott, 264 Ark. 397, 571 S.W. 2d 607 (1978).

The landowners’ position in the case at bar is right. As a matter of just compensation and due process under the federal and state constitutions, a landowner cannot be denied interest on the unpaid part of the award during the time he is deprived both of the use of the land and of the money representing its value. Housing Authority of the City of Little Rock v. Rochelle, 249 Ark. 524, 530, 459 S.W. 2d 794 (1970); Ark. State Hwy. Comm’n v. Stupenti, 222 Ark. 9, 257 S.W.2d 37 (1953). In Stupenti we quoted from a Supreme Court case holding that the landowner is not limited to the value of the property at the time of the taking; he is also entitled to such an addition as will produce the full equivalent of the value as if paid contemporaneously with the taking. Interest “at a proper rate” was held to be a good measure by which to ascertain the amount to be added. Jacobs v. United States, 290 U.S. 13 (1933). Since a constitutional right is involved, the interest rate to be allowed may exceed that specified by statute. Redevelopment Agency of City of Burbank v. Gilmore, 198 Cal. Rptr. 304 (Cal. App. 2 Dist. 1984); State by Spannaus v. Carney, 309 N.W.2d 775 (Minn. 1981); Edwareds v. Ark. Power Light Co., 638 F.2d 1149 (8th Cir. 1982), Arnold J., concurring. Our holding in Scott, supra, is distinguishable, for there the constitutional issue was not raised, the landowner’s contention being based on the statutes.

We conclude that the trial judge was mistaken in limiting the allowable interest rate to 6%. That statutory limitation cannot be constitutionally applied in the circumstances of this case. We need not remand the cause for a determination of the proper rate of interest to be allowed, for the landowners’ counsel conceded during the oral argument that the proof does not support more than 10% per annum, which is also the rate allowable by statute on judgments. We accordingly modify the judgment on cross appeal to allow 10% simple interest and remand the case for the entry of a judgment conforming to this opinion.

In closing, we observe that the appellant’s abstract of the record is deficient in two respects, though not so flagrantly so as to warrant an affirmance on that ground. First, counsel have properly abstracted in narrative form the testimony of the landowners’ expert witnesses on direct examination, but their extensive cross examination has been improperly copied in question and answer form. Second, no diagram of the tract in question has been reproduced as contemplated by Rule 9 (d), making it unnecessarily difficult for the court to have a clear understanding of the testimony.

Affirmed on direct appeal, modified on cross appeal.


author: Robert H. Dudley, Justice.

text:
    Gregory EVANS v. Larry WHITE and Debbie ARANT
    84-191
    682 S.W.2d 735
    Supreme Court of Arkansas
    Opinion delivered January 14, 1985

      Ponder ér Jarboe, by: Dick Jarboe, for appellant.

      Cathey, Goodwin, Hamilton ér Moore, for appellees.
   Robert H. Dudley, Justice.

Appellee, Debbie Arant, aged 19, borrowed her grandmother’s automobile so that she and her friend, Shelia Stanfill, could drive from Paragould to Current River beach, just north of Pocahontas. Debbie promised her grandmother that she would not let anyone else drive the car. After an uneventful trip to the beach, the two of them drank some wine and met appellee Larry White. They decided to drive Debbie’s grandmother’s car to Larry’s home in Jonesboro. Debbie started driving, but just south of Pocahontas she asked that one of the others drive because of the wine she had drunk and because she was unfamiliar with the road. Both Shelia and Larry offered to drive, and Debbie chose to let Larry drive. Shortly thereafter, Larry ran into the rear of the car owned and driven by appellant, Gregory Evans.

The jury awarded appellant Gregory Evans a verdict of $15,000 against appellee Larry White but found that White was not the agent of appellee Debbie Arant. Appellant Evans contends that, as a matter of law, Larry White was Debbie Arant’s agent and that the trial court committed error in allowing the matter to go to the jury. We find no error and affirm. Jurisdiction of tort cases is in this Court. Rule 29(1) (o).

We have adopted the definition of agency contained in the Second Restatement of the Law of Agency, § 1, comment a, which provides that the relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control, and that the other consents so to act. The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on the principal’s behalf and subject to his control. Crouch v. Twin City Transit, 245 Ark. 778, 434 S.W.2d 816 (1968). The two essential elements of the definition are authorization and right to control.

Ordinarily, agency is a question of fact to be determined by the trier of fact, but where the facts are undisputed, and only one inference can reasonably be drawn from them, it becomes a question of law. Campbell v. Bastian, 236 Ark. 205, 365 S.W.2d 249 (1963).

In this case, the facts concerning the first element were undisputed; Larry White was willing to act for Debbie Arant, and she authorized him so to act. However, the facts concerning the second element were in dispute. Debbie Arant, the only witness on the subject of agency, testified on cross-examination that she retained some control but on re-direct examination that she did not have any right to control. Since more than one inference can be drawn from her testimony about the element of control, the trial judge correctly allowed the jury to decide the issue.

Affirmed.


author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    Ed BAILEY v. STATE of Arkansas
    CR 84-202
    682 S.W.2d 734
    Supreme Court of Arkansas
    Opinion delivered January 14, 1985

      Greene Law Office, for appellant.

      Steve Clark, Att’y Gen., by: Patricia G. Cherry, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Edward Lee Bailey was charged by felony information with battery in the first degree, a class B felony. In a preliminary hearing before the Little Rock Municipal Court to establish probable cause, the state called two witnesses to show that Bailey had become angry when Jessie Lee Henson was unable to pay for two beers anda hot dog in Bailey’s club. Henson said he asked his companion, Don Stewart, to go outside to the car and bring in Henson’s billfold, but Bailey grabbed Stewart, drew a pistol and, according to Stewart and Henson, shot Henson in the throat, leaving him severly handicapped. No one testified for the defense.

Arguing that the shooting could have been accidental, Bailey asked that the charge be lowered to third degree battery, a misdemeanor. The municipal judge reduced the charge as requested, fining Bailey $850 and suspending a one year jail sentence.

The state refiled the original felony charges in Circuit court where Bailey was convicted by a jury verdict and a sentence of eight years in the Department of Correction was imposed. On appeal, Bailey argues that Article 2, Section 8, of the Constitution of Arkansas, providing that no one shall be twice put in jeopardy of life or liberty, was violated by the trial in Circuit Court, after he had been tried and convicted in the Little Rock Municipal Court for the same offense.

The answer to appellant’s argument lies in the fact that jeopardy did not attach by reason of the preliminary hearing before the Little Rock Municipal Court. Felonies are heard by municipal courts only to determine whether probable cause exists and municipal courts may either bind the accused over to the circuit court or, if the proof is lacking, release the accused from custody. See Ark. Stat. Ann. § 22-709 (Repl. 1962), §§ 43-603, 618 and 619 (Repl. 1977). In the latter event, the state may pursue the charge directly in circuit court. A municipal court has no jurisdiction to render a final judgment on a felony information, and it may not reduce a felony to a misdemeanor. To do so, would be rendering a final judgment. McArthur v. Circuit Court of Pulaski County, 253 Ark. 501, 488 S.W.2d 5 (1972).

Appellant cites us to Decker v. State, 251 Ark. 28, 471 S.W.2d 343 (1971), where we held that double jeopardy did not attach. Decker had escaped from an arresting police officer by drawing a concealed weapon; he took the officer’s service revolver and fled, later to be recaptured. Decker pleaded guilty in municipal court to the crime of drawing a weapon on a law officer, a misdemeanor. Afterwards he was charged with robbing the officer of his revolver, a felony. We rejected his double jeopardy argument because two separate crimes had been committed. Bailey now submits by analogy we should find double jeopardy because a single crime is involved in this case as opposed to the two crimes in Decker. The argument overlooks the fact that, unlike the Decker case, the state did not initially charge Bailey with a misdemeanor and proceed to trial in municipal court. Had it done so, double jeopardy would prevenía second trial where separate crimes are not involved.

The judgment is affirmed.

Purtle, J., dissents.

Holt, C.J., and Newbern, J., not participating.

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion because it overlooks the fact that appellant was tried and convicted in municipal court on a misdemeanor third degree battery charge, a lesser included offense of first degree battery. Certainly the municipal court did not have jurisdiction to try a felony case. It did have authority to conduct the preliminary hearing. Arkansas Stat. Ann. § 43-603 states:

Where the arrest is made in the county in which the offense is charged to have been committed, the magistrate before whom the defendant is carried, shall forthwith proceed to an examination of the charge; and, if the offense charged be a felony, shall commit, hold to bail or discharge, as the case may be; or, if he have jurisdiction to hear and finally try the charge, shall proceed to final determination and judgment therein.

A person commits battery in the third degree if he purposely causes injury to another person or negligently causes physical injury to another person by means of a deadly weapon. Arkansas Stat. Ann. § 41-1603. He commits battery in the first degree if with the purpose of causing serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon. Ark. Stat. Ann. § 41-1601 (1) (a).

It seems logical that if the magistrate has the authority to admit to bail or to discharge the accused he has the authority to convict for a misdemeanor. Arkansas Stat. Ann. § 43-603 states in part: “[T]he magistrate ... if he has jurisdiction to hear and finally try the charge, shall proceed to final determination and judgment therein.” Certainly the municipal court had jurisdiction to convict the appellant of battery in the third degree which is a misdemeanor. The only difference in first and third degree battery in the circumstances of this case is whether the shooting was intentional or negligent. As the trier of fact the municipal court had the duty to decide this issue and obviously found the shooting was unintentional.

Allowing the prosecutor to file directly in Circuit Court after losing in municipal court gives the state two bites at the apple and places an accused in j eopardy a second time for the same offense if the municipal court fails to convict. At any time before a trial is held in municipal court the state has the right to bypass the municipal court and file a felony information directly in Circuit Court, even though the pending charges in municipal court were misdemeanors. McArthur v. Pulaski County Circuit Court, 253 Ark. 501, 488 S.W.2d 5 (1972). At page 504 of McArthur this court stated: “If the state had, after the violation of this act was held to be a misdemeanor by this court, and before any information had been filed in the circuit court, instituted charges in the municipal court, we would agree that the municipal court had acquired jurisdiction.” That is virtually the same situation present in this case.

The majority opinion cites Decker v. State, 251 Ark. 28, 471 S.W.2d 343 (1971), as holding that jeopardy did not attach when Decker was tried and convicted on a misdemeanor count in municipal court. This court held that Decker that there were two separate crimes committed and the finding of guilt on the misdemeanor charge of drawing a weapon had nothing whatsoever to do with the felony charge of robbery. Therefore, Decker is inapposite to the present case.

The state was present and participated in the hearing of this case in municipal court and at the conclusion of the trial the court found the evidence presented warranted a third degree battery conviction. Accordingly, sentence was imposed and executed by payment of the fine and commencement of serving the suspended sentence. Although I personally may have held that appellant should be bound over, I cannot hold as a matter of law that the municipal court abused its descretion.

Where there has been no trial on the merits of a case in municipal court or the trial if held was fraudulent or collusive there is no bar to filing an information directly in Circuit Court. State v. Cheek, 25 Ark. 206 (1868); Bradley v. State, 32 Ark. 722 (1878). If tried and a valid sentence is imposed, however, it is a bar to additional punishment. Lampkin v. State, 271 Ark. 147, 607 S.W.2d 397 (1980).


author: David Newbern, Justice.

text:
    Opaline King HILL, et al v. Robert L. GILLIAM, et al
    84-194
    682 S.W.2d 737
    Supreme Court of Arkansas
    Opinion delivered. January 14, 1985

      Crumpler, O’ Conner & Wynne, by: John W. Unger, Jr., for appellant.

      Keith, Clegg & Eckert, Oliver M. Clegg, for appellee.
   David Newbern, Justice.

This is a case presenting a question of oil, gas or mineral rights, thus our jurisdiction is based on Supreme Court and Court of Appeals Rule 29(1) (n).

In 1926 Nelson Williams, owner of the North 9/20ths of the Northwest Quarter of the Northwest Quarter of Section 26, Township 18 South, Range 17 West, Union County, Arkansas, conveyed a one-half mineral interest in the property to J. H. Long. The remaining surface and one-half mineral interest held by Williams was forfeited to the state by Williams in 1931 for failure to pay taxes. The State of Arkansas conveyed the surface and one-half mineral interest, which Williams had forfeited, to Jefferson Phillips in 1935. In 1937, Phillips conveyed a one-fourth non-participating interest in the minerals in the same property to Grimes. Later in 1937, Phillips conveyed to S. E. Gilliam an undivided one-half interest in the property. The parties to this case agree that at that point Gilliam owned an undivided one-half interest in the surface and an undivided one-half interest in the minerals of the North 9/20ths of the Northwest Quarter of the Northwest Quarter of Section 26, subject only to the outstanding one-fourth non-participating mineral interest held by Grimes.

In 1947, Gilliam, joined by his wife, executed a quitclaim deed back to Phillips. The deed contained the following:

[W]e ... do hereby grant, sell and quit-claim subject to the reservations set out below . . . the following lands lying in the County of Union and State of Arkansas; to wit: North 9/20 acres of the NW 1/4 of the NW 1/4 of Section 26, Township 18 South, Range 17 West.

The language of the reservation came immediately thereafter and was as follows:

The grantors hereto reserve from this Deed an undivided 1/2 interest in and to the oil, gas and other minerals, in, under and upon the above-described lands, or which may be produced therefrom, together with the right of ingress and egress for the purpose of prospecting for, producing, removing, refining and marketing of same, and all other rights useful or incident thereto.

The heirs of Phillips brought this action to quiet title, claiming that Gilliam’s reservation was not effective to reserve to Gilliam the one-half interest in the minerals rights. The defendants, heirs of Gilliam, contended the reservation had the effect of keeping the one-half mineral interest in Gilliam. The chancellor agreed with the defendants, and the plaintiffs appeal. We affirm.

The Phillips heirs argued that application of the rule of Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (1940), would require the chancellor, and now this court, to construe the deed as having conveyed the one-half mineral interest owned by Gilliam to Phillips and reserving nothing to Gilliam. The Gilliam heirs agrued that even if the rationale of the Duhig Case were to be adopted, it would be subject to an exception which makes the rule inapplicable to quit-claim deeds. The Duhig Case involved construction of a warranty deed containing a reservation, and in Rosenbaum v. McCaskey, 386 So. 2d 387 (Miss. 1980), the Mississippi Supreme Court held the Duhig case inapplicable to a quit-claim deed containing such a reservation.

In his letter opinion, the chancellor relied on the Rosenbaum Case and held the Duhig Case does not apply when the reservation appeals in a quit-claim deed. He also noted estate tax returns of S. E. Gilliam and his wife which had been introduced by the Gilliam heirs to show that the one-half undivided mineral interest was included in their taxable estates. The Phillips heirs contend the returns were irrelevant and thus inadmissible. As the case can be decided on the basis of the written instrument under consideration, we need not decide whether it was error for the chancellor to admit into evidence the Gilliam’s estate tax returns. If it was error, it was harmless and may be disregarded in the de novo review. Walker v. Walker, 262 Ark. 648, 559 S.W.2d 716 (1978).

The opinion in the Duhig Case was composed for the Texas Supreme Court by a commissioner who expressed his personal opinion that when a deed purports to reserve one-half of the mineral interest, and the grantor owns only one-half of the mineral interest, the language of the deed is ambiguous but that “. . .when resort is had to established rules of construction and facts taken into consideration. . .it becomes apparent that the intention of the parties to the deed. . .” was that the grantee take the one-half interest in the minerals owned by the grantor. 135 Tex. at 506-507, 144 S.W.2d at 879-880. Apparently the “construction” rule the commissioner would have applied was that the language of reservation used by the grantor referred only to the one-half mineral interest owned by the third party.

The commissioner, however, noted that the members of the Texas Supreme Court for whom he was writing had expressed a rationale for decision which was entirely different. The Texas Supreme Court’s decision, and thus the holding of the case, is that a grantor may not agree to warrant and defend title to a property interest and then, in a later clause in the same instrument, breach that warranty by reserving to himself some portion of that same property interest. The principle of estoppel is held to apply just as it would if the grantor in a warranty deed did not own property at the time he executed the deed but acquired it later. 135 Tex. at 507-508, 144 S.W.2d at 880-881.

Thus, the holding of the Duhig Case is not at all inapplicable here, as Gilliam warranted nothing by conveying by quit-claim. The chancellor’s refusal to apply the holding of the Duhig case was thus correct.

The Phillips heirs would have us apply the so-called “one step” approach, i.e., that the grantor’s reservation is not a second step but is merely a reference to the already outstanding interest. That is the rationale expressed by the commissioner in the Duhig Case opinion. They cite Brown v. Kirk, 127 Colo. 453, 257 P.2d 1045 (1953); Garraway v. Bryant, 224 Miss. 459, 80 So. 2d 59 (1955); and Murphy v. Athans, 265 P.2d 461 (Okla. 1953), as having adopted that approach. While the estoppel principle is not specifically mentioned in Sny of those cases, the holding of each is entirely dependent upon the conveyance having been by warranty deed. In each it is noted that the grantor’s reservation was construed as an exception to the warranty or intended to protect the grantor against a suit on his warranty.

In the case of a quit-claim deed containing a reservation such as the one here the reservation can have only the purpose of notifying the grantee of the mineral interest not owned by the grantor or the purpose of keeping the title to the reserved interest in the grantor. A quit-claim deed conveys the interest of the grantor in the property described in the deed. Smith v. Olin Industries, Inc., 224 Ark. 606, 275 S.W.2d 439 (1955). It is not suggested the grantor of such a deed has any duty or reason whatever to notify his grantee of the interest he does not own. In this case, the grantee, Phillips, was known by Gilliam, the grantor, to have knowledge of Long’s one-half interest in the minerals, as Phillips was in the chain of title subsequent to the grant to Long and had been the grantor in the deed to Gilliam.

We look to the deed and the context in which it was made to ascertain the intent of the parties. Continental Casualty Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971); Davis v. Collins, 219 Ark. 948, 245 S.W.2d 571 (1952). In this case the deed and the context in which it was made show it was intended that Gilliam keep the one-half mineral interest. In view of the unlikeliness that Gilliam intended the reservation as notice to Phillips of Long’s one-half interest in the minerals, the language of the reservation would be surplusage if it was not intended to keep the one-half mineral interest in Gilliam. We will not treat language of a deed as surplusage if we can attribute a reasonable meaning to it. Wynn v. Sklar, 254 Ark. 332, 493 S.W.2d 439 (1973). The reference to the reservation in the granting clause is an additional factor showing the grantor’s intent to keep the mineral interest.

Affirmed.


text:
    John Wesley SCOTT v. STATE of Arkansas
    CR 84-125
    681 S.W.2d 915
    Supreme Court of Arkansas
    Opinion delivered January 14, 1985

      Gibson Law Firm, by: John F. Gibson, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Michael E. Wheeler, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is a criminal case in which the sentence was for more than 30 years. Our jurisdiction arises from Supreme Court and Court of Appeals Rule 29(1) (b).

John Welsey Scott was found guilty of rape in violation of Ark. Stat. Ann. § 41-1803(l)(c) (Repl. 1977), and of carnal abuse in the first degree in violation of Ark. Stat. Ann. § 41-1804(1) (Repl. 1977).

Rape, as defined in Section 41-1803(1 )(c) is a class Y felony, Ark. Stat. Ann. § 41-1803(2) (Supp. 1983) and, if the sentence is not to life imprisonment, carries a maximum imprisonment term of 40 years. Ark. Stat. Ann. § 41-901(l)(a) (Supp. 1983).

Carnal abuse in the third degree is a class C felony, Ark. Stat. Ann. § 41-1806(2) (Repl. 1977), which carries a maximum sentence to imprisonment of 10 years, Ark. Stat. Ann. § 41-901(d) (Supp. 1983).

Evidence showed the defendant began a sexual relationship, including intercourse, with his step-daughter when she was eleven years old and continued it until she was thirteen. The jury fixed the punishment at 40 years for rape and 10 years for first degree carnal abuse. At the close of the evidence the state’s counsel asked that the sentence be to consecutive prison terms. At that point defendant’s counsel asked for ‘‘an opportunity for a pre-sentence report,” to which the judge repied that “having heard during testimony the background of the [d]efendent,” he had “sufficient facts” and that the “motion for a pre-sentence report” was denied.

The only point raised on appeal is a contention that the judge abused his discretion in “refusing to consider a presentence report.”

It is not clear from the record or the briefs whether the appellant’s counsel was asking for a continuance to permit him to have a report prepared or moving the court to have a pre-sentence investigation conducted pursuant to Ark. Stat. Ann. § 41-804 (Repl. 1977). Presumably it was a motion for a continuance, as Section 41-804 authorizes a pre-sentence investigation if punishment is fixed by the court, and not if punishment is fixed by the jury as in this case. See Ark. Stat. Ann. § 41-802 (Repl. 1977), 30 Ark. L. Rev. 222, 227-228 (1976).

The only case cited by the appellant is Killman v. State, 274 Ark. 422,' 625 S.W.2d 489 (1981), which held that it was not error for the trial judge to refuse to permit evidence of mitigating circumstances to be presented to the jury, as evidence in mitigation goes to the court which must consider possibilities of probation or suspension of the imposition of a sentence.

Beed v. State, 271 Ark. 526, 609 S.W. 2d 898 (1980), was more like this case. It was tried to a jury which fixed the punishment, and the court sentenced the appellant there to long, consecutive terms of imprisonment. Although the conviction was reversed on other grounds, with respect to the appellant’s point objecting to failure to have a presentence investigation or report to determine any mitigating circumstances this court said:

The resort to presentence investigation is discretionary with the trial court. Since the court made a life sentence, a 50 year sentence and a 10 year sentence run consecutively, it might have been the better practice to first have a presentence investigation, but we find no abuse of the trial court’s discretion in this case. [271 Ark. at 548, 609 S.W.2d at 913].

See also Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983).

As in the Beed Case, given the nature of the offense and the punishment fixed by the jury, it would have been better practice for the court to have permitted the appellant to prepare and submit a pre-sentence report. In deciding the prison terms were to run consecutively, the trial court made reference to the evidence he had already heard. It thus appears he exercised his discretion and did not just mechanically make the sentences consecutive. Acklin v. State, 270 Ark. 879, 606 S.W.2d 594(1980). Nothing in the recordshows an abuse of that descretion.

Affirmed.


text:
    Billy Bob LOYD v. Raymond KEATHLEY, Jr.
    84-152
    682 S.W.2d 739
    Supreme Court of Arkansas
    Opinion delivered January 21, 1985

      McHenry ir Skipper, by: Robert McHenry, for appellant.

      Callis L. Childs, for appellee.
   George Rose Smith, Justice.

This is an election contest. The results of the 1983 election for school director in the Mt. Vernon School District were certified as 175 votes for Loyd, 169 for Keathley, and 31 for Brady. Keathley filed this contest. After an extended hearing the circuit court excluded 14 votes for Loyd because the voters did not sign the applications for the absentee ballots, 8 votes for Loyd because the voters were not residents of the district, and 1 vote for Loyd for a reason not now important. After the exclusion of a total of 23 votes for Loyd, the circuit judge declared Keathley the winner by a vote of 169 to 152. The judgment placed him in office. Our jurisdiction of the appeal is under Rule 29(l)(g). Five points for reversal are argued.

First, the 14 absentee votes. In each instance the county clerk permitted a person other than the voter to pick up the absentee ballot and sign the application for it. Amendment 51, however, sought to minimize fraud in absentee voting by requiring in Section 6 that the voter sign the affidavit of registration and in Section 13 that the voter’s signature on an absentee application be determined by comparison to be identical with his signature on the affidavit. That constitutional safeguard is undoubtedly important. Martin v. Hefley, 259 Ark. 484, 533 S.W.2d 521 (1976). Since the procedure followed in this election would have nullified the constitutional safeguard, the trial court was right in excluding the 14 absentee votes.

Second, the eight votes by nonresidents. The appellant concedes that the trial court was right as to five of these. When those are added to the invalid absentee votes, and the resulting total of 19 is subtracted from appellant’s certified vote of 175, leaving him with only 156, the other four disputed votes need not be considered, for they could not change the result.

Third, it is argued that the county clerk and the election commissioners should have been joined, as necessary parties, within 20 days after the election. The appellant cites no authority on this exact point, only general statements such as the language of Civil Procedure Rule 19 (a). We perceive no reason for joining the clerk and commissioners, for complete relief can be accorded in their absence. See Rule 19 (a), supra. Furthermore, the appellant has demonstrated no prejudice suffered by him as a result of their omission as parties defendant.

Fourth, it is insisted that the trial court should not have sustained the plaintiff’s motion asking that, because the defendant had not pleaded, within the 20 days allowed for his answer, any irregularities nullifying specific votes for the plaintiff, he not be allowed to introduce proof of such irregularities. When the motion was granted, defense counsel stated he had the names of several people who would have testified, but he did not give further details. A definite proffer is essential for appellate review. “[Tjhere must be a proffer of the evidence that is improperly excluded for us to find error.” Parker v. State, 268 Ark. 441, 597 S.W. 2d 586 (1980). Otherwise we might order a new trial that proves to be useless because the appellant cannot in fact produce admissible proof to support his contention.

Fifth, the trial court’s judgment declared the appellee to be the winner of the election and placed him in office. The appellate makes the novel contention that under Ark. Stat. Ann. § 3-1007 (Repl. 1976) the court’s power to enter judgment was limited to ousting Loyd, the apparent winner, from the office of school director, leaving a vacancy to be filled as provided by law. Under the school law the vacancy would be filled by the other directors. Ark. Stat. Ann. § 80-504 (Repl. 1980).

We cannot sustain the appellant’s contention, and not merely because it proposes an innovation contrary to our traditional practice of putting the actual winner in office. Bradley v. Jones, 227 Ark. 574, 300 S.W.2d 1 (1957); Purdy v. Glover, 199 Ark. 63, 132 S.W.2d 821 (1939); Dodd v. Gower, 188 Ark. 958, 68 S.W.2d 463 (1934). The proposed innovation would also be unwise and unj ust for at least three reasons: (1) The true winner would be deprived of the office for which he had campaigned successfully. (2) The power of the people to put the person of their choice into office would be nullified for no reason. (3) There would be no real incentive for a defeated candidate to undertake a costly election contest even though his proof was overwhelming, for his victory would be hollow.

We think it clear that the appellant misinterprets the legislative intent underlying the language of the statutes. Act 465 of 1969 was a comprehensive election code superseding many existing laws. Article 10 of that code consists of seven sections that are pertinent to this case. Sections 1 to 7; Ark. Stat. Ann. §§ 3-1001 to 3-1007. The appellant is relying solely on Section 3-1007. That view is too narrow.

This case is a typical election contest between two candidates qualified to hold he office. The only issue is which one received more valid votes. Such a contest is governed solely by the first four sections of Article 10. Section 3-1001 fixes the venue, specifies the court in which the contest is to be filed, and limits the time for filing the pleadings. The next two sections give extraordinary precedence to such cases and provide for special judges, Section 3-1004 dispenses with the need for a jury, empowers the circuit judge to enter judgment enforcing the proper certification of the result, and directs the supreme court to advance the hearing of any appeal. Those four sections contain all the details needed to enable the courts to handle cases such as this one, a simple election contest.

By con tras t, the next three sections of Article 10 apply to a.different situation — that in which an ineligible candidate is obstensibly elected. Section 3-1005 permits any ten reputable citizens to file a complaint alleging the casting of illegal or fraudulant votes, the making of fraudulent returns or certifications, or violations of the Corrupt Practice Article. A grand jury is to be called at once. Indictments must be speedily tried. By Section 3-1006 if the successful candidate in a primary is found guilty of violations he is deprived of the nomination. Finally, Section 3-1007 provides if the criminal proceedings are not finally determined until after the primary or general election, at which the miscreant has apparently emerged as the winner, the judgment is to operate as a forfeiture of his nomination or an ouster from office, as the case may be. That situation is not presented by the case at bar.

The appellant is mistaken in arguing that two cases decided under an earlier statute apply to this case. Robinson v. Knowlton, 183 Ark. 1127, 40 S.W. 2d 450 (1931); Cain v. CarlLee, 169 Ark. 887, 277 S.W. 551 (1925). In those cases there was a contest of a primary election, but the contest was not finally decided until the party nominee had also won the general election. We merely pointed out that if the contestant had won the contest, the winner of the general election would have been ousted as not having been the rightful party nominee, but the constestant, not having been a candidate in the general election, would not be entitled to the office. Again, that situation is not presented by the case at bar.

Affirmed, the mandate to issue immediately.


author: Darrell hickman, Justice.

text:
    Gregory C. SPARROW v. STATE of Arkansas
    CR 84-160
    683 S.W.2d 218
    Supreme Court of Arkansas
    Opinion delivered January 21, 1985

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

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Darrell hickman, Justice.

This is another in a series of cases challenging the Omnibus DWI Act. Ark. Stat. Ann. §§ 75-1031.1, 75-1045, 75-2501 — 75-2514 (Supp. 1983). Gregory C. Sparrow, the appellant, was found guilty of speeding and driving with a blood alcohol content exceeding 0.10%. According to the chemical test, he had a blood alcohol content of 0.17%, and he admitted to having at least three drinks prior to driving. He appealed his conviction to the Washington County Circuit Court and waived a j ury. He was found guilty, fined $300, plus costs, sentenced to 24 hours continuous incarceration in the city jail and his license was suspended for 90 days.

On appeal he raises questions which, with minor exceptions, have been answered in previous cases. He argues that the DWI law violates the separation of powers provision in the Arkansas and United States Constitutions in that it takes away from the prosecuting attorney and the court the right to reduce a charge and accept plea bargains and places that power within the hands of the policeman, who files the charge. Appellant cites no authority for these propositions. This part of the law is not unconstitutional. It is well settled that it is for the legislative branch of a state or federal government to determine the kind of conduct that constitutes a crime and the nature and extent of the punishment which may be imposed. Carter v. State, 255 Ark. 225, 500 S.W.2d 368 (1973); Thom v. State, 248 Ark. 180, 450 S.W.2d 550 (1970); C. E. Torcia, Wharton’s Criminal Law § 10 (1978). See 21 Am. Jur. 2d Criminal Law § 589 (1981). In fact, there is no authority for Sparrow’s contentions that penalties and their imposition are for the courts to decide.

Sparrow cites no authority for his argument that he is deprived of the right to plea bargain, nor does he even maintain that it is his right. In North Carolina v. Alford, 400 U.S. 25 (1970), the United States Supreme Court said: “The States in their wisdom . . . may prohibit the practice of accepting pleas to lesser included offenses under any circumstances.” Plea bargaining is merely a tool to aid in the administration of justice. Furthermore, statutes are valid which provide that an accused may not plead guilty. 22 C.J.S. Criminal Law 422 (1).

Sparrow also argues that he should have been taken before a judicial officer for a probable cause determination since he was arrested without a warrant. ARCP Rule 8.1 requires that one arrested shall be taken before a judicial officer without unnecessary delay. Here, Sparrow was detained approximately six and one-half hours. We find no violation of Rule 8.1. See Brown v. State, 276 Ark. 20, 631 S.W.2d 829 (1982).

The other arguments that Sparrow raises on appeal have been answered in other cases. Ark. Stat. Ann. § 75-2503 (b) (Supp. 1983) is not void for vagueness. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). Sparrow argues that the statute requires that he be informed that he may take another breath chemical test in addition to the one he was given. The written warning that Sparrow signed stated that he had the right to request a test of a different type. However, it also stated “I will assist you in obtaining another test of your choice . . .” Ark. Stat. Ann. § 75-1045 (c) (3) only requires that an individual be advised that he can have tests “in addition to any test administered at the direction of a law enforcement officer.” The facts in this case are virtually identical to those in Spicer v. City of Fayetteville, 284 Ark. 315, 681 S.W.2d 369 (1984), and, again, we find no error.

Sparrow also contends that he was not observed for 20 minutes by the operator of the machine as required by the department of health standards. Substantial compliance with health department regulations is all that is required. Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975). As in Spicer v. State, supra, the appellant was collectively observed by officers for 30 minutes prior to the administering of the test.

Affirmed.