author: John I. Purtle, Justice. Darrell Hickman, Justice,

text:
    C.J. HORNER COMPANY and INDIANA LUMBERMEN’S MUTUAL INSURANCE CO. v. Judith Tarvin STRINGFELLOW and William Bryant STRINGFELLOW, Widow and Dependent Son of William B. STRINGFELLOW, Deceased
    85-73
    691 S.W.2d 861
    Supreme Court of Arkansas
    Opinion delivered July 1, 1985

      Friday, Eldredge & Clark, by: Elizabeth J. Robben and Kevin A. Crass, for appellant.

      William F. Magee, for appellee.
   John I. Purtle, Justice.

We accepted this case on certiorari from the Court of Appeals which had affirmed the opinion of the Workers’ Compensation Commission. We agree with the Court of Appeals that reasonable minds could conclude that the decedent’s work was a precipitating factor which brought about the acute myocardial infarction which occurred while decedent was performing his employment duties.

The decedent was seated at his desk on September 14,1982, performing his normal duties for his employer when he suffered a fatal heart attack. He simply slumped over on his desk and died without uttering a word. He was taken immediately to the hospital where his doctor pronounced him dead. He had been employed about three years by the appellant employer.

The widow told the doctor that decedent had been working about 61 hours a week at the time but a few months earlier, during the Oaklawn racing season, he had worked about 70 hours a week. Decedent’s job was to take orders and oversee deliveries. Much of his work was done by telephone and none of it involved strenuous physical activity.

In February, 1983, the doctor wrote the widow a letter which stated in part:

I feel, without reservation, that the long hours, the job pressures of Mr. Stringfellow’s employment were contributing factors to his heart attack, and could well have precipitated this event.

The decedent had made no prior complaints about his health but he slept a lot and seemed awfully tired. He did not feel like doing anything but resting when he came home from work. It had been more than two years since he had been examined by a doctor. He smoked about two packs of cigarettes per day and was a member of a musical combo that sometimes played at night clubs and private parties in and around Hot Springs. On the day of his death neither his family nor fellow employees noticed anything unusual about his appearance.

Decedent’s family doctor testified by deposition that he had been the family physician since 1975 and had never treated decedent for any cardiac disease. He did not suspect Stringfellow was suffering from heart problems. Based upon his examination of the body and the report of the ambulance attendants he diagnosed the cause of death as acute myocardial infarction. It was the doctor’s understanding that decedent was sitting at his desk doing his job when he simply bent forward, placed his head down on his desk, and died. The doctor felt that the decedent was working under stress. One question and answer was on the matter of stress on decedent’s job and is as follows:

Q. You do not know with any degree of medical certainty that they were contributing factors?
A. As well as any physician can be medically certain that stress produces conditions which are conducive to having a heart attack. If a man was laboring under stress, then this would be a contributing factor, and I have to stand with my statement — that I feel this could very well be a contributing factor to this gentleman’s death.

It is fair to say that certain statements of the doctor were favorable to either side but on the whole his testimony was that the stress of decedent’s job was a contributing factor to his death.

Heart cases are among the most difficult in Workers’ Compensation law. This is so because heart attacks often come in unusual situations and even while one is asleep. Often there is no apparent reason for heart attacks. We stated the rule in such cases in Latimer v. Sevier County Farmers’ Cooperative, Inc., 233 Ark. 762, 346 S.W.2d 673 (1961) as follows:

[A]n accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury. In short, an injury is accidental when either the cause or the result is unexpected or accidental, although the work being done is usual or ordinary.

We reached the same conclusion in another heart case reported as Hoerner Waldorf Corp. v. Alford, 255 Ark. 431, 500 S.W.2d 758 (1973). In the case of Asphalt Materials Co. v. Coleman, 243 Ark. 646, 420 S.W.2d 921 (1967), we reviewed the question of causal connection between work and heart attack and stated:

In resolving the issue before us, we are mindful of those cardinal principles so well established as to need no citation of authority:
(1) the compensation act is to be construed liberally in favor of the workman;
(2) the burden is on the claimant to show causal connection between his heart attack and his employment; and
(3) we give the evidence its strongest probative force in favor of the commission’s findings because those conclusions carry the weight of a jury verdict.

There was no evidence that the myocardial infarction was caused solely by the decedent’s employment but there was substantial evidence that the stress of the employment duties contributed to the infarction. Under the facts of this case we are bound by our decisions in Hoerner, Latimer, Asphalt Materials Co. and many others not cited herein. If the employment precipitates or contributes to an attack there is a causal relation between the injury and the employment. When the Workers’ Compensation Commission finds such causation and its decision is supported by substantial evidence, as it is here, we will not reverse such a decision.

Affirmed.

Holt, C.J., and Hickman, J., dissent.

George Rose Smith, J., not participating.

Darrell Hickman, Justice,

dissenting. To me this case shows we have a court-created life insurance policy for workers who die of a heart attack on the job — a recovery not intended by the workers’ compensation law.

This case is an example of just how far we have come. In some of the earlier “heart attack cases,” we required that there have been an extraordinary occurrence or exertion to support an award. Baker v. Slaughter, 220 Ark. 325, 248 S.W.2d 106 (1952); Duke v. Pekin Wood Products Co., 223 Ark. 182, 264 S.W.2d 834(1954). In other cases we would affirm awards by the commission where a heart attack followed only ordinary exertion. Batesville White Lime v. Bell, 212 Ark. 23, 205 S.W.2d 31 (1947); Harding Glass Co. v. Albertson, 208 Ark. 866, 187 S.W.2d 961 (1945). In Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S.W.2d 436 (1956), we joined the majority of states and abandoned the unusual and extraordinary stress requirement to adopt the rule that “an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary.”

Such a rule and its implications has its defendants and critics. 1B Larson’s Workmen’s Compensation Law § 38.00 (1982); H. Woods, The Heart Attack Case in Workmen’s Compensation, 16 Ark. L. Rev. 214 (1961); R. Wright, Defendant’s View of Workmen’s Compensation Heart Cases, 16 Ark. L. Rev. 234 (1961); W. Putman, The Relationship of Effort or Stress to Coronary Heart Disease, 17 Ark. L. Rev. 39 (1963).

In this case we have a 52 year old man who smoked two packs of cigarettes daily, participated in a band which played nights, and died at his desk of a heart attack. The cause? Certainly, there is no substantial evidence that his job caused his death. The majority and a majority of the court of appeals rely on a note from Stringfellow’s doctor to Mrs. Stringfellow which concludes that the long hours and job pressures were “contributing factors” to the heart attack. Then on cross-examination the doctor admitted that he had no personal knowledge that Mr. Stringfellow was under any unusual job-related stress just prior to his death and that he did not believe that the job caused the death, only that it may have been a contributory factor.

Such evidence is not that which we ordinarily find to be substantial. In Pickens-Bond Const. Co. et al v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979), a worker’s compensation case, we reiterated the definition of substantial evidence:

Substantial evidence has been defined as ‘evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture.’ Ford on Evidence, Vol. 4, § 549, page 2760. Substantial evidence has also been defined as ‘evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences.’

In relaxing our standard of review, we are sending a message that in heart attack cases, workers’ compensation will become a form of life insurance rather than compensation for job related accidents or injuries. That will probably lead to an amendment of the workers’ compensation law which could work to the detriment of the workers.

I would deny the claim as being unsupported by any substantial evidence. Furthermore, I would join those who call for a review of the legal standard of causation in such cases. See A. Larson, The “Heart Cases” in Workmen’s Compensation: An Analysis and Suggested Solution, 65 Mich. L. Rev. 441 (1967).

Holt, C.J., joins in the dissent.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    Louis DUELMER v. Ray HAND
    85-52
    692 S.W.2d 601
    Supreme Court of Arkansas
    Opinion delivered July 1, 1985

      Barron, Coleman & Barket, P.A., by: Thomas L. Barron, for appellant.

      Randell J. Wright and Henry C. Morris, for appellee.
   John I. Purtle, Justice.

Among items not abstracted, which causes us to dismiss this appeal under Ark. Sup. Ct. R. 9 (d) and (e), is the order, judgment or decree appealed from. The lower court’s decision is the heart of any appeal. The abstract does not reveal that there has been any final disposition of the merits of this case. A reading of the Rule 9 opinion written for the court by Justice Byrd and reported as Bank of Ozark v. Isaacs, 263 Ark. 113, 563 S.W.2d 707 (1978) is most instructive. In addition to our own rules last published in the reports at 279 Ark. 497 (1983) and also published in volume 3 A of the Arkansas Statutes, several publishing firms offer updated rules for sale to the public.

Appeal dismissed.

George Rose Smith, J., not participating.


text:
    Johnny G. RHOADES and Betty G. RHOADES v. Jack SIMS
    85-31
    692 S.W.2d 750
    Supreme Court of Arkansas
    Opinion delivered July 1, 1985

      Lesly W. Mattingly, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   John I. Purtle, Justice.

Appellants filed a malpractice suit against their former lawyer. A motion for summary judgment was granted in favor of the lawyer. Appellants argue here that the trial court erred in applying the three year statute of limitations to the case. We hold that the trial court was correct.

Appellee represented appellants in a chapter XIII proceeding and also filed a response for them in a 1977 suit by Teague Home Builders, Inc. to foreclose on a mobile home. The appellant husband became disabled for a time and was unable to maintain his chapter XIII obligations. The Bankruptcy Court dismissed the proceeding. On January 9,1979, appellee sent the appellants a letter in which he enclosed a quitclaim deed for appellants to sign and return. Being dissatisfied with the recommendation the appellants sought the advice of other counsel who agreed with them. However, no action was taken at the time. A motion by Teague for summary judgment was filed on February 28, 1979. Appellee received a copy of the motion and a notice that a hearing on the motion would be held on March 13, 1979. He failed to respond or notify his clients. After the hearing the motion for summary judgment was granted.

Appellants were notified that the motion had been granted. New counsel filed a motion to set the judgment aside on April 28, 1979. A hearing was held on June 26, 1979, and the court announced that the judgment would be set aside but failed to enter a formal order setting it aside. The court requested the parties to determine the amount owed by appellants to Teague and to put the appellants back into possession of the property. Teague’s attorney failed to notify him and he sold the property to third parties.

After several hearings a trial was held on the merits of the case in late 1980, but judgment was not entered until February 14, 1981. After obtaining execution on the judgment the appellants learned that the Teague company did not own the property but it had instead been owned by Teague and his wife as individuals.

The appellants then filed a third party complaint which was treated by the trial court as a motion for a new trial. A new trial was granted based upon newly discovered evidence and fraud. A new trial was held on August 6; 1982, and judgment again was entered in favor of the appellants in the amount of $5,941.63. This judgment was appealed to the Court of Appeals which rendered an opinion in July of 1983, setting aside the judgment because the trial court failed to formally enter a judgment setting aside the original summary judgment against the appellants. The opinion was not designated for publication and rehearing was denied on August 24, 1983.

Appellee did not represent the appellants in any manner after May 16, 1979. However, the suit by appellants was not finally concluded until August, 1983. This malpractice suit against the attorney was filed on February 10, 1984.

The question presented to this court is whether the three year statute of limitations applying to malpractice suits against attorneys was tolled by the continuation of the litigation which was the subject from which this suit arose. The specific act of negligence alleged was the failure to respond to the motion for a summary judgment or to notify the appellants that a hearing on the motion would be held on March 13, 1979.

The trial court granted the motion for summary judgment in favor of Teague. Notice of the judgment was received by the appellants, and their new attorney filed a motion on April 28, 1979, to set aside the judgment. This motion was heard on June 2, 1979, and the court held the motion should be granted. It is the precise action by the court on this motion that presents the problem here considered. The fact that the action taken by the court is not included in the record makes the case more difficult. We have only the affidavits filed by the litigants in support of and in opposition to a motion for summary judgment in the malpractice suit against the attorney. All parties agree that the court stated in open court that the original summary judgment against the appellants should be set aside. Appellants’ joint affidavit states: “The Chancellor advised our attorney and Mike Wilson, attorney for Teague Home Builders, Inc., that he would set the summary judgment aside because Mr. Sims had filed no response or notified us of the scheduled hearing.” The affidavit goes on to state that the chancellor did not want to formally set the judgment aside and therefore instructed the parties to get together and determine the amount appellants owed Teague and reinstate the parties to their original positions. Subsequently Teague sold the property to third parties. The Teagues’ attorney had failed to notify them that their default judgment had been ordered set aside by the trial court. Upon learning of the sale of the property the trial court set the case for trial on its merits. When it was tried the appellants obtained a judgment against Teague Home Builders, Inc. in the amount of $5,941.63.

When appellants attempted execution on the judgment, which was not appealed, they learned the property they were purchasing was, at the time of purchase, in the names of Jerald B. Teague and Judy A. Teague individually. The trial court then granted a new trial and judgment was entered in favor of the appellants. The Court of Appeals reversed the judgment because there had been no formal order setting aside the original summary judgment in favor of Teague.

Unquestionably the attorney was negligent in failing to contact his clients and in failing to respond to the motion for summary judgment. On motion of substituted counsel the judgment was set aside. It was stipulated that Sims did not represent appellants in any manner after May 16, 1979. Unless the continuing legal battle over the property tolled the statute the three year rule applies. Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984); Ark. Stat. Ann. § 37-206 (Repl. 1962). As far back as White v. Reagan, 32 Ark. 281 (1877), this court held that the misconduct or negligence of an attorney triggers the statute of limitations.

The trial court obviously did not wish to expose the attorney to a malpractice claim and for that reason announced that the judgment would be set aside but failed to enter an order to that effect. He conducted the case thereafter in exactly the same manner as if the judgment had been formally set aside. Appellant’s new attorney was present when the chancellor announced his decision to set aside the judgment. Had he or the appellants desired they could have insisted on a formal order but they did not. Whatever action was taken after March 13, 1979, was not taken by Sims. Likewise, any action not taken which should have been taken was not the fault of Sims. It had been more than four years since the attorney had any active participation in the case when the malpractice suit was filed against him.

After the summary judgment of March 13,1979, there was no misrepresentation or concealment of any conduct by Sims. There was no such action at any time by him.

Since the appellants knew all the facts and circumstances of Sims’ activities in this case and had in fact contacted other counsel prior to the original summary judgment they cannot rely upon the delay of the suit to toll the statute. This is especially true in view of the fact that the trial court and all the parties treated the judgment as having been set aside. We hold that the three year statute applies and the judgment is affirmed.

Affirmed.

George Rose Smith, J., not participating.


author: Robert H. Dudley, Justice. John I. Purtle, Justice, dissenting.

text:
    Billy Don MORRISON, Sr. v. Beverly Rose MORRISON
    85-35
    692 S.W.2d 601
    Supreme Court of Arkansas
    Opinion delivered July 1, 1985

      Tucker & Thrailkill, by: Danny Thrailkill, for appellant.

      Wilson, Engstrom & Corum, for appellee.
   Robert H. Dudley, Justice.

The issue on appeal is whether a spouse’s disability retirement benefits are marital property under Ark. Stat. Ann. § 34-1214 (Supp. 1983). We affirm the trial court and hold that disability retirement benefits are marital property. Jurisdiction is in this Court to interpret the statute at issue. Rule 29(l)(c).

During the marriage, appellant, Billy Don Morrison, Sr., worked at various jobs until November, 1965, when he was employed by the Los Angeles Fire Department. In 1976, a cyst was discovered on his knee. The cyst was surgically removed, but a disabling infection developed. In December, 1977, the retirement board found that appellant had suffered a 78% permanent physical impairment to his knee and that he must retire. He was awarded disability retirement benefits of $1,165.00 per month. Those monthly benefits are the subject of this appeal. During his period of employment with the Los Angeles Fire Department appellant contributed 11% of his salary, or $21,000.00 to the retirement fund.

The appellee, Beverly Rose Morrison, worked at various jobs intermittently during the marriage, but was unemployed at the time this case was heard.

In Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), a longevity retirement benefit case, we stated:

In holding that Dr. Day’s interest in the pension plan is properly found to be marital property in this case, we are not attempting to lay down inflexible rules for the future. To the contrary, Section 34-1214 allows leeway for the exercise of the chancellor’s best judgment, for it provides that all marital property shall be divided equally “unless the court finds such a division to be inequitable.” What we do hold is simply that earnings or other property acquired by each spouse must be treated as marital property, unless falling within one of the statutory exceptions, and neither one can deprive the other of any interest in such property by putting it temporarily beyond his or her own control, as by the purchase of annuities, participation in a retirement plan, or other device for postponing full enjoyment of the property.

Id. at 268, 663 S.W.2d at 722.

Appellant concedes that Day is the general rule for longevity retirement benefits but argues that disability benefits are compensation for impairment to one’s body and are not in the nature of an asset acquired during the marital relationship. The fallacy in the argument is that the benefits come from an annuity purchased during the marriage with the income of one spouse. That annuity, which became payable upon disability, is the marital property. There is no meaningful distinction between an annuity payable upon disability and one payable upon longevity.

Appellant next argues that Day is distinguishable because Dr. Day’s annuity was based solely upon his contributions to the fund, while in this case the pension fund regulations required that appellant’s annuity be paid first out of his payments into the fund and then out of a general fund. We do not find the distinction meaningful. The benefits in the case at bar are paid out of one’s own contributions plus the contributions of all others who are not disabled. That part paid out of appellant’s contributions is precisely the same as in Day. That part paid out of the general fund is, in effect, paid by a mutual assessment program. We recognize that the California Courts have adopted an analysis of disability benefits by which the benefits are divisible as marital property only to the extent that they match the benefits the employee would have received if his retirement had been based on longevity. The overplus is the separate property of the disabled spouse. See Marriage of Jones, 119 Cal.Rptr. 108, 531 P.2d 531 (1975); Marriage of Stenquist, 148 Cal.Rptr. 9, 582 P.2d 96 (1978); Marriage of Webb, 94 Cal.App.3d 335, 156 Cal.Rptr. 334 (1979); Marriage of Mason, 93 Cal.App.3d 215, 155 Cal.Rptr. 350 (1979); and Marriage of Milhan, 166 Cal.Rptr. 533, 613 P.2d 812 (1980).

Illinois has a statute almost identical to the Arkansas statute at issue. Compare Illinois Marriage and Dissolution Act, Ill. Rev. Stat. Ch. 40, Sec. 503(a) (1980) and Ark. Stat. Ann. § 34-1214 (Supp. 1983). In construing the Illinois statute in the same manner we construe the Arkansas statute, the Appellate Court of Illinois, Third Division, in In Re Marriage of Smith, 84 Ill.App.3d 446, 405 N.E.2d 884 (1982) stated:

... As the subject disability pension does not expressly fall into an excepted category, it constitutes marital property if it can be categorized as property acquired during the marriage . . .

Further, in rejecting the concept of overplus being the separate property of the disabled spouse the Illinois court wrote:

... We recognize the analytical contribution of those courts distinguishing disability benefits on the basis of some form of the compensatory element but do not believe the framework of statutory law in Illinois offers us the flexibility of that approach. Section 503(a) of the Illinois Marriage and Dissolution Act (hereinafter the Act) mandates the characterization of all non-excepted property as marital property, and as previously mentioned, longevity pensions constitute marital property in Illinois. The disability pension at bar differs from such longevity pension only in its compensatory element, its mode of inception and possibly its duration. Given the classificatory directive of section 503(a) we hold the disability benefits at bar to similarly constitute marital property.

Likewise, the Arkansas statute does not offer the flexibility of the California approach since our statute simply mandates that all non-exempted property is marital property.

Additionally, appellant contends that Day should be distinguished because Dr. Day’s contributions to the annuity were voluntary while appellant’s contributions were mandatory. Under our statute, marital property is marital property whether it is voluntarily or involuntarily acquired.

Appellant next argues that a holding that the disability retirement benefits are marital property is inequitable because each spouse will have one-half of.the benefits and only one of them is disabled. Under our statute, the chancellor had the discretion to make a division other than equal if an equal division was unfair. Here the chancellor first pointed out that had appellant’s medical impairment been more severe, it would have been unlikely that the court would have awarded appellee one-half of the disability pension. The chancellor then considered the fact that appellant was a self-employed farmer and appellee was unemployed without other income and divided the pension equally. We cannot say the decision was clearly erroneous.

Affirmed.

Purtle, J., dissents.

George Rose Smith, J., not participating.

John I. Purtle, Justice, dissenting.

I strongly disagree with the majority opinion in treating disability benefits as marital property. In the first place they are not acquired insofar as future benefits are concerned. It is our fault that the chancellor ruled as he did although we have not previously so held. In Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984) we did hold that earned retirement benefits were marital property. However, in Day we were able to place an exact dollar and cents valuation on the retirement benefits awarded to the spouse. Contributions to the retirement plan in Day had been made from marital funds.

Disability benefits are as personal as property can be. They represent payment to the disabled person for having part of his or her physical or mental ability taken away. To show the unjust and inequitable results, suppose a 25 year-old spouse receives injuries resulting in that person becoming a quadriplegic and the healthy spouse obtains a divorce and is awarded half the disability benefits the injured spouse is receiving. Possibly half the benefits will not be enough to keep the invalid spouse alive. In such a case the state would be left with the burden of maintaining the injured party. Suppose the healthy spouse then remarries and also continues gainful employment, earning even more than the injured party receives. The healthy ex-spouse receives all his earnings plus half the former spouse’s benefits and possibly the new spouse may earn even more than either of the others.

Furthermore if the remarried spouse dies then his heirs are owners of half the disability payments due the injured party. If we simply acknowledged these benefits have not been acquired there is no problem. The common sense and equitable approach is to treat disability benefits as income when received. Such benefits should be considered when making awards for support and alimony.

Even before this court has decided the issue some trial courts are treating such benefits as property on hand. It is true the statute does not require the property to be divided equally and we have pointed out that provision in our opinions. We should now correct any erroneous impressions our opinions have created. Trial courts should not mechanically divide disability benefits between the parties as if they were certificates of deposit.

If we are going to award half of the injured spouse’s disability benefits to the other we may as well go ahead and award half the social security benefits which are apt to be received during the lifetime and add half the burial insurance too.

What difference does it make in taking the income from disability benefits from a person if the state is a community property state or one that is in all practicality one? There are many decisions from community property states which do not treat disability benefits as marital property. See Bugh v. Bugh, 125 Ariz. 190, 608 P.2d 329 (Ariz. App. 1980) and Hicks v. Hicks, 546 S.W.2d 71 (Tex. Civ. App. 1976). I see no reason why Lowrey v. Lowrey, 260 Ark. 128, 538 S.W.2d 36 (1976) is not still good law. In Lowrey we held that unliquidated personal injury benefits were not properly divided in divorce actions.

We stated in Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983), and Day v. Day, supra, that benefits or claims not yet received were not exempt from being classified as marital property if acquisition were delayed with the intent to deny the other spouse his just benefits. In the present case the non-injured spouse will not contribute in any manner in obtaining future disability benefits. It is neither just nor equitable to award the healthy spouse, who is able and qualified to work, half the payments the injured party is receiving for disability and pain and suffering.

If there is ever justification for judge-made law this is not the case for it. I would reverse and remand with directions to consider such benefits in awarding alimony or support.


author: Steele Hays, Justice.

text:
    Esther Hill CHAPIN, Individually and as Executrix of the Estate of Samuel C. Chapin, Deceased v. J. C. STUCKEY, Successor Trustee under the Will of Samuel C. Chapin, Jane Lee Chapin RIDDLE, Samuel Caryl CHAPIN, Judd Valmore CHAPIN, Jr. and Ernestine CHAPIN
    85-15
    692 S.W.2d 609
    Supreme Court of Arkansas
    Opinion delivered July 1, 1985

      Fendler, Gibson & Bearden, by: Oscar Fendler and Michael L. Gibson, for appellant.

      E. L. Schieffler, Noyl Houston, Keith Blackman, and Larry Jennings, for appellees.
   Steele Hays, Justice.

This appeal concerns the appointment of a receiver to manage Judd Hill Plantation, 4,761 acres of farm land in Poinsett County, Arkansas.

In 1933 Judd Hill gave the plantation bearing his name to his daughter, Esther Hill Chapin and to her husband, Samuel C. Chapin. Thereafter, the Chapins farmed the lands until 1976 when Samuel Chapin died, survived by Esther and three children of a deceased son. The will of Samuel Chapin purported to leave one-half of his estate to Esther and the other half in trust for the support, education and maintenance of his grandchildren and their mother. The trustee was directed to retain the farm intact and operate it in conjunction with Esther Hill Chapin until the trust vested on the youngest grandchild reaching age thirty.

Mrs. Chapin promptly petitioned for her appointment as executrix of the will, which was ordered, and later for an order of partial distribution of one-fourth of the plantation to the trustee, Mercantile Bank of Jonesboro. Her petition asked that upon completion of farming operations for the current year, 1980, the remaining distributive share of the plantation under the will be paid to the trustee, which included one-fourth of the farming equipment and machinery. The partial distribution was ordered and in September, 1980, Mrs. Chapin gave an executrix’s deed to the trustee conveying an undivided one-fourth of the farm lands to the trustee.

In June of 1981, Mercantile Bank, alleging that it had been unsuccessful in funding the trust by rental arrangement for the one-fourth interest in the plantation, asked the Poinsett Chancery Court to relieve it as trustee, its petition noting there were no assets available for distribution and that the beneficiaries of the trust were demanding distribution. The petition was granted and J.C. Stuckey was named successor trustee.

In May, 1984, the successor trustee filed a petition in the chancery suit naming Esther Hill Chapin as defendant, claiming ownership by the trust of one-fourth of the lands and farm machinery and equipment, and alleging irreparable injury to the trust because of waste and mismanagement of the farm by Mrs. Chapin. The trustee alleged that he was unable to discharge his fiduciary obligations because of the defendant’s refusal to permit him to come upon the lands. Other allegations included specific instances of loss to the trust because of neglect and mismanagement, refusal to account, to permit the trustee to examine records, or to discuss farming operations with the trustee. The trustee asked that a receiver be appointed to take charge of the lands, equipment, bank account and records. The appointment of a receiver was supported by the Chapin grandchildren, who moved to intervene.

After a hearing the Chancellor found that Esther Hill Chapin owned an undivided three-fourths of the plantation, with the trust owning an undivided one-fourth of the land and one-fourth of the personal property, subject to the termination of the probate proceedings. The Chancellor also found that Mrs. Chapin was not capable of prudent management of the plantation, that continued efforts by her would result in material and irreparable injury to the trust, and that a receiver should be appointed over the lands and farming equipment. James O. Campbell was appointed.

I

Esther Hill Chapin has appealed from the decree, urging the Chancery Court was without jurisdiction to entertain an action brought solely for the appointment of a receiver. She argues the appointment of a receiver was the only relief sought by the successor trustee and beneficiaries of the trust, and was not ancillary to any other proceeding then pending against the estate or against Mrs. Chapin. In that connection, we need not decide whether the proceeding involving the Chapin estate still pending in Poinsett Probate Court, or the proceeding pending in the Poinsett Chancery Court over the affairs of the trust, from which this appeal springs, are sufficient in themselves to meet that requirement, because we disagree appellant’s contention that the Chancellor lacked jurisdiction to appoint a receiver. We believe the decision was within his discretion under the law and that that discretion was not abused.

Appellant’s brief cites numerous cases and articles stating the rule to be that the appointment of a receiver is allowable only in connection with an action pending for some other purpose, to which the appointment of a receiver will be an aid. 65 Am.Jur.2d, Receivers, § 25, p. 878. We take no exception to the basic principle that receivership is not an end unto itself, but is ancillary to some proceeding over which the court has jurisdiction. We believe it is a broad statement of the law which is generally true, but is neither categorically nor invariably so. It is not, as appellant insists, a characteristic to be rigidly applied. Appellant contends the principle rises to the level of a jurisdictional requirement, to the end that unless the objective of the litigation which the receivership accompanies can be sharply distinguished from the receivership itself, the power of the court to appoint a receiver is so lacking that jurisdiction itself fails. We do not find the rule to be so absolute.

Examples are readily found. In Gross v. Missouri & Arkansas Railway Co., 74 F. Supp. 242 (W.D. Ark. 1947), cited by appellant, Judge John E. Miller, while hinting that grounds for the appointment of a receiver were lacking, justified the appointment because the litigants were in agreement that a receiver would be beneficial. The opinion notes the appointment of receivers comes within the extraordinary powers of a court of equity, Judge Miller’s only concern being whether the appointment constituted an abuse of discretion. Since the parties were not objecting, he declined to inquire into that issue on his own. Nothing in the opinion casts any doubt on jurisdiction, which even the consent of the parties cannot create. California v. LaRue, 409 U.S. 109 (1972).

Of course, these parties are sharply divided over the appointment of a receiver, and in that respect this case differs from Gross. But the usefulness of a receiver in the unusual situation presented here was obviously apparent to the Chancellor, and is equally evident to us, as an efficient antidote for the problem, i.e. managing a diverse and complex farming operation which the common owners were unable to accomplish for themselves. It would be difficult to conceive of a more expeditious solution under the law to what can only be seen as a stalemate between Mrs. Chapin and the trustee, to the serious detriment of the beneficiaries.

A broad review of the discussions on the subj ect leads to the conclusion that the appointment of receivers rests within the discretion of courts of equity, to be exercised with restraint and caution, to be sure, and ordinarily only in conjunction with a pending proceeding, and rarely as a means in itself, but whenever unusual circumstances warrant. Among the situations warranting receivers are: when necessary to the best interests of both parties, Heinze v. Butte, 126 F. 1 (9th Cir. 1903), or where waste is occurring, 65 Am.Jur.2d § 35, p. 884, or where a cotenant wrongfully assumes exclusive possession of common property, or mismanages common property so as to cause its loss, or where the preservation of the subject matter of the suit requires it, id. § 57. The authors of Am. Jur.2d state, “There is no doubt of the power of a court of equity to appoint a receiver in a suit between cotenants.” And, “[m]any of the cases imply, or in some other manner give support to the proposition, that the act of one cotenant in wrongfully assuming exclusive possession of the common property may, in a proper action, be in itself sufficient grounds for the appointment of a receiver.” Id, § 57. (Our italics).

An ALR article dealing with the appointment of receivers in disputes between owners of undivided interests states:

In so far as concerns “power,” in the strict sense, the cases leave no doubt that in a suit in equity between cotenants or persons claiming successive interests in real or personal property the court has inherent power to appoint a receiver to preserve, pendente lite, the subject matter of the litigation. Furthermore, trial courts are ordinarily permitted to exercise that power with considerable discretion in determining whether, under particular circumstances, a receivership is reasonably required. The power to appoint a receiver is, of course, a harsh and dangerous one, and should be exercised with great circumspection. Kory v. Less, 180 Ark. 342, 22 S.W.2d 25 (1929). ‘The cases in which receivers ordinarily will be appointed are confined to those in which it can be established to the satisfaction of a court that the appointment of a receiver is necessary to save the property from injury or threatened loss or destruction, or that the claimants in possession are excluding another party from rights which the latter has in the land.’ Saylor v. Hilton, 190 Ky. 200, 226 S.W.2d 1067 (1921). (Out italics).

We believe our own statutes on receivership are consistent with this interpretation, that is, that the power of equity courts to appoint receivers is not as narrowly restricted as appellant insists, that some elasticity is intended. ARCP Rule 66, provides that courts of equity “may appoint receivers for any lawful purpose when such appointment shall be deemed necessary and proper.” The rule supersedes the most recent statute on thesubject, Ark.Stat. Ann. § 36-101 et seq. (Repl. 1962),and the Reporter’s Notes indicate the procedure remains essentially the same under Rule 66 as it did under prior Arkansas law, which prompts Mrs. Chapin to argue that under prior case law such appointments must be ancillary to some other cause of action then existing. As we have said, none of our cases reach that specific holding, although admittedly the dictum of some lend support to the argument. In District No. 21, United Mine Workers of America v. Bourland, 169 Ark. 796, 277 S.W. 546 (1925), while we said the pendency of a suit was an “absolute prerequisite” to the appointment of a receiver, it must be noted that in Bourland we reversed the Chancellor’s appointment of a receiver because the pending suit was wholly beyond equity jurisdiction, it being “nothing more than a tort action for unliquidated damages,” sounding only at law.

Among the statutes which Rule 66 replaces is Ark. Stat. Ann. § 36-112 (Repl. 1962), which employs the same broad wording as the rule:

In an action. . . between partners or others jointly owning or interested in any property or fund, on the application of plaintiff or any party whose right to or interest in the property or fund or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured, the court may appoint a receiver to take charge thereof during the pendency of the action. . . .

This broadly stated provision has existed in our statute law since at least the adoption of the Arkansas Civil Code in July, 1868. We believe the wording of the rule and the statutes which shaped it imply that chancellors have inherent discretion to appoint receivers when they find it necessary to accomplish a proper end.

Mrs. Chapin puts particular reliance on Gordon v. Washington, 295 U.S. 30 (1934), where the Supreme Court reversed the Circuit Court of Appeals, Third Circuit, in affirming the appointment of receivers by a District Court, sitting in equity. The Gordon court emphasized an important difference between its facts and the facts of the case before us:

Even when the bill of complaint states a cause of action in equity, the summary remedy by receivership, with the attendant burdensome expense, should be resorted to only on a plain showing of some threatened loss or injury to the property, which the receivership would avoid. Here, no such showing was made. (At p. 39).

In sharp contrast to the facts in Gordon, the facts here are that not only were the appellees confronted with a threatened loss, there was substantial proof before the Chancellor that the trust was sustaining an actual loss attributable to Mrs. Chapin. We conclude that the situation justified the appointment of a receiver and the Chancellor did not err.

II

Mrs. Chapin’s second point for reversal is the trial court lacked subject matter jurisdiction for the appointment of a receiver, since the appellees failed to establish the requisite jurisdictional facts of an ownership interest in the property.

The argument is that Samuel C. Chapin and Esther Hill Chapin owned Judd Hill Plantation as tenants by the entirety, and not as tenants in common, as Samuel Chapin’s will mistakenly assumed. Thus, when Samuel Chapin died in 1976, Mrs. Chapin acquired all the lands by survivorship.

If there was a mistake, it was honored in the observance over a span of years — from Samuel Chapin’s death until the latter part of 1984, well after the decree appealed from — during which Mrs. Chapin proceeded in accordance with the will and trust, including the conveyance of an undivided one-fourth interest in the farm lands to the trustee, “to be held and managed in accordance with the will of Samuel C. Chapin.”

Whether mistaken or intended, it is not for this court, acting in review and with no record whatever on the point, to decide what the consequences of that long standing “mistake” should be. Were we to attempt it, there would still be the issue of the receivership over the undivided personal property, covering innumerable items of farm machinery and equipment, a sizeable bank account and records, all of which have been unproductive to the trust because of the impasse.

Whatever else may be said, this issue was not raised before the trial court until nearly four months after the decree in the form of motions to reconsider and modify the decree. Beginning with the petition of the Mercantile Bank in 1981, in this same chancery proceeding, the claim of the trustee to be the owner of an undivided one-fourth of the Judd Hill Plantation has not been controverted. The verified petition of the successor trustee for the appointment of a receiver, filed in this case in May 1984, specifically alleges that under the will of Samuel C. Chapin the trust is the owner of an undivided one-fourth of the lands in question. By way of amendment, the trust claimed ownership of an undivided one-fourth interest in the farm equipment, bank accounts and other personal property of the plantation. All of these allegations were expressly admitted by the defendant (appellant).

Appellant maintains that those admissions, made by her prior counsel, were erroneous, and since the appellees were without any ownership in the property the chancery court was without jurisdiction to appoint a receiver.

Appellant cites us to Golden Valley Land and Cattle Co. v. Johnstone, 21 N.D. 101, 128 N.W. 691 (1910); Kansas City v. Markham, 339 Mo. 753, 99 S.W.2d 28, (1936); Silberstein v. H.A. Circus Operating Corporation, 129 S.W. 1085 (C.A. Mo. 1939), and Fleet v. Hooker, 63 P.2d 988 (S.Ct. Okla. 1937), holding that before a receiver will be appointed over property the applicant must show either that he has a clear or apparent right in or to the property. We would not quarrel with those holdings, but it must be said the issue in those cases was presented to the trial court and not for the first time on appeal. Appellant suggests that in Fleet v. Hooker, supra, the defendant admitted all the facts alleged by the petitioner seeking the appointment of a receiver, and even so, the court held the lower court lacked subject matter jurisdiction for the appointment of a receiver where the applicant failed to prove an interest in the property. The cases are distinguishable. In Hooker, while we gather the original defendants (not the parties appealing) may have acquiesced in the appointment of a receiver, that was not true of these petitioners who were appealing and who were not even parties to the original suit. The salient fact is the applicant for a receiver was simply a contract creditor for a money judgment upon unsecured notes, who asserted no legal or equitable claim against any specific property. Noting that the plaintiffs alleged grounds for the appointment of a receiver were “wholly insufficient,” the court in Hooker held the appointment to be void.

Appellant cites us to a number of our own cases, notably Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976), holding that subject matter jurisdiction cannot be waived and may be raised for the first time on appeal. We will not deal with each case, the rule itself is well settled, but it applies where a court is wholly without jurisdiction under all the circumstances. Smith v. Whitmore, 273 Ark. 120, 617 S.W.2d 845 (1981); Price v. Madison County Bank, 90 Ark. 195, 118 S.W. 706 (1909). In Titan Oil and Gas v. Shipley, 257 Ark. 278, 517 S.W.2d 210 (1974), we said that where a court of equity was not “wholly incompetent” to grant the relief sought, objections to equity jurisdiction are waived when raised for the first time on appeal. The Titan court stressed the failure to object in the trial court as the “underlying basis” for its holding. See also Crittenden County v. Williford, 283 Ark. 289, 675 S.W.2d 631 (1984) and Whitten Developments, Inc. v. Agee, 256 Ark. 968, 511 S.W.2d 466 (1974).

The jurisdiction of courts of equity to appoint receivers needs no authority beyond that already discussed in this opinion.

Ill

A final argument is that the appointment of a receiver was, in effect, the appointment of a conservator in violation of Arkansas law and the due process clause of the federal and state constitutions. Appellant submits that as the undisputed owner of an undivided three-fourths of the plantation she has a constitutional right not merely to own property, but also to manage it, that a state may not deprive an individual of this constitutional right unless she is incapable of managing it for herself. Loss v. Loss, 185 N.E.2d 228 (S.Ct. Ill. 1962);Keenan v. Peevy, 267 Ark. 218, 590 S.W.2d 259 (1979).

The argument was not, however, first offered to the trial court and may not, therefore, be made on appeal. Even arguments of constitutional dimensions must be argued below if they are to be preserved on appeal. May v. Barg, 276 Ark. 199, 633 S.W.2d 376 (1981); Williams v. Edmondson, 257 Ark. 837, 520 S.W.2d 260 (1974); Arkansas Memorial Gardens, Inc. v. Simpson, 238 Ark. 184, 381 S.W.2d 462 (1964).

For the reasons stated, we affirm the decree.

Smith, George Rose, J., not participating.


text:
    The ESTATE of L. W. JOHNSON and Carutha JOHNSON v. Clarence CARR and Rosie CARR, His Wife
    85-97
    691 S.W.2d 161
    Supreme Court of Arkansas
    Opinion delivered July 1, 1985

      Eugene Hunt, for appellant.

      Wilton E. Steed, for appellees.
   Steele Hays, Justice.

The primary question in this case is whether an option to repurchase contained in a contract for sale and incorporated by reference in a subsequent deed, violates the rule against perpetuities.

In July, 1966, L.W. and Carutha Johnson, appellants, entered into a contract with Clarence and Rosie Carr, appellees, for the sale of land. The contract provided in part:

... for an additional ten dollars and other good and valuable consideration, . . . the sellers shall have the option to repurchase the real property involved in this contract in the event purchasers decide to sell. . . . the selling price should not exceed the appraised value of the property [as determined by two qualified appraisers selected by the parties].

In January, 1976, when the payments were completed, the Johnsons delivered a warranty deed to the Carrs, conveying the land described in the contract and stating:

This deed is being executed pursuant to a contract entered into between the parties on July, 1966.

In September, 1982, the Carrs notified the Johnsons they were considering selling the property. When Mr. Johnson expressed his desire to exercise the option, Mr. Carr responded that he had been informed by his attorney that the option had expired but he would consider selling the property to the Johnsons in a manner other than as stated in the 1966 contract. In October, 1982, the Johnsons filed suit against the Carrs for the specific performance of the agreement between the parties.

The court found for the Carrs, holding the clause granting the right of first refusal was indefinite and violated the rule against perpetuities, and denying relief to the Johnsons. On appeal, the appellants challenge the finding that the perpetuities rule was violated.

We have not heretofore considered whether the rule against perpetuities should apply to pre-emptive rights but we think the generally held and better view is that such rights should not violate the rule. See, Restatement of Property, § 413; 40 ALR 3d 920, § 2.

The only issue raised or briefed by either side is whether the time for the exercise of the right must vest or fail within a period measured by a life or lives in being plus twenty-one years from the time of the creation of the interest. Gray, The Rule Against Perpetuities, § 201, (3d ed., 1915). We find the right will vest within a period of time that will not violate the rule.

The right to repurchase granted-to the Johnsons in the July, 1966 contract and incorporated in the 1976 deed is personal to them and terminates upon their death. The right then must necessarily vest, if at all, within the lifetime of the Johnsons and therefore does not violate the rule. Nowhere in the contract or the deed is there any suggestion that the right of repurchase extends to the heirs or assigns of the Johnsons, or that the parties intended the contract to be binding beyond the lives of the Johnsons. The heirs or assigns of the grantors are not even mentioned in either the contract or the deed. The right to repurchase is clearly granted to the Johnsons alone. See Roemhild v. Jones, 239 F.2d 492 (9th Cir. 1957); Kershner v. Hurlbutt, 277 S.W.2d 619 (1955); Campbell v. Campbell, 313 Ky. 249, 230 S.W.2d 918 (1950); Watergate Corp. v. Reagan, 321 S.W.2d 133 (Fla. Dist. Ct. App. 1975); 40 ALR 3d 920, § 6, § 8.

The Carrs contend the repurchase provision in the contract is carried forward into the deed and is controlled by the language conveying the property to the “grantees, their heirs and assigns” and thus violates the rule. We find no merit to this contention. Initially we would point out that as the right to exercise the option expires on the death of the Johnsons, it would be irrelevant whether or not there were language extending the obligation to offer the property indefinitely as the time for the right to vest or fail terminated on the Johnsons’ death. Moreover, the Carrs are incorrect in their argument for two reasons. First, such a specific reference in the deed to the contract is an incorporation and is not merged into the deed. The two instruments are read together, the terms of the contract being made a part of the deed. Gipson v. Pickett, 256 Ark. 1055, 512 S.W.2d 532(1974). Second, there is no indication in either the contract or the deed that the option is available if the heirs or assigns of the grantees offer the property for sale. There is nothing to persuade us the pre-emption clause was intended to continue beyond the life of the Carrs. “We are definitely committed to the rule that the effect of a deed is not to be determined by the words of the granting clause alone, but is to be discovered from the language of the instrument as a whole.” Weatherly v. Purcell, 217 Ark. 908, 234 S.W.2d 32 (1950). And see, Roemhild, supra.

Reversed and remanded for further proceedings not inconsistent with this opinion.

Smith, George Rose, J., not participating.


text:
    David Lee LEWIS v. STATE of Arkansas
    CR 84-41
    691 S.W.2d 864
    Supreme Court of Arkansas
    Opinion delivered July 1, 1985

      Gill, Johnson, Gill & Gill, by: Brooks A. Gill, for appellant.

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

David Lewis appeals from his conviction of aggravated robbery of a liquor store in McGehee, Arkansas and of first degree battery against the proprietor.

The case was tried to a jury. The state presented circumstantial evidence to prove Lewis committed the crimes. Lewis presented evidence he was not in McGehee at the time of the robbery.

As his first point of error, Lewis argues the trial court committed reversible error by permitting a witness to testify on behalf of the state when the witness’ name was not provided to the defense until the morning of the trial. Some three months before trial defense counsel filed a motion requesting the names and addresses of all witnesses the state intended to call. The prosecuting attorney responded to the motion in a timely manner, but failed to list Ms. Hattie Johnson as a witness. On the morning of trial the prosecuting attorney informed defense counsel the state would call Ms. Johnson. The prosecution told the court it had not known about her until that morning, and stated that Ms. Johnson had seen Lewis on the day of the robbery and would help prove the chain of circumstantial proof against the defendant.

The defense objected, moved for exclusion of the witness and for a continuance, citing its motion for discovery and the fact counsel for the defendant had called the prosecutor’s office in the afternoon only the day before and asked if there would be any other witnesses. The court denied the motions, but said the defense would be permitted to interview the witness first. Following the opening statements another motion for exclusion of the witness was made, based on surprise and impossibility for the accused to adequately prepare for the trial.

During her voir dire, the witness stated that on the day of the robbery she was interviewed by the police and had told them everything she knew. The defense renewed its motion, contending the state knew about the witness from the day of the robbery, and had offered no explanation for its failure to supply her name. This motion was made after the defense had interviewed the witness, and was again denied. Lewis argues in his brief the defense had only five minutes to interview this witness. The record supports the claim and the state does not dispute it.

Under A.R.Cr.P. Rule 17.1 (a)(i), upon timely request from the defendant, the prosecution is required to give the names and addresses of witnesses it intends to call and Rule 19.2 imposes a continuing duty to disclose this information. Under Rule 19.7, if there has been a failure to comply, the court may order the undisclosed evidence excluded, grant a continuance or enter such other order as it deems proper under the circumstances. It is well established that information held by the police is imputed to the prosecution’s office. A.R.Cr.P. 17.1; Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1979); Dupree v. State, 271 Ark. 50, 607 S.W.2d 356 (1980); Lacy v. State, 272 Ark. 333, 614 S.W.2d 235 (1981).

In Williams, supra, the defense had filed a timely discovery motion under 17.1. The prosecution learned the night before the trial of a material witness, but did not notify the defense until the lunch break the next day, after the voir dire of the jurors. The defense moved to exclude the evidence but the motion was overruled. Citing rule 17.1 we found the court must act in such a situation and the evidence must be excluded or a continuance granted. In Hughes v. State, 264 Ark. 723, 574 S.W.2d 888 (1978) the prosecution wanted to call a witness the defense had not been informed of. The court granted a continuance by way of a recess for the defense to interview the witness. There is no mention of how long the recess was. We found that if there was any failure to comply with rule 17, it was cured by the recess allowed for interviewing the witness but additionally noted that after the interview the defense made no contention that it was entitled to an additional continuance for purposes of preparing for trial.

In Dupree, supra, we stated that rule 17.1 imposes a duty to disclose information in sufficient time to permit the defense to make beneficial use of it and that a failure to comply could be cured if the defense were granted a continuance or by “recessing the trial until appellant’s attorney could have an adequate interview with the witnesses.” See also Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981) at 96.

In this case, although the prosecution professed no knowledge of the witness until the morning of the trial, it is apparent that the witness had given crucial information to the police, information which was imputed to the office of the prosecution. The state thereby failed to comply with rule 17.1 and an appropriate remedy should have been allowed by the court under 19.7. In some situations a recess for interviewing the witness is sufficient to cure the failure to comply with the rules of criminal procedure. But in this instance we are not satisfied that a brief recess sufficed. Knowledge of the witness was chargeable to the state, her testimony that she saw the defendant in McGehee on the day of the robbery was potentially damaging and it disputed the very essence of the defense — that Lewis was not in McGehee. Given time to investigate and prepare, the defense might have met the proof in some fashion or rendered it doubtful. At least the defendant was entitled to that opportunity.

Since the adoption of the rules of criminal procedure we have, with rare exception, deferred to the trial court in determining when a continuance is required to cure a failure by one side to disclose the name of a witness. We do not intend, by this decision, to take a different course. However, when the state is charged with knowledge of the existence of a material witness, and fails in response to a discovery order over an extended period of time to disclose that information, without explanation, it should not be assumed that in every case a cursory opportunity to interview the witness will cure the omission. Certainly no two cases are alike, and each must be judged on its own, but there may be instances where the demands of a fair trial require the granting of a continuance. We believe this is one of those instances.

As a second point, Lewis objects to the admission of six photographs showing different areas of the store where blood was splattered. He insists the photographs had no probative value and could only inflame the jury. We do not find these photographs to be especially repugnant. On remand, we leave to the trial court the determination of whether the probative value of the photographs outweighs any unfair prejudice. Evidence Rule 403. Cotton v. State, 276 Ark. 282, 634 S.W.2d 127 (1982).

The judgment appealed from is reversed and remanded.

Smith, George Rose, J., not participating.


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

text:
    Ronald WEATHERFORD v. STATE of Arkansas
    CR 85-7
    692 S.W.2d 605
    Supreme Court of Arkansas
    Opinion delivered July 1, 1985

      Guy Jones, Jr., for appellant.

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

Ronald Weatherford appeals from his conviction of driving while intoxicated in violation of the Omnibus DWI Act, Act 549 of 1983. Our jurisdiction is derived from Rule 26(1 )(c). He bases his appeal on five arguments.

I

Weatherford urges it was error to admit the results of a intoxilyzer test because his right to an additional blood or urine test was not explained to him. The record shows the arresting officer told Weatherford he was entitled to a blood or urine test at his own expense at the Conway Memorial Hospital and that the officer would assist him in obtaining the additional test. Weather-ford’s response was that he wanted his physician in Little Rock to perform the test and when that request was refused he said, “Forget the whole thing.”

We cannot sustain the argument, as the officer was not obliged to assist the accused by having a test performed in Little Rock. The provision for assistance in the act does not extend to transporting the accused to another locale, when there is no showing that facilities at the place of arrest are inadequate to perform the necessary tests.

II

Weatherford complains that exhibits 1, 2, and 3 of the state should not have been admitted because they are not authenticated in accordance with Ark. Stat. Ann. § 27-2505 (Repl. 1979). The exhibits are, respectively, a certificate of the Arkansas Department of Health that the intoxilyzer used by the Conway Police Department is approved for use in determining blood alcohol, a certificate that Thomas Lee Smith of the Conway Police Department is qualified and authorized to perform tests by using the intoxilyzer, and a certificate that the Conway Police Department is a Certified Installation for the performance of blood alcohol analysis in accordance with existing laws and regulations. Each certificate is signed by the Director of the Blood Alcohol Program and her signature is notarized.

Ark. Stat. Ann. § 27-2505 deals with the introduction generally of domestic and foreign documents admissible for any purpose in litigation. The Compiler’s Notes suggest the statute has been superseded by the adoption of Rule 44 of the Arkansas Rules of Civil Procedure, which covers the identical subject matter. The Reporter’s Notes to Rule 44 affirm that. Neither Rule 44 nor Ark. Stat. Ann. § 27-2505 has application here, as Ark. Stat. Ann. § 7 5-1031.1(c) (Supp. 1983) sets out how the chemical analysis of blood shall be made and approved by the Arkansas State Board of Health and provides that the certificates of the Department shall be admissible per se. There is no proof this section was not complied with.

Ill

Weatherford also maintains the warnings required under Miranda v. Arizona, 384 U.S. 436 (1966) and Escabedo v. Illinois, 378 U.S. 478 (1964), were not given. The state concedes no warnings were given, but argues that since no incriminating statements were introduced, the omission of the Miranda warnings is harmless error, at best.

When one is arrested for the alleged commission of a misdemeanor traffic offense, and questioned by police officers, his responses are not admissible if the warnings outlined in Miranda v. Arizona are not first given. That was the holding in Berkemer v. McCarty, _ U.S. _, 104 S.Ct. 3138 (1984). However, the distinction between Berkemer and the case before us is that in Berkemer, statements of the accused that he had drunk two beers and smoked several joints of marijuana shortly before being stopped were received in evidence, notwithstanding the lack of Miranda warnings. Berkemer’s conviction was necessarily based in part on his own statements, as the intoxilyzer did not detect any alcohol in his system. In contrast to Berkemer, Weatherford was not asked what he had had to drink and nothing was offered by the state in the form of incriminating statements in establishing the charge of driving while intoxicated. True, he was asked to perform field sobriety tests, such as walking heel to toe, touching his nose with his index fingers and the like. And while such tests, if poorly performed, having incriminating consequences, they are not the sort of self-incrimination which the Fifth Amendment is intended to prevent. Schmerber v. California, 384 U.S. 757 (1966); Williams v. State, 239 Ark. 1109, 396 S.W.2d 834 (1965). The protections of the Fifth Amendment do not extend to demonstrative, physical tests, but are intended to immunize the defendant from providing the state with evidence of a testimonial or communicative nature. Schmerber v. California, supra.

In Schmerber, Mr. Justice Holmes is quoted:

Another objection is based upon an extravagant extension of the Fifth Amendment. A question arose as to whether a blouse belonged to the prisoner. A witness testified that the prisoner put it on and it fitted him. It is objected that he did this under the same duress that made his statements inadmissible, and that it should be excluded for the same reasons. But the prohibitions of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical, and moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof. Holt v. United States, 218 U.S. 245 (1910), at 252.

IV

Next, Weatherford claims his motion for a mistrial should have been granted because of a remark by the trial court which constitutes, he believes a comment on the evidence in violation of our constitution, Article 7, Section 23. We must reject the contention.

During trial the sufficiency of notice by the police that Weatherford was entitled to an additional chemical test came into question, and whether the requisite assistance in obtaining such a test was offered to him. Defense counsel moved to strike the intoxilyzer test administered by the police officer and asked the court to instruct the jury to disregard it. The motion was overruled and the court told the jury:

The court: Alright, based on the evidence that I have heard at this time, ladies and gentlemen, let me admonish you this — and I wouldn’t make this admonishment at this time, Mr. Jones, except that you are requesting me to do so.
The testimony is that when the Defendant was told that it was to be at his own expense and could not be at Little Rock at his own physician, he withdrew his request for a blood test. And that’s the state of the record at this time, and I will tell you the issue of the blood test being given or not given is not an issue in this case, and you are to disregard any testimony about it unless it develops sometime later that it may be. Now, proceed on. (R. 95).

Weatherford submits the words can only be interpreted as telling the jury to disregard the testimony of Mr. and Mrs. Weatherford. We disagree with that contention, as the incident occurred during the testimony of Officer Thomas Smith, who performed the breath test, and before either Mr. or Mrs. Weatherford had testified. We read the trial court’s comment as an attempt to sum up the proof at that point in the trial. The remarks were not inaccurate, as it was undisputed at that point that Weatherford had asked only to have the blood test performed in Little Rock, which, as we have said, was not required under the act. The trial judge’s comment clearly left open the possibility of testimony being developed later in the trial. If some added comment was thought necessary, it was the duty of the defense to ask for it. Fielder v. State, 206 Ark. 511, 176 S.W.2d 233 (1943).

V

The final point concerns an attempt to impeach the arresting officer by offering proof from Mr. and Mrs. Weather-ford that the officer’s testimony in the circuit court trial was inconsistent with his earlier testimony in the Conway Municipal Court. No error is shown, because there was no proffer of the testimony Weatherford claims was wrongfully excluded. The assertion of appellate counsel and the dissenting opinion that Weatherford was denied the opportunity to proffer testimony on this point is wholly unsupported by the record. Farrell v. State, 269 Ark. 361, 601 S.W.2d 835 (1980).

The judgment appealed from is affirmed.

Purtle, J., dissents.

Smith, George Rose, J., not participating.

John I. Purtle, Justice,

dissenting. I am of the opinion that Miranda and Escabedo apply in Arkansas as well as elsewhere. The Fourth and Fifth Amendments to the United States Constitution, and the Arkansas Constitution and laws apply in Faulkner County, Arkansas, as much as anywhere else in the United States. It is admitted that appellant was not warned of his rights before being questioned. The trial court ruled that “the Miranda warnings were not necessary in the arrest and later conviction of DWI.” The facts are uncontradicted that appellant was in custody from the time the officers arrived at the scene.

The majority first admit that Berkemer v. McCarty, _ U.S. _, 104 S.Ct. 3138 (1984), requires the Miranda warning in misdemeanor traffic offenses and then distinguish it away by saying this appellant was not entitled to them or he didn’t say anything very damaging. The majority ought to at least tell the trial judges that the Miranda rule applies even in misdemeanor traffic charges. The main purpose of Miranda warning is to be sure persons know of certain basic rights, one of which is to have an attorney to guide them in their words, actions and decisions. The rule was totally disregarded by the arresting officers and the trial court. I will not be a party to such slip-shod treatment of an accused.

In the absence of reasons to believe the contrary, I believe what the attorneys state in the briefs are either in the record or part of their arguments here.

I must also disagree with the ruling on the trial court’s comment on the evidence during the trial. The court stated:

The testimony is that when the defendant was told that it was to be at his own expense and could not be at Little Rock at his own physician, he withdrew his request for a blood test. And that’s the state of the record at this time, and I will tell you the issue of the blood test being given or not given is not an issue in this case . . .” (Emphasis added).

That simply is an untrue comment on the facts. Appellant had, according to the testimony of Officer Glenn Free, signed a document requesting a blood test. This testimony was from the officer who testified before Officer Smith testified. Both officers testified about appellant requesting a blood test and that he would be restricted to the Conway Memorial Hospital for such a test. I am sure there are many doctors, nurses and technicians in Conway who are qualified to give the test. Two qualified persons were there at the jail in the presence of the officers while appellant was contending for his right to a blood test. Also, Officer Free stated that they were informed by appellant that he wanted a blood test and that the officers informed him he could only get a test at the local hospital. When the Weatherfords testified, the issue was most definitely put in dispute. The trial court never changed his comment and as far as the jury was concerned the issue of a request for a blood test was not in issue.

The crowning blow in this case is that the appellant was refused the right to cross-examine the officers about prior conflicting statements. Some of the statements were testimony taken at the municipal court trial on the same issue. In overruling appellant’s attempts to introduce prior inconsistent statements the trial court stated:

I am going to rule that you cannot use the witnesses to testify about the prior hearing because it is a trial de novo and maybe we can get the Supreme Court to give us a decision on that and, if so, explain to us how we are going to do it properly and correctly.

The appellant’s counsel then attempted to get the Weatherfords’ testimony into the record but the trial court rejected the effort. The court also ruled that questions about prior statements made in municipal court by anyone could not be testified to because it was not a “court of record.” Appellant’s proffer was disallowed. How, pray tell me, may one have such an erroneous ruling reviewed so long as we sanction such tactics by sweeping them under the rug?

I would reverse and remand for a proper trial.

       Record, p. 67.


author: David Newbern, Justice. John I. Purtle, Justice,

text:
    Angelia CUDE v. Arron B. CUDE
    84-311
    691 S.W.2d 866
    Supreme Court of Arkansas
    Opinion delivered July 1, 1985

      Boswell, Smith & Clardy, by; Ted Boswell, for appellant.

      Ponder & Jarboe, for appellee.
   David Newbern, Justice.

The issue in this case is whether the court erred in not removing the administrator of a decedent’s estate for unsuitability caused by alleged misrepresentations and a conflict of interest.

The main problem is that the appellant, who is the decedent’s widow, has decided she wants her interest and that of her daughter to be represented by different attorneys from those chosen by the appellee, who is the father of the decedent and administrator of his estate. She would like to replace the appellee and the attorneys he has chosen with a bank to serve as administrator and then presumably prevail upon the bank to hire attorneys she would like to bring a wrongful death action.

As we must interpret Ark. Stat. Ann. § 62-2203 (Repl. 1971) which governs suits to remove administrators, our jurisdiction stems from Arkansas Supreme Court and Court of Appeals Rule 29. 1. c. We affirm the trial court’s refusal to remove the administrator.

1. Standing and Choice of Counsel

On October 6, 1983, and at the instance of appellee Burrel Cude, the appellant went with Burrel to the law offices of Ponder and Jarboe where she signed an instrument petitioning the court to appoint Burrel as administrator of her deceased husband’s estate. The trial court, upon hearing Angelia’s subsequent petition for removal of Burrel as administrator, found that at the time Angelia nominated Burrel she had been advised of her right to nominate whomever she chose. The court also found that no undue influence was asserted and no misrepresentations were made to Angelia to get her to nominate Burrel.

Burrel testified that he and one of the lawyers to whom he took Angelia explained to her the duties of an administrator. Angelia testified she did not remember having been told. If there is a conflict in this testimony we see no reason for saying the judge’s determination that there was no misrepresentation was clearly erroneous. Ark. R. Civ. P. 52(a).

The record shows that Burrel contracted with Ponder and Jarboe to file the wrongful death action on October 29, 1983. Burrel testified that at the meeting of Angelia, Burrel and attorney Ponder it was explained to Angelia that Ponder and Jarboe were not being hired to file a wrongful death action, and there was discussion about Burrel trying to settle the death claim without incurring lawyers’ fees. When Burrel decided to ask Ponder and Jarboe to pursue the claim, some twenty-three days later, he did not notify Angelia.

Angelia, apparently failing to understand that such an action may be pursued only by the administrator, hired other attorneys to represent her and her daughter, thinking that they could file the death claim.

We are cited to no authority showing that Burrel had a duty to consult with Angelia about his pursuit of a wrongful death action. The personal representative of the decedent, in this case the administrator, is clearly the party to bring the action. Ark. Stat. Ann. § 27-907 (Supp. 1983). While the widow and daughter of the deceased are beneficiaries of any wrongful death recovery, Ark. Stat. Ann. § 27-908 (Repl. 1979), we are cited to no case or statute giving them standing as parties to the action. Therefore it was not they, but Burrel, whose duty and right it was to pursue the action, subject to the probate court’s approval, and to choose counsel for that purpose.

2. Conflict of Interest

The second reason advanced by Angelia for her contention that the court should have removed Burrel as administrator is that Burrel holds legal title to the home in which she and the decedent lived but in which she has an equitable interest because her husband, the decedent, was making payments to Burrel toward purchase of the property, apparently pursuant to an unwritten contract. Burrel acknowledged he purchased the property for the decedent and Angelia because they could not afford loan payments, and that his intention had always been to allow them to purchase the home from him while they continued to live in it but that he had not received any payments. Angelia says the conflict is demonstrated by the failure of Burrel to list the decedent’s interest in the home as an asset of the estate.

The court found there was no conflict of interest between Burrel and the estate “in that he does not intend to file a claim against the estate.” There may, of course, be a conflict between the interest of Burrel and that of Angelia, and a court may ultimately have to resolve it by determining whether Angelia and the decedent had acquired an interest in the home. The real question here, however, has nothing to do with such a conflict but with whether, in terms of Ark. Stat. Ann. § 62-2203 (Repl. 1971), the appellee is “unsuitable” to continue as administrator. We find no reason to set aside the trial court’s finding that he was not unsuitable.

The only case cited by the appellant on this point is Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975), in which we required the probate court to remove an administratrix who persistently acted in her own interests in order to deprive her stepchildren of their entitlements. There the administratrix had failed to follow specific orders of the court. Here we have no demonstration of any such misconduct.

Conclusion

We cannot end this opinion without noticing some curious provisions in the court’s order refusing to remove the appellee as administrator. The order, in paragraph 5., says “no attorney’s fee [will be] paid to Ponder and Jarboe with regard to any monies which are awarded to Angelia Cude by settlement or suit and that she is entitled to have independent representation.” In the last paragraph it is ordered “that Angelia Cude is entitled to her own independent representation.” Taken together, these statements might be read to mean that the appellant will be a party to the wrongful death action. Although she may have counsel to see to it her interests are protected, she will not be a named party to the suit. Whether Ponder and Jarboe would be entitled to fees on a portion of a judgment or settlement designated as being on behalf of Angelia is not at issue here, and thus we refrain from comment on that point. However, we again emphasize that there will be only one wrongful death action brought by only one plaintiff.

Affirmed.

Purtle, J., dissents.

Justice George Rose Smith not participating.

John I. Purtle, Justice,

dissenting. The widow and children of a decedent are the ones most affected by the handling of the decedent’s estate. Certainly the widow should be able to decide which attorney she wants to represent her and her child. In the present case it is obvious the personal representative has a conflict of interest with the estate. He failed to list an interest in the home where decedent and the widow resided as part of the estate. The widow claims an interest in the home which she and her husband were buying from the decedent’s father, who persuaded the widow to go to his attorney’s office and sign the papers to have him appointed personal representative. I would grant the petition to remove appellee as the personal representative of the decedent’s estate.


author: Per Curiam.

text:
    Joe CONLEY v. STATE of Arkansas
    691 S.W.2d 868
    Supreme Court of Arkansas
    Opinion delivered July 1, 1985

      Appellant, pro se.

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

Joe Conley was convicted in the Circuit Court of Independence County of delivery of a controlled substance, cocaine, and was sentenced to a term of ten years imprisonment. He was represented at trial by retained counsel C. Eric Hance. No appeal was taken. Petitioner has now filed a pro se motion for belated appeal in which he asserts that he made known his desire to appeal to Mr. Hance who did not take steps to perfect an appeal. Mr. Hance has filed an affidavit in response to the motion for belated appeal stating that petitioner did not ask to appeal and stated rather that he would not want to risk a lengthier sentence if the conviction were overturned and he were retried. Mr. Hance was relieved as counsel in this case by the trial court but not until May 8, 1985, more than four months after the time for filing a notice of appeal had elapsed.

A belated appeal may be granted for good cause even if no notice of appeal was filed. A.R.Cr.P. Rule 36.9. We have consistently held that the failure of counsel to perfect an appeal in a criminal case where the defendant desires an appeal amounts to a denial of the defendant’s right to effective assistance of counsel. Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982). Even though Criminal Procedure Rule 36.26 states that counsel, whether retained or appointed, shall continue to represent a convicted person throughout appeal unless permitted to withdraw by the trial court or this Court, we recognize that a convicted defendant may waive his right to appeal. Hendersons. State, 278 Ark. 107, 643 S.W.2d 107 (1982).

There are instances where it can be determined from the motion and counsel’s affidavit whether the defendant waived appeal, but in the case before us, the allegations of petitioner and counsel are in direct conflict. Since it is apparent that there are questions of fact which cannot be resolved on affidavits, we must deny petitioner’s request for belated appeal. Schuster v. State, 261 Ark. 730, 551 S.W.2d 210 (1977). The denial, however, is without prejudice to his applying to the trial court for a belated appeal evidentiary hearing on the question of whether, when sentence was imposed and judgment entered, he was informed of his right to appeal in accordance with A.R.Cr.P. Rule 36.4; and, if so, whether he voluntarily waived that right by his failure to communicate to counsel his desire to appeal. If the trial court finds that petitioner was properly informed of his appeal right, it shall be incumbent on petitioner to show that he made known to counsel his desire to appeal. Henderson v. State, supra.

In the event a hearing is held, the trial court shall make written findings of fact and conclusions of law. The petitioner may appeal from an adverse ruling. If the ruling is favorable, he may file the findings and conclusions and the record of the hearing in support of a second motion for belated appeal in this Court.

Motion denied without prejudice.

George Rose Smith, J. not participating.


text:
    Marvin IBERG v. Hon. Don LANGSTON, Circuit Judge on Assignment to Faulkner County
    CR 85-104
    691 S.W.2d 870
    Supreme Court of Arkansas
    Opinion delivered July 5, 1985

      Helen Rice Grinder, for appellant.

      Chris Piazza, Prosecuting Attorney of Pulaski County, by: Leslie M. Powell, Deputy Prosecuting Att’y, for appellee.
   David Newbern, Justice.

The petitioner is accused of murdering Marvin Williams on May 6, 1960. He contends the statute of limitations has run and thus the court lacks jurisdiction. We hold the statute of limitations has not run.

Unless the petitioner elects to be governed by the 1976 criminal code, the statute defining the offense charged is that which was in effect at the time the offense was allegedly committed. Ark. Stat. Ann. § 41-102(3), (4) (Repl. 1977). No such election has been made, thus the offense charged, first degree murder, is defined in Ark. Stat. Ann. § 41-2202 (Repl. 1964).

The petitioner’s argument is that the three year limitation found in Ark. Stat. Ann. § 43-1602 (Repl. 1977) applies. That statute provides that felonies other than capital offenses cannot be prosecuted unless an indictment is found within three years of the commission of the offense, except in some instances not germane here.

The respondent contends the offense with which the petitioner is charged is a capital offense and thus, according to Ark. Stat. Ann. § 43-1601 (Repl. 1977), it may be tried at any time after it was committed.

The sole authority cited by the petitioner for his contention that murder in the first degree was not punishable by death, and thus not a capital offense, in 1960 is Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979). In that case we granted a writ of prohibition to prevent a trial for second degree murder when the information was not filed until more than four years after the offense was alleged to have been committed. We held that § 43-1602 applied as it was in effect at the time the offense was committed (1974) and had not been repealed even though the 1976 code provided a new statute of limitations. See Ark. Stat. Ann. § 41-104 (Repl. 1977 and Supp. 1983).

The petitioner cites this language from Patrick v. State, supra:

Prior to the adoption of the code, the statute of limitations on the prosecution of murder in any degree was governed by Ark. Stat. Ann. §43-1602 (Repl. 1977) since it was not a felony “punishable with death.” [Emphasis added.]

That statement was dictum. If it meant that at no time prior to the 1976 code was any degree of murder punishable by death, it was inaccurate. In 1960, Ark. Stat. Ann. § 41-2227 (Repl. 1964) provided that first degree murder was punishable by death or life imprisonment. Possibly the statement was based on the U. S. Supreme Court decision in Furman v. Georgia, 408 U.S. 238 (1972), which held unconstitutional laws permitting courts and juries unbridled discretion in choosing between the death penalty and life imprisonment in capital offense cases.

The gaps in application of capital punishment between the Furman v. Georgia, supra, decision and the enactment of standards to guide courts and juries in selecting the death penalty had no effect on the 1960 law which governs this case. The death penalty was a part of the law of Arkansas even after Furman v. Georgia, supra, was decided in 1972. In Dobbert v. Florida, 432 U.S. 282 (1977), the U. S. Supreme Court held that capital punishment was permissible even with respect to an offense committed after the 1971 decision and before Florida enacted legislation curing the constitutional defects in Florida’s application of the death penalty. The Supreme Court’s rationale was that the accused was continually on notice of the severity of the offense in the eyes of the State of Florida, and once the constitutional infirmities in selection of the death penalty had been cured it could be applied. While the precise holding in Dobbert v. Florida, supra, was that the curative Florida legislation was not ex post facto legislation as applied there, the analogy to the case before us is obvious. Just as Florida, Arkansas continued to have a death penalty law on its statute books even after the decision in Furman v. Georgia, supra.

As the off ense of which the accused in this case has been indicted was one regarded by the law of this state as punishable by death in 1960, we look to the statute applicable at that time to determine whether the passage of time prevents prosecution. That statute is Ark. Stat. Ann. § 43-1601 (Repl. 1977). It provides:

Any person may be prosecuted, tried and punished, for any offense punishable with death, at any time after the offense may have been committed.

There is no statute of limitations which has the effect of depriving the circuit court of jurisdiction in this case.

Writ denied.

George Rose Smith, J., not participating.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. It is undisputed that the Arkansas Criminal Code became effective on January 1, 1976, and that the statute of limitations for murder is unlimited. However, the alleged crime was committed on May 6,1960, long before the Code went into effect. The very first part of the Code provides that prosecution thereunder shall be “for any offense defined by this Code and committed after the effective date [January 1, 1976] hereof.” Ark. Stat. Ann. § 41-102 (Repl. 1977). Arkansas Stat. Ann. § 41-102 (3) states: “The provisions of this Code do not apply to the prosecution for any offense committed prior to the effective date of this Code. Such an offense shall be construed and punished in accordance with the law existing at the time of the commission of the offense.” The following sub-section gives the accused the right to elect to be tried pursuant to the Code.

At the time of the adoption of the Arkansas Criminal Code there were two statutes of limitations relating to murder. Arkansas Stat. Ann. § 43-1601 (Repl. 1977) states:

Any person may be prosecuted, tried and punished, for any offense punishable with death, at any time after the offense may have been committed.

Arkansas Stat. Ann. § 43-1602 provides in pertinent part as follows:

No person shall be prosecuted, tried, and punished for any other felony unless an indictment be found within three (3) years after the commission of the offense. . . .

We had this same question presented in Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979). The charge against Patrick was second degree murder pursuant to Ark. Stat. Ann. § 41-2206 (Repl. 1964). The offense had been committed prior to the effective date of the Code. The defense was that the statute had run because prior to the effective date of the Code the limitations period for the offense was three years. In upholding the defense we stated: “If the General Assembly had intended that the preexisting statute of limitations on the prosecution of felonies be superseded by the code provision, it would have been a very simple matter to have included § 43-1602 in the list of statutes repealed.” We held that the statutes of limitations in the Code, and prior ones, were jurisdictional. To the same effect see Savage v. Hawkins, 239 Ark. 658, 391 S.W.2d 18 (1965).

In the case of Furman v. Georgia, 408 U.S. 238 (1972), the United States Supreme Court struck down the Georgia statute which gave the courts and juries unbridled power to mete out life or death sentences. Arkansas law was about the same as the one strupk down in Furman. Our law at that time was codified as Ark. Stat. Ann. § 41-2227 (Repl. 1964) and stated:

Every person convicted of murder in the first degree, or as accessory before the fact to such murder, shall suffer death (by hanging by the neck) [or life imprisonment].

The method of carrying out the death penalty had been changed from hanging to electrocution at the time of Furman. However, unbridled discretion was still the law. Therefore, the death penalty in Arkansas was struck down at the same time as that of Georgia. From 1972 until 1976, our death penalty was as invalid as were our Jim Crow laws although they may still have been on the books. For a period of four years we did not have a valid death penalty law. Murder in the first degree;, during these four years could have been punished by a maximum of life in prison.

Until the Arkansas Criminal Code was enacted in 1976, the penalty for capital murder was either life without parole or death by electrocution. [The manner of imposing the death penalty is now by lethal injection.] The maximum penalty for murder in the first degree is now life in prison. From 1972 to 1976, the greatest penalty for first degree murder was life in prison and the statute of limitation was three years. If this is true then the present prosecution is barred because if the death penalty statute was invalid in 1972, it was also invalid in 1960.

In effect the majority opinion holds that Furman had no effect on the death penalty statute in Arkansas. I do not agree with such holding. To so hold, it seems to me, would be to say that murder in the first degree may be punishable by death. That is not the law. First degree murder is not included in our capital murder statute.

I would issue the writ.