author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Andrew LOGAN, Jr. v. STATE of Arkansas
    CR 78-137
    576 S.W. 2d 203
    Opinion delivered January 29, 1979
    (In Banc)

      Frank C. Elcan, II, Deputy Public Defender, for appellant.

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

Logan was charged with aggravated robbery, was found guilty, and was sentenced to 25 years in prison. Three points for reversal are argued, the first of which includes subordinate contentions.

On the day of the robbery Logan and the victim, Doss Tatum, Jr., struck up an acquaintance in West Memphis, in Crittenden County, during the afternoon. Logan gave his name as Jesse Gates. The two spent several hours together, riding around in Tatum’s car and drinking. At about 7:00 p.m. Logan, who was driving, stopped the car on a lonely road off a highway, drew a pistol, and robbed Tatum of $68. Logan drove away, leaving Tatum on the road. Tatum made his way to a nearby store and called the sheriff’s office to report the crime. Over a period of several hours a Crittenden County deputy sheriff, J.M. Davis, investigated the case and eventually discovered that Tatum’s companion had actually been the appellant, Logan.

Davis learned that Logan was at a gambling and dancing “joint” at Hicks Station, a community in adjoining St. Francis County. Davis called the sheriff’s oifice of that county and, accompanied by Sam Hughes, a St. Francis County deputy sheriff, and by another Crittenden County officer, went to Hicks Station and arrested Logan at about 3:00 a.m. Davis took a pistol from Logan and transported him back to Crittenden County. There officers found $52.52 in Logan’s pocket. A day later, under interrogation, Logan confessed to the crime and consented to a search of his apartment, where a watch believed to have been taken in the robbery was seized.

It is first argued that the pistol, the money, the confession, and the watch were the fruits of an illegal arrest and should not have been admitted in evidence. It is contended that Officer Davis did not have authority to arrest Logan in St. Francis County, because (1) the officer did not have a warrant, which would authorize him to make an arrest in any county under Ark. Stat. Ann. § 43-411 (Repl. 1977) and under Rule 4.2 of the Rules of Criminal Procedure (1976), and (2) the officer was not in fresh pursuit of Logan. Ark. Stat. Ann. § 43-501.

We need not discuss these contentions, because it is a fair inference from Davis’s testimony that Sam Hughes, the St. Francis County deputy, participated in the arrest. We quote from Davis’s testimony:

Q. Do you have any commission entitling you to make an arrest ... in St. Francis County?
A. We had a deputy sheriff out of St. Francis County with us.
Q. You made the arrest?
A. We went with him and made the arrest, yes, sir.
* * * * *
Q. You are the one who placed him under arrest?
A. We talked to him there. Deputy Sheriff Sam Hughes and I put him under arrest right there.
* * * * *
Q. Officer Davis, I think you testified the deputy’s name that was with you and participated in the arrest was Sam Hughes?
A. St. Francis County Deputy Sam Hughes, yes, sir.
Q. And he is a deputy sheriff with St. Francis County—
A. Sheriff’s office, yes, sir.

An arrest, to be effective, does not require formal words of arrest. Reed v. United States, 401 F. 2d 756 (8th Cir. 1968). The restraint is equally as important as the words. In the language of our statute: “An arrest is made by placing of the defendant in restraint, or by his submitting to the custody of the person making the arrest.” § 43-412.

An analogous situation involving a joint arrest by three officers was considered in Parrish v. Herron, 225 S.W. 2d 391 (Mo. App. 1949). There the plaintiff sued a sheriff, his deputy, and a city marshal for false arrest and imprisonment. The deputy argued that he was not liable, because he did not participate in making the arrest. He was present, however, and later guarded the arrested person while the arresting officer made a search. In holding the deputy liable the court said: “It is well established that all persons who directly procure, aid, abet, or assist in an unlawful imprisonment are liable as principals.” Even though it was Officer Davis who actually told Logan that he was under arrest, we think it clear that Officer Hughes was also present in his capacity as a deputy sheriff and participated in making the arrest. If that is not true, the record does not suggest any reason for Officer Davis to request the local officer to accompany him to Hicks Station.

Since the arrest was legal without regard to fresh pursuit, there was no requirement that Logan be taken before a St. Francis County magistrate under the Intrastate Fresh Pursuit Act, § 43-502. Criminal Procedure Rule 8.1 merely requires that an arrested person be taken before a judicial officer without unnecessary delay. The arrest occurred at about 3:00 a.m. on Sunday, and Logan was taken before the municipal court on Monday morning. His interrogation and the consent to the search of his apartment did not occur until Monday afternoon. We find no violation of his rights in this respect. Nor do we find any basis for overturning the trial judge’s finding that the confession was voluntary.

It is argued that the $52.52 taken from Logan after his arrest was not admissible, because the victim did not testify about the denominations of the bills or other particular characteristics of the money. The facts stated in Patrick v. State, 255 Ark. 10, 498 S.W. 2d 337 (1973), are so incomplete that we do not regard that opinion as holding that such identifying characteristics must be shown before money can be admitted in evidence. Tatum testified that $68 was taken from him, and Logan was found about eight hours later with $52.52 in his pocket. The evidence was relevant under our statutory definition: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Uniform Rules of Evidence, Rule 401, Ark. Stat. Ann. § 28-1001 (Repl. 1962). That Logan had almost the amount of money that was taken was a relevant fact. Moreover, there could have been no prejudice even if the evidence had been inadmissible, for Logan admitted in his confession that he took $52 from the victim.

Again, it is argued that the watch found at Logan’s apartment should have been excluded, because the officer making the search did not give Logan a receipt describing the watch. Rules of Criminal Procedure, Rule 11.4. The Commentary to Article IV of the rules (following Rule 10.1) explains the purpose of the receipt: “Such a receipt informs the person that the seizure is under color of law and may be of evidentiary value in a subsequent proceeding under Rule 15 for the return of seized things.” Neither purpose for the receipt is pertinent here. Evidence seized illegally is inadmissible, because otherwise the constitutional prohibition of unreasonable searches and seizures would not be a deterrent to law enforcement officers. But the constitution does not require the giving of the receipt, and we consider the rule to' be merely directory.

Finally, Officer Davis testified in response to a question that when Logan was transported back to Crittenden County he made no objection to being brought back. Counsel moved for a mistrial, on the ground that the testimony violated Logan’s constitutional right to remain silent. If so, any possible prejudice could readily have been eliminated by an admonition to the jury, but that remedy was not requested. The motion for a mistrial was therefore properly denied. Russey v. State, 257 Ark. 570, 519 S.W. 2d 751 (1975).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion in this case for several reasons. Had the trial court proceeded in accordance with this dissent, the results of the trial probably would have been about the same. In my opinion, the errors committed do not fit into the “harmless error” category; neither do they reach up to the constitutional denial level. Nevertheless, they, are errors which the court sanctions in this case and are likely to be enlarged in the future. The time to correct such errors, in my opinion, is now.

The criminal act occurred in Crittenden County on June 12, 1976, about 7:00 p.m. Within a couple of hours, the Crittenden County sheriff commenced his investigation. During the next few hours, the Crittenden County sheriff developed enough evidence to form the belief that appellant was probably the man he wanted. His suspicions were strong enough that he traveled to St. Francis County looking for appellant. About 3:00 a.m. the following day, June 13, 1976, Deputy Davis of Crittenden County went to St. Francis County and met Deputy Sam Hughes and together they went to a place called Hicks Station, accompanied by an officer from Earle, Arkansas, where appellant was located. Deputy Davis had not obtained a warrant for the arrest of appellant although eight hours had elapsed since the robbery had taken place. There is absolutely no evidence appellant had reason to believe he was a suspect in this crime nor was he attempting to flee. The sheriff and his deputies, like other county officers, have jurisdiction within their county unless it is extended in some manner, otherwise there would be no need for each county to elect a sheriff.

If there was an exception in this case to allow a sheriff of one county to make an arrest in another county, it must be one of fresh pursuit, a citizen’s arrest, or other statutory grounds. Ark. Stat. Ann. § 43-404 (Repl. 1977) allows a private person to arrest if he had reasonable grounds for believing the person arrested has committed a felony. “Fresh pursuit” is defined in Ark. Stat. Ann. § 43-503 (Repl. 1977); “... the pursuit of a person who has committed a felony or is reasonably suspected of having committed a felony in this state — Fresh pursuit as used herein shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.” I have been unable to locate any case wherein the meaning of fresh pursuit has been construed. Rule 4.1, on its face, would appear to allow an officer to make an arrest, such as this one, without regard to county lines. However, we must look at it overall and in light of prior determinations of the extent of the sheriff’s authority.

In the present case, the robbery occurred about 7:00 p.m. and by 9:00 p.m., or soon thereafter, the Crittenden County sheriff had determined appellant was a suspect and commenced searching for him. Upon learning the suspect was probably at Hicks Station in St. Francis County, the sheriff’s deputy proceeded, without a warrant, to St. Francis County where he met a St. Francis County deputy and then located appellant and arrested him. Although the St. Francis deputy and an officer from Earle were present, the Crittenden County deputy made the arrest. In the case of Blevins v. State, 31 Ark. 53 (1876), the Sheriff of Pope County made an arrest in Conway County and this Court stated:

“The act of the Sheriff of Pope County therefore, in arresting said Moore in Conway County, was of no more force and validity than if it had been that of a private citizen and the bond taken by him upon the arrest was a mullity.”

If the Crittenden County deputy had obtained a warrant, or even given the St. Francis County deputy reasonable cause to believe the appellant had committed a felony and allowed the St. Francis deputy to make the arrest, there would be no doubt in my mind that the arrest was legal. However, none of these were done. This leaves, in my opinion, only the fresh pursuit theory. The United States Supreme Court has stated that the Sheriff of Morris County, Texas, had no authority to arrest a person in Titus County, Texas. Ward v. Texas, 316 U.S. 547, 62 S. Ct. 1139 (1942).

Here the arresting officer had known for four or five hours who he was going to arrest if he could find him. He was never in pursuit but only looking or trying to locate the suspect. He found him in the adjoining county and arrested him and transported him out of the county without a hearing as required by Ark. Stat. Ann. § 43-502 (Repl. 1977). This statute is a part of the Fresh Pursuit Act (1941 Ark. Acts, No. 19).

If the arrest was illegal, and I think it was, then the evidence should have been suppressed. There was absolutely nothing to connect the $52 to the robbery. I am sure a lot of people in St. Francis County have as much as $52 on them at various times and certainly it is not evidence they have committed a crime. If the victim had even stated the money found was in the same denominations as that found on the appellant, it might have shed some light on the subject. Even with a valid arrest, the money should not have been admitted into evidence. There has probably been no injustice done in this case, but appellant’s rights have been violated. In the next case, these same illegal acts might cause a manifest injustice to occur. I am afraid the majority has fostered the incursion of roving bands of strangers who might be counterfeited by bands of marauders.

There is still plenty of time to do this whole case over and omit the errors committed in this case.

I would reverse and remand for a new trial.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    David MUNNERLYN v. STATE of Arkansas
    CR 78-138
    576 S.W. 2d 714
    Opinion delivered January 29, 1979
    (Division II)
    [Rehearing denied March 5, 1979.]

      Jeff Duty, for appellant.

      Bill Clinton, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was found guilty of the sale of methamphetamines, a controlled substance, on October 27, 1977, sentenced to ten years imprisonment and fined $10,000. Appellant appeals from his conviction, alleging four points for reversal.

Points I and II of appellant’s brief both deal with alleged irregulariries in the chain of custody of evidence introduced at the appellant’s trial in two different samples, and we shall discuss them together.

Methamphetamines were introduced into evidence from two sales allegedly made by the appellant, occurring on October 14, 1977 and October 27, 1977. The testimony which furnished the foundation for the introduction of these exhibits was substantially as follows:

Both purchases from the appellant were made by Jimmy Stevens, with money provided specifically for that purpose by Benton County Deputy Sheriff Don Rystrom. Stevens and Rystrom testified that the pills bought on October 14th were delivered in person by Stevens to Rystrom on the same day they were bought. They were in a plastic bag when Rystrom received them. After the pills were bought on October 27th (the sale for which appellant was convicted), Stevens placed a plastic bag containing them in the mailbox outside the Stevens residence and called Rystrom to tell him the pills were in the mailbox. Rystrom retrieved the pills from the mailbox while Stevens watched.
Rystrom followed the same procedure with both parcels. He attached a Benton County Sheriff’s Department evidence tag which contained a description of the enclosed pills and a case number (R 77-411); each parcel was then sealed in an envelope and mailed to the Drug Laboratory of the Arkansas Department of Health, via certified mail.
Two different chemists employed by the department of health analyzed the pills. One of them, Gary Dallas, testified that the sample he analyzed was taken from a package received in the laboratory on October 20, 1977, by certified mail, bearing the same number given it by Rystrom. The envelope was introduced as Exhibit 1. Exhibit 2 was a plastic bag containing 96 white tablets to which was attached a card on which the words “Benton County Sheriff’s Department” and “Case No. R 77-411 ” had been written by someone in the sheriff’s office. Gene Bang, the other chemist, gave similar testimony as to the other sample. It was received on November 9th, 1977. Both testified as to the procedure which is followed when samples from law enforcement agencies are received for testing. The evidence technician, actually a chemist assigned to receive samples, signs the certified mail receipt, notes his or her initials on the package and assigns each package a “lab number,” which is written on the package. The sample is placed in a locked room to which only the chemists have access. The sample remains in that room until the lab supervisor assigns it to a particular chemist for analysis. The chemist picks up the sample, performs an analysis, seals the package or envelope with a health department sticker containing the lab number, the date received and the date sealed, the chemical analysis results and the chemist’s signature. He then places the sample in a locked vault until such time as it is to be introduced as evidence in a trial or returned to the law enforcement agency which originally sent it for testing. Each of the chemists identified the package he had placed in the vault, before it was introduced. Each also testified that the envelope he received for analysis showed no signs of having been tampered with when he received it. Each also stated that he had brought the sample with him when he came to testify and that the envelope in which it was received was in the same condition that it had been when he sealed it and placed it in the vault. The seal was broken and the envelope opened and its contents identified in the presence of the jury.

The appellant argues that the introduction of both samples was erroneous because the prosecution failed to properly complete the chain of custody of the evidence. More specifically, the appellant contends that to properly develop the chain of custody, the testimony should have included Stevens’ identification of the samples introduced into evidence as those purchased from the appellant and the testimony of the department of health evidence technician concerning receipt of the samples in the mail.

To allow introduction of physical evidence, it is not necessary that every moment from the time the evidence comes into the possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come in contact with the evidence during that period. Nor is it necessary that every possibility of tampering be eliminated; it is only necessary that the trial judge, in his discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. See Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74; Wickliffe & Scott v. State, 258 Ark. 544, 527 S.W. 2d 640; Rogers v. State, 258 Ark. 314, 524 S.W. 2d 227, cert. den. 423 U.S. 995, 96 S. Ct. 423, 46 L. Ed. 2d 369 (1975).

Rystrom testified that he mailed the pills given to him by Stevens to the health department via certified mail. The certified mail numbers on the envelopes introduced into evidence corresponded with those recorded by Rystrom. The envelopes were sealed when received at the department of health and remained in a locked room until the contents were analyzed. Each envelope was resealed by the chemist who conducted the tests and remained in a vault until the time of their introduction into evidence at the trial of the appellant. The appellant has not alleged that the samples were tampered with and the circumstances of this case do not suggest any significant possibility of tampering. In such a case we will not reverse the ruling of the trial judge in the absence of an abuse of discretion.

Point III of appellant’s brief claims that it was error for the jury to be given an instruction on circumstantial evidence because the prosecution relied on direct evidence and not circumstantial evidence. Appellant apparently fails to recognize that circumstantial evidence was presented at trial. There was no direct evidence presented concerning what occurred between the time the envelopes were placed in the mail by Rystrom and when they were received by the department of health. Rather, it was from circumstantial evidence that the jury could find that the substances in the envelopes arrived in the same condition in which they were mailed, and that they were in the same condition at the time of the trial. The prosecution chose to rely on circumstantial evidence to establish that the envelopes were not tampered with while in the custody of the United States Postal Service in preference to facing the onerous burden of presenting the testimony of every employee who came in contact with the envelopes during their course of travel through the mail. Circumstantial evidence was the only practical method available to the prosecution to establish the chain of custody. In addition, the instruction given by the trial judge did not limit the jury to the consideration of circumstantial evidence in arriving at a verdict but merely stated, in part, that “[A] fact in dispute may be proved by circumstantial evidence as well as by direct evidence.” [Emphasis ours.] It was for the jury to consider all of the evidence, circumstantial as well as direct, in arriving at a verdict and that was the purpose of the instruction given.

The appellant contends in Point IV that the trial judge erred in overruling an objection to the closing argument of the prosecuting attorney. The portion of the closing argument that the appellant’s attorney objected to is as follows:

Now, Mr. Duty wanted to make something big out of Jimmy [Stevens] saying outside the Courtroom, “I don’t know anything about this” to some people of Mr. Munnerlyn’s. I think good, old common, ordinary sense can tell you why he said that. He wasn’t under oath out there, though, was he. He came in here under oath. Now, there’s fear, some scared people here, but I think the fear that was put into them was not done by the law enforcement people. I think you saw Gary Mitchell. If you noticed, he didn’t look at you, he didn’t look at me, he didn’t look at the reporter. Where did he look? Straight at the Defendant —.

Appellant says that no one testified that anyone connected with him had threatened Jim Stevens. The prosecuting attorney’s argument was, at least in part, responsive to the following argument by appellant’s attorney:

* * * I don’t think anybody is nice enough to think some pressure was not brought on Jim Stevens to go there and make a statement that he bought dope from David Munnerlyn. They picked him up, picked David Munnerlyn out. Here’s a young man on probation that didn’t even have to get mixed up and says he was forced into getting mixed up in this thing. I don’t know what force, but we do know that he said, “I may have said this out here this morning that in talking to some people and was overheard. I don’t really know a thing about this David Munnerlyn deal.” How can you believe that fellow like that when he makes a statement and admits he made it out there in the hall this morning before the trial and then comes on the witness stand and admits, I made that statement. * * * I do not know these things, but I do know and I believe somewhere along the line, down the line the fear of God was put into Stevens by someone, someplace, but he didn’t want to get mixed up in this.

The witness did testify on redirect examination as follows:

Q. Now Jimmy, could you have told somebody out there that you didn’t know anything about it?
A. I may have.
Q. Are you scared of anyone involved in this?
A. (No audible response.)
Q. Isn’t it fair to say you’re scared?
A. Yes.
Q. Is that why you would say that?
A. I guess.

Gary Mitchell testified for the state and the testimony he gave at trial was in contradiction of a statement made earlier by Mitchell in which he said that he had purchased controlled substances from the appellant on more than one occasion.

It is apparent from the quoted testimony and argument that the exertion of influence on the witnesses was placed in issue during the course of the trial. Items of evidence adduced at trial are suitable subjects for argument by the attorneys. Gibson v. State, 252 Ark. 988, 482 S.W. 2d 98. This court will not reverse the action of a trial court in matters pertaining to its controlling, supervising, and determining the propriety of, the arguments of counsel in the absence of manifest gross abuse. Rowland v. State, 263 Ark. 77, 562 S.W. 2d 590 and Perry v. State, 255 Ark. 378, 500 S.W. 2d 387. The jury was in better position than anyone else to know whether Mitchell acted as the prosecuting attorney stated. Allowing the argument of the prosecuting attorney in this case in light of the testimony presented and the jurors’ opportunity to observe the witnesses was not an abuse of the trial judge’s discretion and therefore does not constitute error. Furthermore, the trial judge, as part of Instruction No. 1, informed the jury that the arguments of the attorneys were not evidence and that “any argument, statements or remarks of attorneys having no basis in the evidence should be disregarded. ” We have previously been strongly influenced by the giving of this instruction (AMI, Civil, 101) in determining whether the trial judge has abused his discretion in respect to arguments by counsel.

We find no merit in any of the appellant’s points and affirm the judgment.

We agree.

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


text:
    Johnny Henry JONES v. STATE of Arkansas
    CR 78-170
    576 S.W. 2d 198
    Opinion delivered January 29, 1979
    (Division II)

      James P. Massie, for appellant.

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

The only error asserted in this case relates to action of the trial judge in overruling challenges for cause to two prospective jurors, both female. We find no reversible error.

The first talesman was challenged for cause when she responded to an inquiry on voir dire by appellant’s attorney. He asked whether she thought, regardless of what the law said, that the defendant would have to put on any evidence in his defense. She responded that she thought he would be wise to do so. After expressing doubt that she was disqualified, the judge asked her if she would follow the law as he gave it to her. She answered in the affirmative. The challenge was then rejected and appellant exercised a peremptory challenge.

The other talesman answered in the negative when asked if the defendant would have to testify, but in the affirmative when asked if he would have to present some evidence. After she was challenged for cause, the trial judge asked her if she believed that the defendant had to present any evidence, or to testify. She answered, “No. He doesn’t have to.” She answered in the affirmative when the judge asked if she would follow the law as he gave it to her. The judge pursued the inquiry further and established that this prospective juror knew that a defendant did not have to say anything; that if he did not take the stand, she could not draw any inference of guilt from that fact; and that the state had the burden of proving the defendant’s guilt beyond a reasonable doubt. The challenge was then rejected. Since the defendant had exhausted his peremptory challenges, this lady served as a juror.

Appellant concedes that the trial judge has considerable discretion in ruling on challenges for cause, but contends that this discretion was abused when the trial judge failed to sustain his challenges. We disagree.

The challenge was for actual bias under Ark. Stat. Ann. § 43-1919 (Repl. 1977). In order to sustain appellant’s challenge under this section, the trial judge, in the exercise of a sound discretion, must have been satisfied that there existed such a state of mind on the part of the juror that she could not try the case impartially and without prejudice to the substantial rights of the defendant. See Gammel v. State, 259 Ark. 96, 531 S.W. 2d 474; Lewis v. State, 220 Ark. 914, 251 S.W. 2d 490. We do not consider that the answers of either of these talesmen were such that we can say that the trial judge’s rulings were erroneous. Certainly we cannot say that there was any abuse of discretion.

We are not aware of any of our cases involving answers in response to the precise lines of inquiry made here. There is, however, a close analogy to cases in which a talesman, who has a preconceived opinion based upon newspaper accounts of the crime with which a defendant is charged, satisfied the trial judge that he could set aside this opinion and give the accused the benefit of all doubts to which he is entitled by law. We have taken the position that such a juror is impartial. See Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670; Rowe v. State, 224 Ark. 671, 275 S.W. 2d 887. There is also a similarity to cases in which a prospective juror states that he would tend to believe a state’s witness whom he knew to be an honest man, but would abide by the court’s instruction on credibility of witnesses and apply it to the facts presented. See Gammel v. State, supra. Likewise, we have held that there was no error in the refusal to excuse a juror who stated that his opposition to intoxicating liquor was such that it would take less evidence “on the innocence of a man” who had not been drinking than on one who had, and that he could not give a drinking defendant as fair a trial as one who had not been drinking; but, on further examination, stated that he did not know either of the defendants, that he would give them a fair and impartial trial, regardless of his prejudice against liquor, and that he would be bound only by the law and the evidence in reaching a verdict. Lewis v. State, supra. This same result has been reached even when it was known at the time of the voir dire that the defendant was a heavy drinker of intoxicating liquors and that his defense rested, in part, upon intoxication at the time of the commission of the alleged crime. Niven v. State, 190 Ark. 514, 80 S.W. 2d 644.

It is generally held that a juror, who holds a mistaken view of the law as to a defense, a particular principle of law, the burden of proof, the presumption of innocence or the weight or effect of the evidence, but is willing to abide by the law as explained or stated by the court and not by his own ideas, is not disqualified for cause. Bias v. State, 561 P. 2d 523 (Okla. Cr., 1977), cert. den. 434 U.S. 940, 98 S. Ct. 432, 54 L. Ed. 2d 300 (1977); State v. Nix, 215 Kan. 880, 529 P. 2d 147 (1974); State v. Clayton, 109 Ariz. 587, 514 P. 2d 720 (1973); State v. Dickson, 200 Iowa 17, 202 N.W. 225 (1925); State v. Sangster, 54 S.D. 391, 223 N.W. 325 (1929); State v. White, 60 Wash. 2d 551, 374 P. 2d 942 (1962), cert. den. 375 U.S. 883, 84 S. Ct. 154, 11 L. Ed. 2d 113 (1963); State v. Croney, 31 Wash. 122, 71 P. 783 (1903); State v. Parrish, 32 N.C. App. 636, 233 S.E. 2d 690 (1977); State v. Square, 257 La. 743, 244 So. 2d 200 (1971), vac. in part on other grounds, 408 U.S. 938, 92 S. Ct. 2871, 33 L. Ed. 2d 760 (1972), mand. conformed to 263 La. 291, 268 So. 2d 229 (1972); Aaron v. State, 273 Ala. 337, 139 So. 2d 309 (1962), cert. den. 371 U.S. 846, 83 S. Ct. 81, 9 L. Ed. 2d 82 (1962); State v. Jefferson, 284 So. 2d 882 (La., 1973); State v. Ransburg, 540 S.W. 2d 172 (Mo., 1976). State v. Sangster, supra, State v. Nix, supra, Bias v. State, supra and State v. Ransburg, supra, are peculiarly persuasive here, because in each of them the challenge was based upon an expression by one or more jurors of a belief or feeling that a defendant should offer some evidence either in his defense or to prove his innocence.

The rule generally applied in other jurisdictions and its application to situations very similar to those in this case are consistent and harmonious with the basis of our holdings in the Arkansas cases we have cited. We conclude that it should apply in this case and that, manifestly, there was no abuse of discretion in this case.

The judgment is affirmed.

We agree.

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


author: Conley Byrd, Justice.

text:
    Raymond BRANDENBURG et ux v. Olin BROOKS, Jr. et ux
    78-208
    576 S.W. 2d 196
    Opinion delivered January 29, 1979
    (Division I)

      Floyd G. Rogers, for appellants.

      Creekmore & Harriman, by: Marril Harriman, for appellees.
   Conley Byrd, Justice.

Appellants Raymond Brandenburg, et ux, claimed an easement by way of necessity across property owned by appellees Mr. and Mrs. Olin Brooks, Jr. At the close of appellants’ proof the trial court directed a verdict in favor of appellees.

The evidence stated most favorably to appellants, as we must do in reviewing a directed verdict, Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225 (1950), shows that appellees at one time owned the SW SW Sec. 4, T. 10 N, R 29 W. They sold the South 20 acres to their adjoining neighbors Mr. and Mrs. Pat Kelly. Mrs. Kelly testified that at the time of the purchase from the appellees they agreed that the Kellys’ would have access to the South 20 through the remaining 20 acres owned by appellees. Mrs. Kelly says there is no other access to the property with anything but a tractor. Appellant Brooks also testified that there was no access except across the North 20 of appellees. He stated that because of the natural terrain it was impossible to get to the property across any lands of the Kellys’ except by a tractor.

We recognize that there is a conflict in the authorities as to the degree of necessity required before a way of necessity may be implied. Some authorities maintain that a reasonable necessity is sufficient, but other authorities require strict or absolute necessity. In any case, it appears that a way of necessity must be more than one of mere convenience. See 25 Am. Jur. 2d Easements and Licenses § 37. Furthermore, the authorities recognize that a way of necessity over remaining lands of the grantor, created by implied grant upon the severance of land, being appurtenant to the granted land, passes by each conveyance to subsequent grantees thereof, 25 Am. Jur. 2d Easements and Licenses § 95.

When the evidence in the record is considered in the light most favorable to appellants, we must conclude that there was substantial evidence from which the trial court could have found that because of the natural terrain appellants were entitled to an easement of necessity — i.e., a reasonable necessity.

We note that appellant’s abstract of the testimony does not strictly comply with Supreme Court Rule 9(d) — not being a complete condensation or abridgment of the record. Rather than require appellants to reprint their brief, we direct the clerk to disallow any briefing costs to appellant.

Reversed and remanded.

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


text:
    Johnny HESTER et ux v. Mark L. CHAMBERS et ux
    78-213
    576 S.W.2d 195
    Opinion delivered January 29, 1979
    (Division I)

      Sam Edward Gibson, P.A., by: Sam Gibson and Kenneth V. Crow, for appellants.

      Hall, Tucker, Lovell & Alsobrook, for appellees.
   Conley Byrd, Justice.

Appellants.Johnny Hester, et ux, and appellees Mark L. Chambers, et ux, are adjoining landowners. In 1965, the Chambers bull-dozed a road right-of-way across their property and up to the boundary fence separating the adjoining properties. In 1969, the Chambers caused the county to grade the road up to the boundary fence. In 1970, the Chambers dedicated a road right-of-way which described a dedicated road as being 25 feet on either side of a described line that sometimes curved either right or left “on a radius of 75 feet.” In April 1973, appellants talked to Mark L. Chambers with reference to whether it was a county road and that they intended to build a house so as to utilize the road. Mr. Chambers at the time agreed that the county road ran up to the fence. Shortly after, in discussing the matter with his wife and his son-in-law, it was pointed out to Mr. Chambers that the dedicated road stopped ten feet short of the fence. Mr. Chambers told his wife and son-in-law that they were right but he would wait until the appellants got their house constructed before mentioning the ten feet to appellants. In August 1973, after the appellants’ house was substantially completed, Mr. Chambers wrote a letter to appellants pointing out that the dedicated road stopped ten feet short of appellants’ boundary. Appellants continued to use the road thereafter including rural mail delivery. The county made repairs to the road as needed. This action by appellees was filed in 1978.

Mr. Chambers’ son-in-law testified that he was the engineer that supplied the dedicated road description and that it stopped ten feet short of the appellants’ boundary. On cross-examination he conceded that one could not locate the appellants’ boundary by reading the dedication description. However, he pointed out on redirect that any engineer could survey the road out for purposes of determining that it stopped ten feet short of the boundary.

Based upon the foregoing facts the trial court ruled that appellants had an easement by estoppel across the ten feet, for the sole purpose of access to their home, but that the easement was personal to the appellants and could not be expanded to the public at large. Both parties have appealed with appellants contending that the trial court erred in ruling that the road was a private road rather than a public road and appellees contending a representation made through an innocent mistake is not ground for estoppel.

The rule with respect to estoppel is set forth in American Casualty Co. v. Hambleton, 233 Ark. 942, 349 S.W. 2d 664 (1961), as follows:

“A party who, by his acts, declarations or admissions, or by failure to act or speak under circumstances where he should do so, either designed or with willful disregard of interest of others, induces or misleads another to conduct or dealings which he would not have entered upon but for such misleading influence, will not be allowed, because of estoppel, afterwards to assert his right to the detriment of person so misled. Dobbins v. Martin Buick Co., 216 Ark. 861, 227 S.W. 2d 620; Williams v. Davis, 211 Ark. 725, 202 S.W. 2d 205; Rogers v. Hill, 217 Ark. 619, 232 S.W. 2d 443.”

As can be seen from the foregoing record Mr. Chambers, after representing the road to be a public road all the way to the fence line, neglected to correct his declarations until after the appellants had substantially constructed their home in reliance upon such representation. Under such circumstances, the trial court erred in refusing to say that appellees were estopped to make an assertion that the road was not a public road.

Needless to say, we find no merit to appellees’ assertion that the appellees’ representation was an innocent mistake. The record shows that after appellees became aware of the error, they permitted appellants to substantially construct their house before they made any assertions to the contrary.

Reversed and remanded for entry of a decree not inconsistent herewith.

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


text:
    Johnny Charles BROWN v. STATE of Arkansas
    CR 78-149
    Opinion delivered January 29, 1979
    (Division I)

      John W. Achor, Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Prior to the rape trial of Johnny Charles Brown, the State filed a motion in limine, seeking to prohibit any mention of prior sexual conduct between the prosecuting witness and Brown. From the trial court’s interlocutory ruling that the prior sexual contact between appellant and the prosecutrix was not relevant to Brown’s defense of consent, Brown brings this appeal pursuant to Ark. Stat. Ann. § 41-1810.2(c) (Repl. 1977).

The record reflects that the prosecutrix had known Brown for 16 years but had not seen him in three years. About one week prior to the alleged rape she had met Brown at the employment office and had asked him to stop by her apartment some time. Brown did just that and found the prosecutrix scantily clad in a nightgown during the middle of the day. It was at this time that the alleged rape occurred. On cross-examination at the pre-trial hearing, the prosecutrix testified:

“Q. How long were you all boyfriend and girlfriend?
A. Boyfriend and girlfriend. We went to bed. We were never — it was never nothing serious.
THE COURT: Talk so I can hear you.
THE WITNESS: We went to bed together maybe three years ago, maybe once or twice. I couldn’t tell you how many times. We were never serious about each other.”

The Uniform Rules of Evidence, Rule 401 provides:

“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. ”

The proffered evidence of the prior relationship of the parties as described by the prosecutrix certainly tends to make the appellant’s defense of consent more probable in view of the invitation from the prosecutrix and her mode of dress at the time she let him into her abode. Consequently, we conclude that the trial court erred in excluding the testimony.

Reversed and remanded.

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


author: Frank Holt, Justice.

text:
    Ellayne M. KNOPF v. Herbert W. KNOPF
    78-193
    576 S.W. 2d 193
    Opinion delivered January 29, 1979
    (Division II)

      Patten, Brown, Leslie & Davidson, for appellant.

      Friday, Eldredge & Clark, by: Frederick S. Ursery, for appellee.
   Frank Holt, Justice.

Appellant and appellee each sought a divorce from the other. The chancellor granted appellant the divorce although he found both parties at fault. All jointly owned property was divided or sold and the proceeds divided. Appellant was awarded $150 a month alimony.. The chancellor denied her any interest in apppellee’s railroad pensions. On appeal she first contends that the chancellor erred in the division of the property in not allocating to her a portion of appellee’s vested benefits under his two pension plans. Appellant argues that since some benefits are absolutely vested, subject only to time of payment, a present property right exists because it will eventually be paid to him or his beneficiaries or estate. Appellee is 50 years of age. He will not be entitled to receive his railroad retirement benefits until he attains the age of 65 or until an occupational disability occurs. In other words, none of the assets of the pension plans are presently available to him and will not be until he establishes retirement eligibility. It appears these pension funds are not assignable.

Although appellant insists that she is entitled to 1/3 of the presently vested portion of appellee’s pension funds in the division of their property rights, she recognizes our recent case of Fenney v. Fenney, 259 Ark. 858, 537 S.W. 2d 367 (1976), where we considered a similar issue with respect to armed forces retirement pay constituting personal property. There we said:

We do not consider the right to receive retirement pay from the armed forces to be personal property within the meaning of Ark. Stat. Ann. § 34-1214, supra. The right to a pension and retirement pay, not yet due and payable, cannot be assigned, sold, transferred, conveyed or pledged. See In re Marriage of Ellis, 538 P. 2d 1347 (Colo. App. 1975).

Even so, appellant argues that we should reconsider this decision on the question of pension funds constituting property when, as here, there is a vested right although payable in the future upon retirement, disability or death of the employee. As in Fenney we are cited to several decisions from other states which have community property laws. We adhere to our decision. See also Lowrey v. Lowrey, 260 Ark. 128, 538 S.W. 2d 36 (1976).

We do agree with appellant’s contention that the award of $150 a month alimony to her is insufficient. The amount awarded for support must, in each case, depend upon the particular facts of that case. Dean v. Dean, 222 Ark. 219, 258 S.W. 2d 54 (1953). Here the parties were married 27 years. She is 47 years of age and has worked 16 1/2 years of the marriage, contributing her earnings toward family expenses and their three children, who are now grown and married. She was awarded the majority of the parties ’ household goods and furnishings, the family car and 1/3 of appellee’s life insurance cash value. She and appellee each were awarded 1/2 of the parties’ 45 shares of Mo-Pac stock, 1/2 of three or four $75 U.S. Savings Bonds, purchased through deductions from appellee’s payroll, and 1/2 of the equity in the parties’ home, which was sold prior to the entry of the decree. Appellant suffers from hypertension, low potassium, allergies, heart irregularities, asthmatic attacks and takes daily medication. She is unable to take employment which requires her to stand on her feet and has had no job offers locally. She has a tentative offer of employment in Dallas at $575 to $625 a month. In 1975 appellant earned $7,430 — in 1976, $3,104 — and less than $500 in 1977. She itemized hpr necessary monthly expenses at $798.18. According to appellant, such items as groceries, gasoline and drugs, totaling about $230 a month, would be reduced approximately $120 when their 20 year old daughter married in a few weeks. Appellee’s gross salary in 1977 was $25,300. He receives an annual cost of living raise, which was 9% in 1977. It appears his net earnings at the time of trial were $1,585 per month and estimated living expenses were $1,465. His vested pension benefits are estimated at a minimum of $6,130. He drives a company car and has an expense account. Appellant insists she should be awarded 30% of appellee’s income.

We have not, and do not, approve a percentage of one’s income as a standard to be awarded as alimony, although we did note in Reagan v. Reagan, 255 Ark. 458, 500 S.W. 2d 754 (1973), that the award there approached 30% of the husband’s income. Here we hold that the appellant should receive an additional award of $100 per month alimony. The allowance is always subject to modification by the court upon application by either party. Pledger v. Pledger, 199 Ark. 604, 135 S.W. 2d 851 (1940).

Appellant’s attorney is awarded $500 for his services on this appeal.

Affirmed as modified.

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


author: John I. Purtle, Justice.

text:
    E. Grimsley GRAHAM v. David KANE et al
    78-176
    576 S.W. 2d 711
    Opinion delivered January 29, 1979
    (Division I)
    [Rehearing denied March 5, 1979.]

      Wright, Lindsey & Jennings, for appellant.

      Friday, Eldredge & Clark, by: Larry W. Burks, for appellees.

      Harvey L. Bell, Securities Commissioner, for State of Arkansas, amicus curiae.
   John I. Purtle, Justice.

This case involves the sale of two units of a limited partnership in a project known as the Walker Springs, which is located in Knoxville, Tennessee. The appellee was a broker and dealer in securities in several states, including Arkansas. The Walker Springs project was not registered with the Securities Department in Arkansas or Tennessee; neither had there been an exemption from registration or a request for such exemption. In the latter part of 1973, the appellant purchased these units and at that time was furnished material which clearly and unequivocally stated that the units were not registered with the Securities Department under the Arkansas Securities Act. There was a suggestion in the material furnished to the appellant that he might discuss the matter with his accountant and attorney. Much of the material was mailed to the purchaser subsequent to the agreement to purchase these two units.

The primary purpose of the appellant in making the purchase was for a tax shelter, or, in other words, to reduce the amount of taxes he would have to pay. Also, he expected to receive a cash flow after the first few years of the existence of the project. The project was slow in developing, thereby creating a cost over-run and an assessment to the partners for additional amounts of money in order to complete the project.

Sometime in 1976, the appellant became dissatisfied with the performance of his investment and determined that the securities had not been exempted under the Arkansas Securities Act. Thereupon, he tendered his two shares and demanded the appellee return the full purchase price. Appellant had filed federal and state income taxes for 1973, 1974 and 1975 in which he listed deductions resulting in tax savings of $30,147. Had he carried the tax savings plan through 1976, it was projected that his total tax savings would have been $56,838. He did not claim the deduction for 1976 and amended his 1973 return in which he had saved $5,-537 in taxes, which left a net tax savings received by appellant at the time of the trial of $24,600. His demand for cancellation included return of the $36,544, which he had paid for the units up until that time.

The trial court, in a well considered and no doubt agonizing opinion, carefully pointed out that there were no issues of fraud or misrepresentation involved on the part of anyone in the law suit. In fact, the trial court pointed out that the appellee had gone to the trouble of checking with the Securities Commission for the State of Arkansas prior to setting up this limited partnership and determined, in his own opinion, that this transaction was not considered a security. He relied upon the opinion of an attorney for the Securities Department.

Nevertheless, the court found that the units in the Walker Springs limited partnership purchased by the appellant were securities or investment contracts as those terms are used in Ark. Stat. Ann. § 67-1247(1) (Repl. 1966). He further held that the units concerned herein were not exempt from registration under the requirements imposed by Ark. Stat. Ann. § 67-1241 (Repl. 1966). We agree with the trial court on these findings.

The trial court placed great emphasis on the opinion of this Court in Schultz v. Rector-Phillips Morse, Inc., 261 Ark. 769, 552 S.W. 2d 4 (1977). The trial court quoted from Schultz as follows:

“It was never intended that the securities law be used as a tool of sophisticated investors to invest in projects or promotional schemes and reap the tax benefits accruing from such ownership and then have the option several years later to determine whether they want to retain the investments or get their money back with interest while presumably retaining the tax benefits.”

We agree with the statement of the trial court as previously set out in Schultz. However, neither was it the intent of the Arkansas Securities Act to allow the law to be used by sophisticated brokers and dealers for promotional projects thereby reaping consultant benefits, sales commissions, and other benefits, without fully complying with the requirements of the law which in this case is set forth in Ark. Stat. Ann. § 67-1256(a) (Repl. 1966), as follows:

“(a) Any person who
(1) offers or sells a security in violation of Section ... 7 .. . (§ 67-1241)
(2) . . . is liable to the person buying the security from him, who may sue either at law or in equity to recover the consideration paid for the security, together with thé interest at six per cent [6%] per year from the date of payment, costs, and reasonable attorneys’ fees, less the amount of any income received on the security, upon the tender of the security and any income received on it, or for damages if he no longer owns the security. ...”

The General Assembly has thus adopted the doctrine of caveat venditor for sellers of securities. It is strict responsibility but not necessarily strict liability.

In this case the equity does not preponderate to any great degree in favor of either side. Therefore, it resolves to the question of interpreting the statute as intended by the General Assembly. The trial court found that the appellant was a man of more than ordinary intelligence. The court further found that Dr. Graham had invested in other real estate holdings and had some dealings in stocks and bonds. We must keep in mind that the Securities Act was passed by the General Assembly primarily for the purpose of protecting members of the public who might invest in offerings by promoters of such securities as we have here.

It is interesting that the trial court, appellant, appellee and this Court rely heavily upon the Schultz case. The distinction between the two cases is primarily factual. In Schultz, the purchasers were “sophisticated” dealers in securities and presumably had superior knowledge to that possessed by the seller in that case who was well versed in matters concerning real estate but was not shown to have had any particular training or ability in securities. In the instant case, the appellee has vast knowledge and deals at great length in matters governed by the various security acts. Appellee clearly possessed the greater degree of knowledge in the securities field than did appellant who was himself more learned and experienced, and perhaps more intelligent, than the average person. Schultz established that the doctrine of laches, estoppel, and waiver may apply as a defense available to an action of this nature. These matters were argued vigorously in the court below. The case was fully developed except for the last portion of Ark. Stat. Ann. § 67-1256(a)(2) (Repl. 1966), which states:

“. . . less the amount of any income received on a security, upon the tender of the security and any income received on it, or for damages if he no longer owns the security. ...”

Keeping in mind the intent of the Genera! Assembly, we feel that, although there is no fraud, misrepresentation, or scienter, involved in this case, it must nevertheless be reversed. The benefits accruing to the public by this holding, in protecting them from illegal sales, will no doubt outweigh the inequities, if any, which might exist in this particular case.

Reversed and remanded.

We agree.

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


text:
    Robert Lee RAWLS v. STATE of Arkansas
    CR 78-121
    581 S.W. 2d 311
    Substituted Opinion on Denial of Rehearing delivered March 19, 1979
    (In Banc)

      Harold L. Hall, for appellant.

      Bill Clinton, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

On March 23, 1978, appellant appeared in open court with his appointed counsel (public defender) and entered a plea of nolo contendere. He executed a plea statement wherein he affirmed his understanding of the nature of the charges against him, the possible penalties, and that he waived the right to a jury trial. The record shows the court adequately informed him of the full consequences of such plea and, in fact, stated it amounted to a plea of guilty.

At no time did appellant allege he was innocent. In fact, he apparently freely admitted he had committed rape and battery in the first degree. The prosecuting witness appeared and confirmed that appellant had raped her and committed battery in the first degree upon her. Appellant was committed to the Arkansas Department of Corrections this same day.

On April 17,1978, appellant filed a Motion to Withdraw Plea of Nolo Contendere. The prosecuting attorney responded on April 19, 1978, and on the same day the court entered an order overruling the motion. It certainly cannot be said there was any undue delay in processing the motion to withdraw plea. The order was made from the record already on file with the court.

Appellant’s motion was made pursuant to Rules of Crim. Proc., Rule 26.1 (1976):

(a) The court shall allow a defendant to withdraw his plea of guilty or nolo contendere upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.
(b) A motion to withdraw a plea of guilty or nolo contendere to correct a manifest injustice is timely if, upon consideration of the nature of the allegations of the motion, the court determines that it is made with due diligence. Such motion is not barred because it is made after the entry of judgment upon the plea. If the defendant is allowed to withdraw his plea after the judgment has been entered, the court shall set aside the judgment and the plea.
(c) Withdrawal of a plea of guilty or nolo contendere shall be deemed to be necessary to correct a manifest injustice if the defendant proves to the satisfaction of the court that:
(i) he was denied the effective assistance of counsel;
(ii) the plea was not entered or ratified by the defendant or a person authorized to do so in his behalf;
(iii) the plea was involuntary, or was entered without knowledge of the nature of the charge or that the sentence imposed could be imposed;
(iv) he did not receive the charge or sentence concessions contemplated by a plea agreement and the prosecuting attorney failed to seek or not to oppose the concessions as promised in the plea agreement; or
(v) he did not receive the charge or sentence concessions contemplated by a plea agreement in which the trial judge had indicated his concurrence and he did not affirm his plea after receiving advice that the judge had withdrawn his indicated concurrence and after an opportunity to either affirm or withdraw the plea.
(d) The defendant may move to withdraw his plea of guilty or nolo contendere to correct a manifest injustice without alleging that he is innocent of the charge to which the plea was entered.
(e) In the absence of proof that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw his plea of guilty or nolo contendere as a matter of right after it has been accepted by the court. At any time before sentence, the court in its discretion may allow the defendant to withdraw his plea if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of his motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant’s plea.

Appellant’s motion for relief is simply that the court denied his motion without making written findings and specifying the parts of the record, or file, relied upon for such ruling. In support of his motion, appellant relies upon Robinson & Williams v. State, 264 Ark. 186, 569 S.W. 2d 662 (1978). The above-cited case was a motion pursuant to Rule 37.3(a) and, indeed, does require the written findings as suggested. However, Rule 26.1 does not contain such requirement. Although both Rules are in the nature of post-conviction relief, they serve two different purposes. Rule 37 relates to “Other Post-Conviction Proceedings and Relief.” Rule 26 relates only to “Plea Withdrawal.” Rule 37 is essentially former Rule 1 and is designed to attack constitutionality, lack of jurisdiction, excess of authorized sentences and sentences otherwise subject to collateral attack. Rule 26.1 is designed for the purpose of allowing a correction of a “manifest injustice.” A motion pursuant to Rule 26.1 must be made prior to sentencing. Shipman v. State, 261 Ark. 559, 550 S.W. 2d 424 (1977). Therefore, this motion must be considered pursuant to Rule 37.3(a) as it was not timely under Rule 26.1.

The fact that appellant hoped for, or even expected, a lighter sentence than he received is not grounds to allow the plea to be withdrawn. Cross v. State, 258 Ark. 553, 452 S.W. 2d 854 (1970). Appellant cites Robinson & Williams v. State, supra, as grounds for reversal in the present case. Robinson was filed as a Rule 37.3(a) motion and considered as such. We reversed the trial court there because there were no written findings of fact and the court did not specify the parts of the file and records relied upon. We have held that written findings must be made whenever an evidentiary hearing is held. Orman v. Bishop, 243 Ark. 609, 420 S.W. 2d 908 (1967); Fuller v. State, 256 Ark. 133, 505 S.W. 2d 755 (1974).

We have also considered motions pursuant to Rule 37.3(a) wherein we did not reverse even though there were no written findings of fact or parts of the file or record designated by the court. We did so upon the theory that the record showed conclusively that the motion was without merit, the latest case being that of Simmons v. State, CR 78-173, decided on March 5, 1979 [265 Ark. 48, 578 S.W. 2d 12] in which case many other citations are included.

We are considering this case as a Rule 37.3(a) case in spite of its designation as Rule 26.1 because the allegations, or some of them, are cognizable under Rule 37.3(a) and because it was not timely filed to be considered pursuant to Rule 26.1. The order denying appellant relief in this case is stated as follows:

On this date this cause comes on for hearing on motion of defendant, and from the motion, the response thereto, and from the files and records of the court; the court being well and sufficiently advised finds that defendant’s contentions are without merit and defendant’s motion is hereby denied.

Obviously it does not make findings of fact, nor designate the parts of the file or record relief upon. The order does state the matter came on for hearing on April 20, 1978, but the record of the hearing, if one was held, is not in the transcript nor has it been furnished otherwise.

The entire record has been furnished to this Court, and we are able to determine from the record that it conclusively demonstrates that the motion is without merit. However, we would have been unable to do so based solely upon the order of the court because it failed to make written findings of fact specifying the parts of the files or records that are relied upon to sustain the court’s findings, as required by Rules of Crim. Proc., Rule 37.3(a).

Affirmed.


author: PER CURIAM

text:
    Charles Edward MARSHALL v. STATE of Arkansas
    CR 78-199
    January 29, 1979
   PER CURIAM

Appellant’s motion for consideration of the record on a prior appeal in this case is granted even though it is a useless motion. Rule 9 (d) of the rules of this court clearly provides: “On a second or subsequent appeal, the abstract shall include a condensation of all pertinent portions of the record filed on any prior appeal.”

The purpose of the entry of this order is to call the attention of the bar to the fact that such motions are unnecessary.

Printer’s Note: The opinion on consideration of this case appears in 265 Ark. 302, 578 S.W. 2d 32.


text:
    Margaret POUNDERS v. TRINITY COURT NURSING HOME, INC. et al
    78-198
    576 S.W. 2d 934
    Opinion delivered February 5, 1979
    (In Banc)

      Lasler & Lane, Ltd., for appellant.

      Gannaway, Darrow & Hanshaw, for appellees.
   George Rose Smith, Justice.

The appellant, Margaret Pounders, aged 75, a widow, brought suit for false imprisonment against the two appellees, Trinity Court Nursing Home and Gloria Gaines, who is a niece of Mrs. Pounders’s late husband. At the close of a jury trial the judge directed a verdict in favor of both defendants. The only question is whether there is any substantial evidence presenting a prima facie case of false imprisonment. We find no such evidence in the record.

We state the facts in the light most favorable to Mrs. Pounders. For some time she had lived with Mr. and Mrs. Gaines, who, in Mrs. Pounders’s words, were wonderful to her. Mr. Gaines, however, became dissatisfied with the arrangement and directed that Mrs. Pounders be placed in a nursing home. Mrs. Pounders did not own a place of her own.

On July 14, 1976, Mrs. Gaines took Mrs. Pounders to Trinity Court, a nursing home occupying a two-story building in Little Rock. Mrs. Pounders, understandably, did not want to enter a nursing home, but she testified that she went without protest. There is no imprisonment when one agrees to surrender her freedom of motion. Faulkinbury v. U.S. Fire Ins. Co., 247 Ark. 70, 444 S.W. 2d 254 (1969). Mrs. Gaines’s commitment of her aunt to the nursing home obviously did not amount to false imprisonment, because no force or threats were used, and there was actually consent.

Mrs. Pounders remained in the nursing home for two months. She testified that she was not allowed to have any visitors (except, apparently, Mrs. Gaines), that she was not allowed to use the telephone, and that she was not allowed to write to anyone. Her room was on the second floor. There was a nearby stairway by which she could have left the building any time, she wanted to. Her reason for not leaving was that the nursing home had her shoes, and she did not want to go out in bedroom slippers. She also said that one of the aides (unidentified and not shown to have had any authority to speak for the nursing home) told her that if she tried to run away, “they’d get you before you’d get anywhere and they would just bring you back.” Mrs. Pounders admits that Mrs. Gaines visited her once or twice a week. She does not say that she ever spoke to Mrs. Gaines about the possibility of going somewhere else.

Again, there was obviously no false imprisonment during Mrs. Pounders’s stay at Trinity Court. To make a defendant liable for false imprisonment, the plaintiff’s confinement within bourn, aries fixed by the defendant must be complete. Restatement of the Law, Torts (2d), § 36 (1965). Here there is no evidence whatever either of physical force or of any threat of physical force. To the contrary, Mrs. Pounders could have left the nursing home at will, but she simply had now'here to go and chose to stay.

Finally, there remain the events that led to her departure. Mrs. Pounders sent word to Laura Fulmer, the wife of a nephew' of Mrs. Pounders’s husband, that she wanted to leave the nursing home. Mrs. Fulmer testified that she telephoned Trinity Court to ask about visiting hours and was told that Mrs. Pounders w'as not allowed to have any visitors. On the afternoon of July 13 Mrs. Fulmer went to the nursing home and had no difficulty in going up to the second floor and visiting w'ith Mrs. Pounders in her room. She then went dowmstairs to the office and talked to Mrs. Brummett, the w'ife of the manager. When Mrs. Fulmer explained that she w'as Mrs. Pounders’s niece by marriage and wanted Mrs. Pounders to come live with her, Mrs. Brummett said that no one could get her out but Mrs. Gaines. No effort was ever made to get Mrs. Gaines’s consent to the release, and there is no indication that she would not have agreed. Mrs. Brummett’s statement certainly did not amount to the physical restraint that constitutes false imprisonment.

Mrs. Fulmer w'ent directly from Trinity Court to a lawyer, J. H. Berry. Berry testified that, “as I told Mrs. Fulmer, I w'anted to get some idea whether I feit that [Mrs. Pounders] w'as really able to make her own decision. And also, I wanted to see, to ascertain myself, w'hether she wanted to go or stay.” Berry w'ent to the nursing home and, with no difficulty, went upstairs to Mrs. Pounders’s room and talked with her for some time. He was satisfied that she was in full possession of her faculties and w'anted to leave.

Berry then went downstairs to see the manager, Mr. Brummett. Berry explained in his testimony just what happened:

A. . .. Mr. Brummett came in very shortly and told me that it was their custom that the people in the nursing home be released only to those who brought them in, and I told him that, in my opinion, since she wanted to leave, that they had no right to hold her. I also told him that if she wasn’t released, well, we would have no alternative but to apply for a writ of habeas corpus.
Q. The purpose of which is what?
A. The purpose of which is to determine whether there is a legal basis for holding someone. And which, if it had been successful, would have brought about her release.
Q. What was Mr. Brummett’s response to this statement?
A. Well, of course, Mr. Brummett was very courteous throughout. He said, Well I will talk with — and he — I can’t remember who specifically he said he would talk with, but he said he would talk with one of the nieces of Mrs. Pounders, who had brought her there and see if it w'ould be all right. And he tried to call. I can’t remember whether he called one or made one or tw'o attempts to call one or two different people. But, when he couldn’t locate them, he said, “Well, I’ll tell you what I’m going to do, I’m just going to go ahead and release her.” And he did immediately. He said she could go any time someone came to pick her up. Of course, I myself wanted someone to pick her up, you know, some member of the family. And Mrs. Fulmer had always said to let her know and she would come and get her. So, I notified Mrs. Fulmer and assume she was immediately released to Mrs. Fulmer.

Mrs. Pounders in fact left with Mrs. Fulmer and was living with the Fulmers at the time of the trial.

Again, it is obvious that there was no false imprisonment in its proper sense of compulsory physical confinement. The nursing home’s rule that a patient be released to the person w'ho arranged for her admission certainly does not amount to false imprisonment. That Berry saw fit to suggest the possibility of an application for a writ of habeas corpus did not somehow' have the effect of physically imprisoning Mrs. Pounders, w'ho was upstairs in her room and could have w'alked out by herself if she had chosen to do so. We agree w'ith the trial judge’s conclusion that there was no substantial evidence of false imprisonment either by Trinity Court or by Mrs. Gaines.

Affirmed.

Byrd and Purtle, JJ., dissent.

John I. Purtle, Justice,

dissenting. This is a very close question and no doubt of little consequence to anyone other than Margaret Pounders. She is a 75 year old disabled widow w'ho w'as relegated to the confines of a nursing home against her w'ishes. As it is w'ith a large number of our senior citizens, she dreaded the thought of being placed in a nursing home. Appellant had been living with Gloria Gaines and her husband until one day Harold Gaines told Gloria Gaines when he returned from w'ork he wanted her to have appellant out of the house. Appellee Gloria Gaines found a room at Trinity Court Nursing Home, Inc., the other appellee in this action, and made arrangements to move appellant to the nursing home that same day, July 14, 1976. Appellee Gaines signed appellant Pounders into Trinity, where she remained until September 14, 1976.

There is much testimony concerning the shabby treatment appellant received and even more evidence on the excellent care and treatment she received during her two-month stay in the facility. Which version is true, if either, is beside the question for the purpose of this opinion. In order to reach the point of w'hether the appellant was falsely imprisoned, we must necessarily look at some of the facts. At some point in time, Laura Fulmer, a relative by marriage, found that appellant w'as staying at Trinity and proceeded to try to get the appellee (Trinity) to release Mrs. Pounders to her care as she intended to take her into her home to live. Trinity rejected the request of Mrs. Fulmer and informed her it was the policy of Trinity to release residents of the home only to the party who entered them into the facility. Mrs. Fulmer finally consulted attorney J. Harrod Berry about getting Mrs. Pounders released to Mrs. Fulmer. The following day, Mr. Berry called Mr. Brummett at Trinity and told him he felt Mrs. Pounders had a right to leave the home if she was able to leave, especially if she appeared competent. He finally stated that, in his opinion, appellant was entitled to be released, period. Brummett again explained to the lawyer that it was the practice of the facility not to release a resident to anyone without the approval of the party who brought them to the nursing home. Mr. Berry then talked with appellant in person in the nursing home and understood clearly she wanted to leave the place. Mr. Berry felt she was in full possession of her faculties. Again he went to see Mr. Brummett, who still refused to release Mrs. Pounders without the approval of Mrs. Gaines. After the attorney threatened to file a petition for a writ of habeas corpus, Trinity decided to release appellant. She was released to Mrs. Fulmer on the same date, after Mrs. Gaines came and approved it. There is little, if any, dispute on the above-stated facts.

It should be noted that the appellant had not been adjudicated as an incompetent, nor had a guardian been appointed for her. In other words, all the activities involved in this matter were outside the judicial process. Those parties were as encumbered or unencumbered from the law as the other free citizens of the state.

Ark. Stat. Ann. § 41-1704(1 )(Repl. 1977) states:

“ (1) A person commits the offense of false imprisonment in the second degree if, without consent, and without lawful authority, he knowingly restrains another person so as to interfere substantially with his liberty.”

This, of course, was not a criminal proceeding. However, it is an accurate description of what constitutes false imprisonment. In false imprisonment cases the primary right involved is the liberty of the citizen, which is guaranteed by the state and federal Constitution. Except for prohibition by law, a person is free to come and go, or stay, if he/she is not violating the rights of others. Mrs. Pounders was entitled to be free from restraint and to leave the nursing home if she chose to do so. There was no legal right for either of the appellees to restrain the appellant against her will. Imprisonment has been defined in Watkins v. Oaklawn Jockey Club, 86 Fed. Supp. 1006, and quoted with approval in Pettyjohn v. Smith, et al, 255 Ark. 780, 502 S.W. 2d 618 (1973) as:

“Every confinement of the person is an imprisonment, and any express or implied threat or force whereby one is deprived of his liberty or compelled to go where he does not wish to go is an imprisonment.”

In other jurisdictions, Griffin v. Clark, 42 P. 2d 297, the Idaho Supreme Court stated:

“In false imprisonment or unlawful restraint, the primary right involved is the liberty of the citizen; the right of freedom of locomotion; the right to come and go or stay, when or where one may choose . . . There need be no actual force or threats, nor injury done to the individual’s person, character, or reputation. Neither is it necessary that the wrongful act be committed with malice or ill will, or even with the slightest wrongful intention. . .”

If appellant was prevented against her will from going from the Trinity Court Nursing Home, Inc. at any time she so desired, she was falsely imprisoned. There was ample evidence in the record from which the jury could have found she was prevented from leaving the home at the time she wanted to leave. It may have been for only a few hours duration but, is, nevertheless, detention against her will, if her testimony is believed.

The court in this case gave the following as the definition of what constitutes false imprisonment:

“False imprisonment means to be in custody against your will, to have restraints, such as chains, handcuffs, locked doors, barriers or keeping someone behind walls or within the premises, under a hidden identity or things of that nature. And in this case, there is absolutely no evidence of forced coercion, threats of any kind made to this lady to keep her there.”

The trial court limited the definition of false imprisonment to the extent that, if correct, it was proper to dismiss the complaint as to both appellees. However, the definition of false imprisonment is not so limited as stated, and the evidence as to Trinity was sufficient to go to the jury. The evidence as to Gloria Gaines was insufficient to go to the jury even under the more liberal interpretation and the trial court was correct in directing a verdict in favor of appellee Gloria Gaines.

On numerous occasions this Court has decided the question as to when a directed verdict is proper. These cases all hold to the effect that, when considering whether to direct a verdict for the defendant, the evidence must be considered in the light most favorable to the plaintiff and if there is any substantial evidence on which the jury could base a finding of negligence on the part of the defendant, the verdict should not be directed. Garrett v. A.P. & L., 218 Ark. 575, 237 S.W. 2d 895 (1951). A directed verdict should be granted for the same reasons a summary judgment should be granted. A summary judgment should not be granted if it is inconsistent with any reasonable hypothesis which might reasonably be drawn from the proper evidence before the court. Betnam v. Ross, 259 Ark. 820, 536 S.W. 2d 719 (1976).

For these reasons, the case should be affirmed as to Gloria Gaines and reversed and remanded as to Trinity Court Nursing Home, Inc.

Byrd, J., joins in the dissent.


author: George Rose Smith, Justice.

text:
    Eddie and Patricia JOHNSON v. SAFECO INSURANCE COMPANY OF AMERICA
    78-199
    576 S.W. 2d 220
    Opinion delivered February 5, 1979
    (Division I)

      Joseph A. Madey, for appellants.

      Friday, Eldredge & Clark, for appellee..
   George Rose Smith, Justice.

This case is similar to another recent case in that the complaint seeks to assert the tort of bad faith. Findley v. Time Ins. Co., 264 Ark. 647, 573 S.W. 2d 908 (1978). Here the trial court sustained a demurrer to the complaint (except for a consent judgment for $300) and dismissed the action, on the ground that the complaint failed to state facts constituting a cause of action. We affirm.

The complaint alleges that in March, 1975, the plaintiffs signed an offer for the purchase of a house and paid $400 as earnest money. The offer was not accepted, but the real estate broker and his salesman wrongfully refused to return the earnest money, except for a refund of $100. The salesman’s license as a real estate agent was later revoked by the Arkansas Real Estate Commission, and the broker’s license was suspended.

The complaint further alleges that the defendant, Safe-co Insurance Company, was the surety upon the statutory bond filed by the broker. Ark. Stat. Ann. § 71-1305 (Supp. 1977). (Under the statute the bond is for $2,000 and is to protect persons doing business with licensed real estate brokers and salesmen.) It is asserted that over a period of more than 2 1 /2 years Safeco, in bad faith, failed to adequately investigate the plaintiffs’ claim and failed to pay the $300 that w'as due. The complaint alleges as damages unspecified economic losses, embarrassment and humiliation, and physical, mental and emotional distress. The prayer is for $25,000 as compensatory damages and $100,000 as punitive damages.

As in Findley, the allegation of “bad faith” is a conclusion of law' referring only to the defendant’s failure to adequately investigate the claim and its failure to pay the claim. There is no allegation of affirmative wrongdoing on the part of the defendant. Consequently, for the reasons stated in Findley, the complaint is demurrable.

Furthermore, Safeco’s position is even stronger than that of the insurance company in Findley, for Safeco was merely a surety upon the broker’s bond, not an insurance company issuing a policy directly to the plaintiffs and receiving its premiums from them. If a surety should pay a claim when there is no liability on the part of its principal, it is treated as a volunteer and cannot recover the payment from the principal. Fireman’s Fund Ins. Co. v. Clark, 253 Ark. 1025, 490 S.W. 2d 447 (1973). Another possible defense, in addition to any that might be raised by the principal, could be that the $2,-000 maximum liability under the bond had been discharged in the payment of other claims or had to be prorated among various claimants. Thus the mere allegation that the broker and the salesman failed to return the plaintiffs’ earnest money does not necessarily state a cause of action against the surety.

Affirmed.

We agree. Harris, C.J., and Byrd and Purtle, JJ.


text:
    Carla MIDDLETON v. ARKANSAS EMPLOYMENT SECURITY DIVISION
    78-211
    576 S.W. 2d 218
    Opinion delivered February 5, 1979
    (In Banc)

      Legal Aid Bureau of Central Arkaiu , by: Ralph Washington, for appellant.

      Thelma M. Lorenzo, for appellee.
   George Rose Smith, Justice.

This is an application by the appellant for unemployment compensation. The claim was denied by the local office on the ground that Ms. Middleton had voluntarily quit her job. That decision was affirmed by the Appeal Tribunal, the Board of Review, and the circuit court. As we view the case, the only question is whether the administrative finding is supported by substantial evidence.

The claimant was employed as a draftsman by AFCO Steel. She testified that on March 15, 1977, she asked for a raise in pay, which was refused on the grounds that the company was not doing well and that she was not worth more money. She told her supervisor that she would continue to work but that she would look for another job on her lunch hour. The next day she was told that she could not seek another job while she was working for the company. She accepted her wages to date, plus two weeks’ severance pay, and left the company. A company witness testified that “it is better from a company’s viewpoint that if a person is dissatisfied with the company and does want to find another job then it is better, we go ahead . . . and pay them for two extra weeks and let them, you know, find it on their own if they can.” Upon the testimony the Appeals Tribunal made this finding of fact:

The claimant quit her job with the above employer March 16, 1977, after she had requested a raise in pay. She was informed that the employer did not wish to grant her a raise in pay. She felt there was no future for her with this company, and informed the employer that she would be seeking other employment. She advised him she would do this during her off hours or during the noon hour. The employer accelerated the separation date by accepting the claimant’s resignation at that time.

The Employment Security Act provides that an individual shall be disqualified for benefits “[i]f he voluntarily and without good cause connected with the work, left his last work.” Ark. Stat. Ann. § 81-1106 (a) (Supp. 1977). The preamble to the statute refers to involuntary unemployment and to persons unemployed through no fault of their own. § 81-1101 (Repl. 1976).

Upon the testimony we think it was a disputed question of fact whether the claimant voluntarily left her job or was discharged. Even though the claimant did not say flatly, “I quit,” the trier of fact could find that she said, in effect, “I’m quitting as soon as I am able to find another job.” The Appeal Tribunal’s specific finding that the employer accepted the claimant’s resignation implies that the claimant acted voluntarily in deciding to take the proffered separation pay and look for work elsewhere.

The Vanderbilt Law Review for February, 1955, had a symposium on unemployment insurance. We quote this statement from one of the articles, Sanders, Disqualification For Unemployment Insurance, 8 Vanderbilt L. Rev. 307, 317:

Although “voluntary leaving” literally means giving up work of one’s own volition or will, the scope of the phrase has been extended to include voluntary action indicating an intention to terminate employment, notwithstanding that the immediate cause of separation was discharge or replacement.

in the case at bar the impetus leading to the separation certainly came from the employee, not from the employer. Upon the testimony reasonable persons may differ about whether the claimant’s departure from her job was voluntary or involuntary. That being true, there is substantial evidence to support the administrative decision, which concludes our inquiry.

Affirmed.

Hickman, J. and Purtle, J., dissent.

John I. Purtle, Justice,

dissenting. The majority has again displayed clairvoyant powers which I, as of this date, have been unable to achieve. They have held that appellant voluntarily left her work without good cause. The first thing we should do is look at the facts.

Appellant had been employed for the appellee for almost four years when she approached the appellee, her employer, on March 15, 1977, and requested a raise because she was making a salary different from the other employees and stated she needed more money. Appellee denied her request for a wage increase and thereupon she informed appellee that she would begin to look for a new job on her off-hours and during her lunch break. She specifically stated she wanted to continue to work while she sought new employment. The next afternoon, March 16, 1977, appellant was informed by appellee that she could not search for a new job while employed by them. Her contract of employment was terminated and she was given two weeks severance pay.

Appellant made claim for unemployment benefits, and the Arkansas Employment Security Division denied her claim on the grounds that she had voluntarily left her last employment without good cause.

Ark. Stat. Ann. § 81-1106 states:

Disqualification for benefits. — For all claims filed on and after July 1, 1973, if so found by the Director an individual shall be disqualified for benefits:
(a) Voluntarily leaving work. If he voluntarily and without good cause connected with the work, left his last work, such disqualification shall continue until, subsequent to filing his claim, he had had at least thirty (30) days of covered employment.
Provided no individual shall be disqualified under this subsection if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification. . .

Disqualification, under this statute, is conditioned upon the employee voluntarily and without good cause connected with the work leaving the employment. It is true appellant expressed dissatisfaction with her wages and indicated she intended to look elsewhere for a better paying job. So far as I have been able to determine, there is no statutory prohibition against looking for another job. It may be true that her employment would have developed into an unsatisfactory relationship and she could have subsequently been fired for cause in such event; however, if we are going to speculate, as the majority do, we might as well speculate that she would have cooled down, changed her mind, and continued the job which she had held for almost four years. There is no evidence that her work had been unsatisfactory up until this time.

The majority in this case simply fail to construe the law in accordance with its plain meaning and go so far as to penalize appellant for being honest and truthful with her employer. The very foundation and purpose of the Act is to allow a person, who is discharged without good cause connected with the work, to be able to draw a meager subsistence while seeking other employment. Appellant has been denied that right in this case.

In my opinion, the majority clearly disregards the plain meaning of the words and the intent of this statute. Therefore, I would reverse and remand with directions to allow appellant to collect her unemployment benefits.

Hickman, J., joins in the dissent.


text:
    MOHAWK RUBBER COMPANY et al v. Jerry THOMPSON
    78-232
    576 S.W. 2d 216
    Opinion delivered February 5, 1979
    (In Banc)

      Wright, Lindsey & Jennings, for appellants.

      Toungdahl, Larrison & Agee, for appellee.
   George Rose Smith, Justice.

This is a worker’s compensation case, turning upon the statute of limitations. On August 31, 1971, the claimant sustained a work-connected injury to his foot. Various benefits were paid until the original claim was terminated by a lump sum settlement on June 2, 1972, the claimant having returned to work. In early 1975 the claimant elected to undergo surgery on his foot for the relief of pain. There was no new injury or aggravation of the original condition, but it is conceded that the need for surgery arose out of the original injury.

When the claimant informed his employer of his plan to undergo surgery he was told that benefits under the worker’s compensation law were barred by limitations, but the operation would be paid for under a sickness and accident policy covering employees. After the surgery the claimant filed the present claim, on May 27, 1975, for the cost of the surgery and for temporary and permanent disability benefits. The Commission, whose decision was affirmed by the circuit court, held that the claim was not barred by limitations, because within a year the insurance carrier had furnished orthopedic shoes to the claimant. The Commission recognized that the furnishing of such shoes would not revive a claim already barred, but the Commission held that the running of the statute had been interrupted as to a claim for additional compensation. We are unable to agree with the Commission’s reasoning.

Here is the chronological sequence of the events that are pertinent to the question before us:

August 31, 1971: Claimant’s foot was injured.
August 24, 1972: Expiration of the temporary and permanent benefits paid in the lump sum settlement.
August 10, 1973: (1) Claimant was seen by Dr. Chakales and released from treatment. (2) Claimant was furnished with orthopedic shoes.
November 8, 1973: Carrier paid for the shoes.
December 13, 1973: Carrier paid Dr. Chakales.
August 28, 1974: Claimant was furnished with a second pair of orthopedic shoes.
January 23, 1975: Carrier paid for the second pair.
May 27, 1975: Present claim for additional benefits was filed.

It is obvious that when the statute is tolled by the actual furnishing of services, such as medical treatment or orthopedic shoes, the statute is not tolled again when the services are paid for. One transaction cannot interrupt the statute twice. That was essentially our holding in Heflin v. Pepsi Cola Bottling Co., 244 Ark. 195, 424 S.W. 2d 365 (1968), where we said: “The decision is not in any respect based on the time at which the medical bills were paid. This holding is sound because the claimant is ‘compensated’ by the furnishing of the services and not by the payment of the charges therefor.”

When mere payments for previous services are disregarded, it will be seen from the above sequence that there was no interruption of the statute between August 10, 1973, and August 28, 1974. Thus both the two-year statute from the date of the injury and the one-year statute from the last payment of compensation had run when the claimant was furnished a second pair of shoes on August 28, 1974. The Commission held, however, that the furnishing of the second pair again tolled the statute, so that an additional claim arising out of the original injury was not barred. The Commission cited Ragon v. Great American Indemnity Co., 224 Ark. 387, 273 S.W. 2d 524 (1954), where we quoted the statutory definition of compensation, which includes the medical and orthopedic allowances enumerated in § 11 of the act. Ark. Stat. Ann. §§ 81-1302 (i) and -1311 (Repl. 1976).

The Commission failed, in our opinion, to give correct significance to a 1968 initiated act that added a second sentence to § 18 (b) of the act, which now reads:

(b) Additional Compensation. In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one year from the date of the last payment of compensation, or two years from the date of the injury, whichever is greater. The time limitations of this subsection shall not apply to claims for replacement of medicine, crutches, artificial limbs and other apparatus permanently or indefinitely required as the result of a compensable injury, where the employer or carrier previously furnished such medical supplies. [Ark. Stat. Ann. § 81-1318 (b).]

The manifest purpose of the 1968 amendment was to extend the statute with respect to an employee’s right to obtain the replacement of medicine, crutches, artificial limbs, and other apparatus that would be permanently or indefinitely required as a result of the original compensable injury. This case illustrates the beneficent purpose of the amendment, for without it this claimant would not have been able to obtain a second free pair of orthopedic shoes on August 28, 1974, because both the two-year and the one-year statutes had already run. Thus the new sentence is actually an exception to the basic rule of limitations. The exception cannot fairly be broadened to mean, for example, that simply because a crutch furnished by the employer happens to break and need replacement ten years after the injury, a new period of limitations should begin to run with respect to claims for surgery, permanent partial or total disability, and all the other benefits provided by the act. The scope of a reasonable and logical exception to the rule of limitations should not be extended beyond the defect that it was evidently designed to correct. Even a liberal construction of a statute must still be consistent with its basic intent. Whetstone v. Daniel, 217 Ark. 899, 233 S.W. 2d 625 (1950).

Reversed.

Furtle, J., dissents.