author: Bruce H. Shaw, Special Justice.

text:
    John A. S. LANE, Jr., d/b/a FORTUNE CAPITOL COMPANY v. Eugene M. PFEIFER, III, et al
    77-188
    568 S.W. 2d 212
    Opinion delivered July 17, 1978
    (In Banc)

      Friday, Eldredge & Clark, by: Michael G. Thompson, for appellant.

      Eichenbaum, Scott, Miller, Crockett & Dan, by: Gary F. Liles, for appellees.
   Bruce H. Shaw, Special Justice.

This action was originally brought by way of Interpleader filed by Southwestern Bell Telephone Company (hereinafter referred to as “Bell”). Named as parties to the action were those individuals and organizations having a property or contract interest in property lying East and West of what is now Wood-son Road, extended from 65th Street to Big Oak Lane, Little Rock, Arkansas. From a decision adverse to the Appellant this appeal is taken.

At one time the property lying adjacent to and East of what is now known as Woodson Road was acquired by Appellees, E. M. Pfeifer, Jr., E. G. Levy and James B. Pfeifer (hereinafter collectively referred to as “Pfeifers”). On the West side of Woodson Road Pfeifers own the southernmost portion followed to the North by a large tract owned by Bell, with Mr. and Mrs. Dave Cox (hereinafter referred to as “Cox”) owning the Northernmost section of land which is the Southwest intersection of 65th Street and Woodson Road.

Lewben Associates (hereinafter referred to as “Lewben”), an Oklahoma general partnership, purchased the South Half of the original Pfeifer tract on the East side of Woodson Road. Lewben intended to develop this property for residential purposes, but at that time the property had no access to 65th Street. Pfeifer, Bell and Cox, the parties owning the property on the West side of what is now Wood-son Road, were also interested in seeing the road developed and willing to pay their pro rata share of the cost of construction.

A purchase contract was entered into between Pfeifers and Lewben for Lewben to purchase the tract which it now owns. In the Contract of Sale with Lewben, Pfeifers agreed to reimburse Lewben three-fourths of the cost of construction since Lewben’s frontage on Woodson Road would be approximately 25% of the total frontage. Lewben obtained an estimate showing it would cost $24,258.88 to build Woodson Road from 65th Street to Big Oak Lane. Bell and Cox entered into letter agreements with the Pfeifers whereby Bell and Cox would reimburse the Pfeifers for their pro rata share of the cost of construction or the road, based on their respective frontages. In May, 1973, Lewben entered into a contract for construction of Woodson Road with Newcomb-West Construction Company (hereinafter referred to as “Newcomb-West”).

In October, 1973, Appellant, John Lane, d/b/a Fortune Capitol (hereinafter referred to as “Fortune”), a Missouri general partnership, entered into simultaneous contracts of sale with the Pfeifers and Lewben for the purchase of their respective lots comprising the entire East side of Woodson Road from 65th Street to Big Oak Lane, Pfeifers’ interest owning the North Half of the property fronting on Wood-son Road, and Lewben’s interest owning the frontage on the South Half of Woodson Road and immediately South of the property owned by Pfeifers. Fortune did not wish to become involved in the actual construction of Woodson Road, but wished to insure that it was, in fact, built. Both of the contracts of sale between Fortune and Pfeifers, and Fortune and Lewben, had a provision for an escrow in the vent that construction of the road and acceptance thereof by the City of Little Rock had not been accomplished by closing. Each contract also provides for earnest money paid by Fortune to be applied on the purchase price at closing, or in the event of forfeiture by Fortune, the terms of the contracts provided the earnest money would be forfeited as liquidated damages. The two contracts executed by Fortune wit Pfeifers and Lewben, respectively, anticipated joint closings on both parcels so that Fortune would assume ownership of the entire Eastern frontage of Woodson Road at the date of closing.

On the date of closing Fortune refused to complete its contract purchasing the Lewben property, thereby forfeiting the earnest money it had paid for that contract, but did close on the contract to purchase the Pfeifer property, the Northern Half of the Eastern frontage of Woodson Road, and paid $190,000.00. On the date of closing, April 10, 1974, Woodson Road was not completed. Pursuant to the requirement of escrow provision in the contract between Fortune and Pfeifers, the sum of $18,200.00 was escrowed out of the $190,000.00 purchase price, thereby decreasing the amount of money-received by the Pfeifers on the date of closing to $171,800.00. The Escrow Agreement, executed at the time of closing, had been prepared by the attorney for Fortune. This Escrow Agreement contained the following provisions:

“1. Escrowee hereby acknowledges the receipt of the sum of $18,200.00 from Seller, to be held and delivered by Escrowee under and pursuant to the following terms and conditions:
A. In the event Seller shall have completed the dedication to public use, acceptance of such dedication by the appropriate governmental authorities, and the construction of the extension of Woodson Road along the west side of the property this date conveyed from Seller to Buyer (within a 25 foot wide easement) in accordance with the requirements of the appropriate governmental authorities, on or before 135 days from the date of this agreement, then immediately upon the completion of all of such items and the displaying to Escrowee of evidence of completion and acceptance of same by the appropriate governmental authorities, Escrowee shall disburse said sum of $18,200.00 to Seller.
B. In the event that 135 days from the date of this agreement, said roadway has not been dedicated, accepted by the appropriate governmental authorities and constructed in accordance with the requirements of the appropriate governmental authorities, then immediately-following the expiration of said 135 days period, Escrowee shall deliver said sum of $18,200.00 to Buyer and Seller shall thereupon have no further responsibility or obligation to Seller (sic) for the construction of said roadway. ”

Upon the expiration of 135 days from the date of the Escrow Agreement, Woodson Road not being completed, Fortune withdrew the funds from the escrow. At the time of withdrawal, no notice was given to Pfeifers, and they were not given the opportunity to object to the withdrawal.

On October 10, 1974, the road being virtually complete, except for approximately $300.00 worth of work necessary to effect formal acceptance by the City, Newcomb-West requested final payment from Lewben for the road. Lewben contacted Fortune and requested the $18,200.00 withdrawn from the escrow to be applied to the cost of the road. Fortune refused, stating that since the 135 days set forth in the Escrow Agreement had expired, it was entitled to keep the $18,200.00 under the terms of the Escrow Agreement.

The present action was then begun by Bell interpleading its estimated share of the construction cost of the road into the registry of the Court. By miscellaneous and appropriate pleadings of Newcomb-West, Lewben, Pfeifers, Cox and Fortune, each party sought judgment against the other for their proportionate share of the cost of construction of Woodson Road with Pfeifers making claim against Fortune for the $18,200.00 withdrawn from the escrow.

The Chancery Court, after allowing oral testimony concerning the $18,200.00, found that it was the intent of the parties to the Escrow Agreement dated April 10, 1974, that the sum which was escrowed was to be used for the construction of the extension of Woodson Road. The lower court found the intent was to insure to Fortune that a road would be built, and the primary motive of the escrow was not forfeiture, but completion of the road. Fortune suffered no damage in any way by virtue of the road not being completed. The escrow fund was Pfeifers’ money, not Fortune’s, and it was to guarantee the road would be built. Judgment was entered as prayed for by the pleadings so that each party was to pay his proportionate share of the cost of construction of the road and for Pfeifers against Fortune for the $18,200.00. The only part of the Judgment being appealed is the Judgment for Pfeifers against Fortune.

Appellant raises only one issue in this Court as follows:

“The Court erred in allowing parol evidence to vary the expressed terms of the Escrow Agreement of April 10, 1974.”

It is well recognized that parol evidence cannot be introduced to change or alter a contract in writing. Equitable Discount Corp. v. Trotter, 233 Ark. 270, 344 S.W. 2d 334 (1961). The test of admissibility is whether the evidence offered tends to alter, vary, or contradict the written contract, or only to prove an independent, collateral fact about which the written contract was silent. In the former instance the testimony is inadmissible; in the latter, it is competent and proper. Loe v. McHargue, 239 Ark. 793, 394 S.W. 2d 475 (1965). When testimony is offered to prove an independent, collateral fact about which the written contract is silent, the parol evidenie rule is not applicable, and, therefore, an exception to the rule is unnecessary to allow the testimony to be presented. Upon considering all of the evidence in this matter and the contracts hereto, it is clear that the testimony offered and received into evidence by the Chancellor covered a point of the agreement between the parties upon which the Escrow Agreement was silent. Therefore, the oral testimony does not contradict the terms of the contract and is not excluded by the parol evidence.

As quoted above, the Escrow Agreement did not address itself to several items; the purpose of the escrow, what would happen in the event of partial completion of the road, or what the parties were to do with the funds in the event they were withdrawn from the escrow at the expiration of 135 days. In order to show the agreement of the parties not reflected by the Escrow Agreement, the Court properly allowed Appellees to introduce at the trial oral testimony showing the Agreement as actually entered into by the parties.

The testimony shows that if Woodson Road was not completed and accepted by the City of Little Rock within 135 days, it was the intent and purpose of the parties that Fortune would receive the $18,200.00 from escrow and pay for completion of the road itself. The oral testimony further shows that the purpose of the escrow was to insure the completion of the Woodson Road and whoever withdrew the money from escrow, Fortune or Pfeifers, was to apply that money to the construction of the road and the cost thereof. The actual dollar figure, $18,200.00, was agreed upon because Fortune was buying the road in place, and Fortune would, therefore, pay only one-quarter of the estimated cost of construction. Three-fourths of the cost of construction, $18,200.00, was then escrowed to insure its availability from Appellees at the time of completion of the road.

It is significant to note that the $18,200.00 placed in escrow was part of the $190,000.00 purchase price paid by Fortune. The Contract for construction of the Woodson Road was between Lewben and Newcomb-West. Neither of the parties to the road construction contract were parties to the Escrow Agreement, and, therefore, neither Fortune not Pfeifers had any control over the progress of the construction of the road. Consequently, the requirement that the road be completed within 135 days was beyond the control of any parties of the Escrow Agreement.

The Escrow Agreement, unlike the other contracts entered into between the parties involved in this litigation, has no provision concerning liquidated damages. The absence of a liquidated damages provision, in this agreement, considering, to the contrary its presence in the other contracts, indicates that the funds escrowed were not to be considered as liquidated damages by the parties thereto. The Escrow Agreement is silent as to what should be done with the escrow funds after they are withdrawn from escrow by either Buyer or Seller after the 135 days. The Chancery Court correctly held that since the Escrow Agreement did not cover this point, the oral testimony was proper and did not vary the terms of the contract since the Contract was silent on this point. Loe v. McHargue, supra.

It should also be noted that since the Escrow Agreement does not provide for payment of liquidated damages, assuming Fortune would be entitled to retain the $18,200.00, an unbargained-for bonus and profit from the transaction in question, the Escrow Agreement would provide for a penalty which this Court has consistently refused to allow. McIlvenny v. Horton, 227 Ark. 826, 302 S.W. 2d 70 (1957). This is particularly true in this instance where Fortune suffered absolutely no loss or damage by virtue of the road not being completed within the 135 days.

It is our conclusion, therefore, that the decree of the trial court should be, and it is, hereby affirmed.

Affirmed.

Conley Byrd, J., and John W. Mann, Jr., Sp. J., dissent.

Fogleman and Hickman, JJ., disqualified and not participating.


source: Caselaw Access Project

author:
PER CURIAM
      George Howard, Jr., Justice,

license: Public Domain

text:
    Johnny BOONE, Jr. v. STATE of Arkansas
    CR 77-237
    568 S.W. 2d 229
    July 17, 1978
    (In Banc)

      David F. Guthrie, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   PER CURIAM

On June 21, 1976, a jury found appellant guilty of burglary, Ark. Stat. Ann. § 41-1001 (Repl. 1964), and grand larceny, Ark. Stat. Ann. § 41-3901 (Repl. 1964). Following the introduction of five (5) prior convictions by the State, the jury assessed appellant’s punishment at thirty-one and one-half (31 1/2) years imprisonment for both the burglary and the grand larceny convictions. The trial court directed the sentences to be served consecutively, making a totai of sixty-three (63) years, in the Arkansas Department of Correction. From these convictions comes this appeal.

Appellant’s court-appointed counsel, who also represented appellant at trial, has filed a motion to withdraw as attorney of record, but in compliance with Anders v. California, 386 U.S. 738 (1967), has filed a brief stating there is no merit to the appeal. On May 8, 1978, appellant filed a pro se brief alleging several points of error. The State concurs with appellant’s counsel that there is no merit to this appeal.

Appellant challenges the sufficiency of the evidence relating to both convictions. Evidence was adduced at trial that the prosecuting witness’ mobile home was burglarized while he was away from home on the night of August 15, 1975. A gold pocket watch was the only item taken in the burglary. Later that night appellant, according to the testimony of a thirteen-year-old brother of a friend of appellant’s, threw the pocket watch onto the parking lot of Church’s Chicken in El Dorado. The next morning an employee of Church’s Chicken found the pocket watch, and the employee’s manager took the watch to a jeweler to have it repaired. The police recovered the pocket watch from the employee, and the watch was identified by the prosecuting witness as the watch that was taken in the burglary. “Possession of property recently stolen from burglarized premises, not satisfactorily explained to a jury, is sufficient to support a verdict of guilt of both the burglary and the larceny, even though there is no other evidence to show that the possessor had committed the crimes with felonious intent, either in person or by being present aiding, abetting or assisting another.” Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975) . See also Klimas v. State, 259 Ark. 301, 534 S.W. 2d 202 (1976) and Taylor v. State, 254 Ark. 620, 495 S.W. 2d 532 (1973). We find the evidence sufficient to sustain the burglary conviction.

In reference to the sufficiency of the evidence for the grand larceny conviction, the prosecuting witness testified that he had received the pocket watch as a gift from a friend. The friend’s children were so excited about the gift that they presented it to the prosecuting witness unwrapped with the price tag still attached to it. The price tag stated that the watch cost “a hundred and nineteen and some change.” No other evidence of value was presented. Since there was no objection raised regarding the admissibility of this evidence at the time it was offered, it was sufficient to establish that the value of the watch was in excess of thirty-five dollars ($35.00), the requisite amount for a conviction of grand larceny, Ark. Stat. Ann. § 41-3907 (Repl. 1964).

Appellant also complains that he was denied his right to appeal and that his attorney did not adequately apprise him of his right to appeal; however, appellant was not denied his right to appeal as is evidenced by this opinion.

Accordingly, appellant’s convictions for burglary and grand larceny are affirmed, and counsel’s motion to withdraw as attorney of record is granted.

Affirmed.

Howard, J., dissents.

George Howard, Jr., Justice,

dissenting. The majority affirms appellant’s conviction on the grand larceny charge on the theory that appellant’s counsel did not register an explicit objection to hearsay testimony presented in order to establish the value of a watch that was taken from the victim’s home. There is no direct testimony as to the actual value of the watch other than testimony about a tag attached to the watch bearing a figure which, of course, exceeds the sum of $35.00. Testimony was also given indicating that the watch was given to the victim as a gift from a relative.

It is clear from this record that defense counsel did register an objection of a general nature when the State offered the watch into evidence. At the close of the State’s case, defense counsel once again registered an objection and did, to a degree, specify that he was concerned about the State’s failure to establish value. The majority contends that the objection was untimely at this point.

Also, appellant’s attorney moved for a directed verdict at the close of the State’s case, in effect, challenging the sufficiency of the evidence to support his conviction. Thus, in my judgment, the issue of value could be considered at this point.

Moreover, it must be remembered that appellant received a sentence of thirty-one and one-half years on the burglary charge and thirty-one and one-half years on the grand larceny charge. These sentences are to run consecutively. It seems to me that in view of the long sentences received by the appellant in this case compassion alone dictates a finding by this Court, in the interest of justice, that the trial court committed reversible error in sustaining a term of thirty-one and one-half years that is based purely upon hearsay. Therefore, I would reverse the grand larceny conviction.


author: George Rose Smith, Justice.

text:
    Robert G. COGBURN v. STATE of Arkansas
    CR 78-37
    569 S.W. 2d 658
    Opinion delivered September 5, 1978
    (Division I)

      Guy H. Jones, Phil Stratton, Guy Jones, Jr., and Casey Jones, for appellant.

      Bill Clinton, Atty. Gen., by: James E. Smedley, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, Robert G. Cogburn, 21, pleaded guilty to six charges of delivery of a controlled substance. The circuit court imposed a 10-year sentence, but suspended the sentence on condition that Cogburn, in lieu of incarceration, work as a volunteer at the Arkansas Children’s Colony at Conway for at least 80 hours a month for two years. Ark. Stat. Ann. § 41-1203 (Repl. 1977). After about 11 months the trial court revoked the suspension and directed that Cogburn serve three years, with the other seven being suspended. This appeal is from that order.

The statute provides that a suspension may be revoked if the court finds by a preponderance of the evidence that the defendant has “inexcusably” failed to comply with a condition of the suspension. § 41-1208 (4). In reviewing an order of revocation we affirm unless we find the court’s order to be clearly against the preponderance of the evidence. Pearson v. State, 262 Ark. 513, 558 S.W. 2d 149 (1977). Here we so find.

The State’s witnesses thought Cogburn’s work at the Colony to be satisfactory except that he failed to work the required 80 hours a month. Immediately before the revocation Cogburn had worked 36 hours in April (with a doctor’s excuse for another 28 hours), 75 hours in May, 63 hours in June, 75 1 /2 hours in July, and 57 1 /2 hours in August before the hearing on August 29. The trial judge, in reviewing his notes at the time of the revocation order in November, seems to have thought that the hours just enumerated were those that Cogburn had missed instead of those that he had worked. That misunderstanding may have led to the revocation.

Cogburn’s fellow workers were complimentary about his work, thinking it to be better than that of some paid employees of the Colony. One described Cogburn as being extremely good with the kids, who were just crazy about him. Cogburn’s work was hard physically, for he had to lift afflicted children from wheelchairs, feed them, bathe them, and minister to their needs in other ways.

Cogburn, to support his wife and child, worked from 50 to 60 hours a week for his regular employer. His wife had heart trouble and also broke her leg during the period in question. Cogburn missed some of his volunteer work because of her illness. He himself suffered from an injured ankle, from the flu, from a 24-hour virus, and from rhinosinusitis. Part of this testimony about his illnesses was corroborated by a letter from his doctor. A doctor also suggested that Cogburn should reduce the number of hours that he was working weekly. There is no suggestion that Cogburn committed any violation of law during the period of suspension.

The statute is explicit in permitting the revocation of a suspended sentence upon the court’s finding that the defendant has inexcusably failed to comply with a condition of the suspension. Here we are convinced that Cogburn’s failure to work the full 80 hours each month — the only violation with which he is charged — cannot fairly be said to have been inexcusable. We must therefore reverse the order of revocation and remand the cause with directions that the suspension be reinstated on such terms that Cogburn will work at the Colony for two full years. It is so ordered.

We agree.

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


author: John A. Fogleman, Justice.

text:
    H. D. CHANDLER v. STATE of Arkansas
    CR 78-46
    569 S.W. 2d 660
    Opinion delivered September 5, 1978
    (Division II)

      Tackett, Moore, Dowd & Harrelson, for appellant.

      Bill Clinton, Atty. Gen., by: James E. Smedley, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was found guilty of theft of property of a value in excess of $10,000 in violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977). The theft was allegedly accomplished by a scheme by which one Jack Wilson, a weighmaster for Weyerhaeuser, issued tickets to Cleo Echols for logs delivered to Weyerhaeuser by appellant H. D. Chandler, for weights in excess of the actual weight of the logs. Echols was a logging vendor for Weyerhaeuser. Chandler was a truck driver who normally hauled logs for P. T. Henry. A truck driver delivering logs would fill out a trip ticket showing the contractor or vendor for whom he was delivering logs and deliver it to the weighmaster. After the gross weight of the truck and logs and the empty weight of the truck were recorded and the weight of the logs determined by subtraction, one copy of the weight ticket would go to the hauler, and others to various Weyerhaeuser offices.

Cleo Echols testified that he paid Chandler $14,437.58 for weight tickets brought to him by Chandler. Echols said that he had no interest in the logs delivered by Chandler, but permitted Chandler to use his name because logs delivered in his name were credited on a quota established for him by Weyerhaeuser and this prevented the lowering of his quota. It developed that a number of tickets issued by Wilson during the hours Chandler was delivering logs were “bogus,” i.e., the logs represented by the tickets were not delivered. There was evidence that the number of weight tickets issued on certain days while Wilson was weighmaster exceeded the number of loads of logs crossing the scales. Chandler was observed “hanging around” the scales after his empty truck had already been weighed.

Appellant moved for a directed verdict at the conclusion of the evidence on behalf of the state on the ground that the state had failed to prove any theft by Chandler beyond a reasonable doubt. Of course, the question was whether there was any substantial evidence of the theft, and the question of reasonable doubt was for the jury. Williams v. State, 260 Ark. 457, 541 S.W. 2d 300; Pharr v. State, 246 Ark. 424, 438 S.W. 2d 461. After this motion was denied, appellant offered evidence in his defense, including his own testimony, in the course of which he confessed that he took some “bogus” tickets to Cleo Echols, obtained checks and took the money to Wilson, who paid appellant three payments of $500 each, or a total of $1,500, from the proceeds. Chandler stated that he and Wilson were working together on the deal and that neither could have carried on the operation without the other. He said that he participated with Wilson in obtaining something more than $14,000.

Appellant’s argument that the evidence introduced by the state before resting its case-in-chief was insufficient is unavailing because: (1) his motion was not renewed at the conclusion of all the evidence (Walker v. State, 240 Ark. 441, 399 S.W. 2d 672); and (2) he introduced evidence after the denial of his motion (Chrestman v. Kendall, 247 Ark. 802, 448 S.W. 2d 22; Granite Mountain Rest Home, Inc. v. Schwarz, 236 Ark. 46, 364 S.W. 2d 306).

Appellant’s other point for reversal is stated thus:

UNDER THE RULES OF EQUITY A STUPID FOOL SHOULD NOT BE CONVICTED THROUGH THE OPERATIONS OF A SMART, WELL EDUCATED, AND WELL ADVISED WEIGHMASTER.

In arguing this point, appellant suggests that, by application of equitable principles stated in chancery cases, we should somehow reverse his conviction because he has had only a fourth grade education, and, according to his argument, can barely write his name and was susceptible to a smart weighmaster. This argument is wholly without merit. The case was tried in a law court, not a chancery court. It would be difficult for a fact finder to believe that appellant was so ignorant that he did not know that he was doing wrong. His admitted wrongdoing certainly justifies the bar of “equitable” relief.

The judgment is affirmed.

We agree.

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


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    Maurese ADAMS et al v. DIXIE SCHOOL DISTRICT NO. 7 et al
    78-143
    570 S.W. 2d 603
    Opinion delivered September 5, 1978
    (In Banc)

      Aaron L. Woodruff, for appellants.

      Berl S. Smith and Stephen M. Reasoner, of Barrett, Wheatley, Smith & Deacon, for appellees.
   Conley Byrd, Justice.

Pursuant to consolidation resolutions of the Boards of Dixie School District No. 7 and Brookland School District, the County Board of Education caused the consolidation issue to be submitted to the qualified electors of the respective school districts. The issue passed in Dixie School District by a vote of 245 For and 208 Against. Appellants, Maurese Adams, et al, ten qualified electors of Dixie School District brought this action against the respective school districts and their Boards of Directors alleging that 50 named persons, not qualified electors, were illegally allowed to vote in the Dixie School District and that if their votes were cast out the results of the election in Dixie School District would be against consolidation. The trial court sustained a demurrer by the respondent school districts on the basis that it had no jurisdiction to hear the contest.

To sustain the action of the trial court the School Districts and their Boards, the appellees, contend:

“In this appeal concerning the contest of an election, the appellees would at the very outset point to the fact that the question involved is solely one of statutory construction, there being no right or remedy at common law to contest an election. (26 Am. Jur. 2d ELECTIONS, Sec. 316; State Ex Rel Brooks v. Baxter, 28 Ark. 129 (1873), Baxter v. Brooks, 29 Ark. 173 (1874) ) While the point is obvious, and while appellants appear to concede it at the beginning of their brief, as their argument progresses they tend to forget it and rely on the ‘do right rule.’
There are three avenues of possible election contest under the statutes. There is appeal of the County Court order certifying school election results under Ark. Stat. Ann. 80-318, there is contest of school elections under Ark. Stat. Ann. 80-321-4, and there is the general election contest provided in Ark. Stat. Ann. 3-1001-9.”

Appellees’ first premise is contrary to the Constitution of Arkansas, Art. 19, § 24, which provides:

“The General Assembly shall provide by law the mode of contesting elections in cases not specifically provided for in this Constitution.”

In Sumpter v. Duffie, 80 Ark. 369, 97 S.W. 435 (1906), and Glidewell v. Martin, 51 Ark. 559, 11 S.W. 882 (1889), we construed this provision of our Constitution, “to mean that a place as well as a manner of trial shall be provided” for election contests.

Appellees correctly point out that appellants cannot purge the alleged illegal votes in a proceeding under Ark. Stat. Ann. § 80-318 (Repl. 1960), because in Guthrie v. Baker, 224 Ark. 752, 276 S.W. 2d 54 (1955), we held that a proceeding under Ark.Stat. Ann. § 80-318 would only test the correctness of the tabulation of the returns and that it could not be used for going behind the returns and inquiring into the qualifications of the voters. See also Parsons v. Mason, 223 Ark. 281, 265 S.W. 2d 526 (1954).

Appellees then contend that the clear statutory language of Ark. Stat. Ann. §§ 80-321 through 80-324 (Repl. 1960) and Ark. Stat. Ann. § 3-1001 (Repl. 1976) cannot be used to give the circuit court jurisdiction because both statutes provide only for contests of election of candidates for office. Appellants point out that election contests involving matters other than candidates have consistently been maintained or recognized. In doing so appellants point to such decisions as Buffington v. Carson, 219 Ark. 804, 244 S.W. 2d 954 (1952): Christenson v. Felton, 226 Ark. 985, 295 S.W. 2d 361 (1956); and Douglas v. Williams, 240 Ark. 933, 405 S.W. 2d 259 (1966). In response appellees correctly assert that the issue now raised was not before this Court in any of the decisions cited by appellants.

In view of the foregoing contentions, we must then turn to the provisions of Ark. Stat. Ann. §§ 80-321 — 80-324 (Repl. 1960). We note that those sections were compiled from Act 366 of 1951. That Act as passed by the General Assembly and approved by the Governor provided:

“AN ACT to Divest County Boards of Education of Jurisdiction to Hear and Determine School Election Contests: to Vest such Jurisdiction in the Circuit Courts; and for Other Purposes.
Be It Enacted by the General Assembly of the State of Arkansas:
SECTION 1. If the election of any member of a county board of education or member of a school district board of directors be contested it shall be before the circuit court of the county wherein the contested office exists.
SECTION 2. All actions to contest such election shall be commenced within twenty (20) days after the election at which any such person was elected.
SECTION 3. Actions to contest election of county and district school officers shall follow the procedure set out in Act 34 of the Arkansas Acts of 1875, Section 68 (Ark. Stats., 1947, Sec. 3-1204).
SECTION 4. It is hereby declared that the purpose of this Act is to divest county boards of education of jurisdiction to hear and determine school election contests and to vest such jurisdiction exclusively in the circuit courts.
SECTION 5. All laws and parts of laws in conflict herewith are hereby repealed.”

When we construe Act 366, supra, in accordance with the constitutional mandate given to the General Assembly, Art. 19, § 24 of the Arkansas Constitution, supra, (i.e. that a place as well as a manner of trial shall be provided for election contests), we must conclude that the title ot Act 366 as well as the purpose stated in section four thereof is rather conclusive that the statutory intent was to place the jurisdiction for the contest of all school election matters in the circuit court. It follows that the trial court was in error in holding that it had no jurisdiction to hear the election contest. Consequently, we need not consider the applicability of Ark. Stat. Ann. § 3-1001 (Repl. 1976).

In view of the nature of this litigation and the effect it may have upon the administration of the school districts involved, the Clerk is directed to issue an immediate mandate.

Reversed and remanded.

Fogleman and Hickman, JJ., concur.

John A. Fogleman, Justice,

concurring. I agree with the result reached in the majority opinion, but I do not think that result can be reached on the basis of the statutes and the constitutional provisions quoted, without more. In approaching the problem presented, we must resort, not only to the mandate of Art. 19, § 24, but also the the rule of liberal construction given statutes pertaining to election contests.

These rules of law are simply a guide to our construction of pertinent statutes, however, because the constitutional mandate is to the General Assembly, not the courts, and the judicial department is not licensed to perform any duty imposed upon the General Assembly which that independent and separate branch of government fails to perform. I also agree with appellants that election contests were unknown to the common law and that, in the absence of statute, there is no such remedy.

Still, I reach the same conclusion as that reached by the majority when the legislative history of school election law is considered and when the rule of liberal construction is followed. That rule requires that statutes providing for contesting elections shall be liberally construed to the end that there be a ready remedy whereby compliance with election laws may be assured. Reed v. Baker, 254 Ark. 631, 495 S.W. 2d 849; Gunter v. Fletcher, 217 Ark. 800, 233 S.W. 2d 242; LaFargue v. Waggoner, 189 Ark. 757, 75 S.W. 2d 235; Robinson v. Knowlton, 183 Ark. 1127, 40 S.W. 2d 450.

In 1931, the General Assembly undertook to rewrite most of the law governing the public school system by Act 169, a very comprehensive act entitled “An Act to Provide for the Organization and Administration of the Public Common Schools.” See Attwood v. Rogers, 206 Ark. 834, 177 S.W. 2d 723. The General Assembly called it the “School Law” in § 1. Most of the existing laws governing public schools were specifically repealed by § 196 of the act. Among those repealed were the provisions which had governed the consolidation of school districts and elections held on the question. Thus, after the passage of the 1931 act, it provided the only law governing consolidation of school districts.

Supervision of the public schools was vested in a county board of education by § 29 of that act. Sec. 30 required that the returns of all annual school elections be made to the county superintendent of schools, who was required to call a meeting of the county board within 15 days after the election to canvass the returns. This section, however, conferred jurisdiction of all school election contests on the county board of education in the following language:

* * * Any contest of any results of any election in any school district shall be brought within fifteen days after such election, if the results thereof shall have been certified to the county clerk five days previously, or within five days after such results have been certified, and not thereafter. The county board of education shall hear and decide all contests, and make their findings thereon, and such findings shall be conclusive, subject to appeal by the losing party, to the Circuit Court within ten days * * *

Furthermore, the county board of education was authorized by § 42 of the act to exercise such powers and jurisdiction with reference to the making and enforcement of orders as were formerly conferred upon the county courts.

By § 34, the county board of education was empowered to dissolve a school district and annex its territory to another district in the manner and under the conditions provided in the act. This included the power to consolidate school districts into another and new district and to do all things pertaining to consolidation of school districts, with consent of a majority of the electors in each district affected, as shown by petitions or elections as provided by the act. Sec. 66, Act 169 [Ark. Stat. Ann. § 80-404 (Repl. 1960)]. Sec. 49 contained the language: “Any contests of such elections may be made within the time herein provided for contesting school elections, and not thereafter. ” The calling of a special election by the county board of education was authorized by §§ 81, 83 and 84 of the act. The conduct of special elections and the handling of the returns seem to be governed by the provisions for the annual school election, except as specifically otherwise provided. See §§ 81-92. Clearly, the General Assembly intended that such elections be subject to contest. It seems just as obvious to me that the county board of education had jurisdiction of such contests under Act 169. In 1933, the county boards of education were abolished and their powers and duties transferred to the county courts. Act 247 of 1933. See also, Act 184 of 1935; McLeod v. Richardson, 204 Ark. 558, 163 S.W. 2d 166. Thus, jurisdiction of all school election contests was transferred to the county courts of the respective counties. Shimek v. Janesko, 188 Ark. 418, 66 S.W. 2d 626.

By Act 327 of 1941, the newly created county board of education was given all powers and jurisdiction with reference to the making of orders and enforcing the same as were formerly conferred upon the county courts. Ark. Stat. Ann. § 80-215 (Repl. 1960). Furthermore, by the same act, all powers, duties and responsibilities respecting the public schools then vested in the county courts were transferred to the county boards of education, except for the canvassing of returns and the certification of results of school elections. Ark. Stat. Ann. § 80-213 (Repl. 1960). Jurisdiction then was transferred to the county board of education by Act 327 of 1941. Ark. Stat. Ann. §§ 80-213, 80-215 (Repl. 1960). McLeod v. Richardson, supra; Atwood v. Rodgers, 206 Ark. 34, 177 S.W. 2d 723.

Thus, when Act 366 of 1951 was passed, the county board of education did have jurisdiction of school election contests. By a liberal construction of Ark. Stat. Ann. § 80-409, it may be said that the General Assembly intended that contests of consolidation elections be governed by statutes pertaining to school elections generally. A liberal construction of Act 366 of 1951 (Ark. Stat. Ann. §§ 80-321 — 80-324), with particular emphasis on § 4 (Ark. Stat. Ann. § 80-324), requires that we hold that jurisdiction of all school election contests was vested in the circuit courts. Cf. Jones v. Lawless, 226 Ark. 118, 288 S.W. 2d 324.

In McLeod v. Richardson, supra, we were faced with a similar situation. We noted there that the General Assembly appeared to have overlooked election contests and failed to affirmatively provide for them, but we found that the provisions of §§ 80-213 and 80-215 were sufficient basis for this court to hold that the legislative intent was to transfer jurisdiction of election contests from the county courts to the county boards of education. We said that, as the result of the oversight, “the deficiency must be supplied from the spirit of the act: from what was intended in effect, but not said.” We are as fully justified in doing precisely the same thing here, when the full legislative history of the matter prior to the passage of Act 366 of 1951 is considered. Any other result would imply that the General Assembly had ignored the clear legislative mandate of Art. 19, § 24. We should not do so when an opposite result can reasonably be reached.

Appellants point out that at least two cases involving school election contests where the contest related to issues submitted, rather than candidates, have reached this court, and the question of the circuit court’s jurisdiction was not raised in either. See Christenson v. Felton, 226 Ark. 985, 295 S.W. 2d 361; Cowger v. Mathis, 255 Ark. 511, 501 S.W. 2d 212. Appellees say that these cases are of no significance because the question was never raised. Of course, if there was a clear want of jurisdiction in this case, appellees are correct, and we should not consider this fact. Yet, when subject matter jurisdiction is involved, there can be no waiver of the jurisdictional question and either the trial court or the appellate court may, and should, raise the question. The fact that the capable lawyers involved in these cases, the two separate circuit courts from which they came and every member of this court failed to raise the question of jurisdiction is not without significance.

We are uncertain, from the record as abstracted, as to the statute invoked for this consolidation. But even if the alternative method provided by Ark. Stat. Ann. §§ 80-446 — 80-453 (Supp. 1977) governed, that act (Act 125 of 1961, as amended) provides that, except as provided in the act, all matters regarding consolidation of districts and all other actions taken pursuant to that act must be in accordance with existing laws. The existing laws would include those governing school election contests.

      Sec. 29 was repealed by Act 184 of 1935, but the county board of education was recreated by Act 327 of 1941 (Ark. Stat. Ann. § 80-201 (Repl. 1960)].

      This procedure is now governed by Act 403 of 1951, so that the canvass of returns is made by the county court. See Ark. Stat. Ann. § 80-318 (Repl. 1960). See also, Shimek v. Janesko, 188 Ark. 418, 66 S.W. 2d 626; McLeod v. Richardson, 204 Ark. 558, 163 S.W. 2d 166.

      This power is now vested in the county board by Act 327 of 1941 [Ark. Stat. Ann. § 80-213 (Repl. 1960)]. Byrd v. State, 240 Ark. 743, 402 S.W. 2d 121.


author: Conley Byrd, Justice.

text:
    Ernest C. ROBINSON and Carlos WILLIAMS v. STATE of Arkansas
    CR 78-56
    569 S.W. 2d 662
    Opinion delivered September 5, 1978

      John W. Achor, Public Defender, for appellants.

      Bill Clinton, Atty. Gen., by: James E. Smedley, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellants Ernest C. Robinson and Carlos Williams filed a petition in the trial court under Rule 37 of the Rules of Criminal Procedure for post-conviction relief. The petition stated that they were brought before said court to answer charges of assault with intent to kill arising out of a robbery charge in which they had previously been sentenced to a term of years. Appellants further stated that they had pled guilty to the said robbery charge with the understanding that the plea would include all charges against them arising out of the robbery committed previous to the plea.

The State responded alleging that appellants were well and sufficiently advised of the charge of assault with intent to kill as well as their right to a trial by jury and thereafter appellants entered a negotiated plea to the charge of assault with intent to kill.

The trial court in dismissing appellants’ petition entered the following order, to-wit:

“On this date this cause came for a hearing on petitioners’ motion, and from the motion and response thereto, and from the records and pleadings before the court, the court being well and sufficiently advised, finds that the petitioners’ motion is without merit.
It is, therefore, ORDERED and ADJUDGED that petitioners’ motion for relief under Rule 37 be denied.”

Even though appellants designated the complete record, the record before us contains only the petition, the State’s response, the trial court’s order and the notice of appeal together with the designation of the record. On that scant record, we cannot understand how the trial court could determine that the appellants’ motion was without merit.

Furthermore, Rule 37.3(a) of the Rules of Criminal Procedure provides:

“If the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files or records that are relied upon to sustain the court’s findings.”

The order entered by the trial court does not comply with Rule 37.3(a), supra, in that it does not specify the parts or the files or records that the court relied upon.

For the errors indicated this matter is reversed and remanded for proceedings not inconsistent herewith.

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


author: Frank Holt, Justice.

text:
    Earl James LUNON, Jr. v. STATE of Arkansas
    CR 78-44
    569 S.W. 2d 663
    Opinion delivered September 5, 1978
    (Division I)
    [Rehearing denied September 25, 1978.]

      John W. Achor, Public Defender, by: William R. Simpson, Deputy Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellant guilty of the crimes of aggravated robbery and theft of property and assessed his punishment in the Department of Correction at five years for aggravated robbery and one year for theft of property. Appellant first contends that the evidence was insufficient. We cannot agree.

A local bank was robbed at gun point by two males. One witness, a bank employee, watched the robbers leave the bank, walk across the street and through a shopping area into the woods behind it. Although she observed appellant from the back only, she positively identified him as one of the robbers in a lineup and at trial. The branch manager of the bank was unable to identify appellant positively but gave a general description of him. Four hundred and twenty-nine photographs of the robbery, taken by the bank’s automatic camera, were in evidence for the jury’s consideration in determining appellant’s identity. Twenty-seven of these pictures were enlarged, some of which depicted unmasked facial features of both robbers. It was for the jury to decide the credibility of the witnesses and the question of identification. Tarkington v. State, 250 Ark. 972, 469 S.W. 2d 93 (1971); and Lacy v. State, 240 Ark. 84, 398 S.W. 2d 508 (1966).

In determining the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the jury’s verdict. Murphy v. State, 248 Ark. 794, 454 S.W. 2d 302 (1970). Here the recited evidence was amply substantial.

Appellant also argues that the court erred in failing to grant his pretrial motion for severance. Rules of Crim. Proc., Rule 22.1 (b) states:

If a defendant’s pretrial motion for severance is overruled, he may renew the motion on the same grounds before or at the close of all the evidence. Severance is waived by failure to renew the motion.

Appellant did not renew his motion before or at the close of all the evidence. Accordingly, severance was waived.

Affirmed.

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

      Appellant’s codefendant, Donald Edward Wade, also appealed his conviction. On May 30, 1978, we granted his motion to dismiss his appeal.


author: George Howard, Jr., Justice.

text:
    STATE of Arkansas v. Raymond P. MANEES
    CR 78-27
    569 S.W. 2d 665
    Opinion delivered September 5, 1978
    (Division I)

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellant.
    No brief for appellee.
   George Howard, Jr., Justice.

This is an appeal by the State of Arkansas which presents two issues of interest. The first question may be appropriately framed as:

After a defendant-inmate has commenced serving his sentence in the Department of Correction, does the trial court, which imposed the sentence, have jurisdiction to modify its judgment ?

The second question may be properly stated as follows:

Where a trial court grants relief under a post-conviction petition filed by an inmate-petitioner, is the trial court duty bound to make formal findings of fact and conclusions of law graphically delineating the relief granted?

THE FACTS

On October 24, 1974, the presiding judge of the Circuit Court of Faulkner County entered a judgment of conviction against the appellee, Raymond Manees, upon pleas of guilty to the charges of burglary, grand larceny and attempted escape, sentencing the appellee to a term of seven years in the Department of Correction. However, the sentence was suspended conditioned upon appellee’s good behavior.

On June 6, 1975, appellee entered pleas of guilty to two charges of hot check law violation and to a charge of attempted escape. Pursuant to the pleas of guilty, the trial court sentenced appellee to three years on each charge to run concurrently to each other; the court, pursuant to formal motion by the State, revoked the seven year suspended sentence entered on October 24, 1974, and the court further ordered that the three year sentences which were to run concurrently to each other would run consecutively to the seven year sentence. Stated differently, appellee was sentenced to the Arkansas Department of Correction for a period of ten years.

On April 2, 1977, approximately two years after appellee had been formally sentenced to the Department of Correction, appellee filed a motion to vacate the sentence imposed on June 6, 1975, on the ground that appellee had not been credited for 130 days that he spent in jail prior to his conviction on June 6, 1975, on the charges of violation of the hot check law and attempted escape. The appellee requested that his conviction of June 6, 1975, be vacated, or, in the alternative, his ten year sentence be reduced, or, in the further alternative, the conviction of June 6, 1975, and the sentences pursuant thereto run concurrently to the seven year sentence of October 24, 1974.

On February 2, 1978, the trial court, without receiving any evidence in support of appellee’s motion to vacate the sentences or modify them, announced its intention to run the sentences imposed on June 6, 1975, concurrent to the seven year sentence imposed on October 24, 1974, rather than consecutively. The Order in its entirety is as follows:

“On February 2, 1978, Raymond Manees, appeared in person and by his attorney, Casey Jones, hearing was held on petitioner’s Motion to Vacate under Rule 37.1 and 37.2, at which time evidence and testimony was taken. From the evidence and testimony it was determined that petitioner should have his sentences run concurrently rather than consecutively.
“Wherefore, it shall be the order of the Court on this the 2nd day of February, 1978, that the sentences 48-40 and 48-41 run concurrently with 75-61, 75-62, and 75-105 and that the prior sentence which ran these sentences concurrently is now vacated, void and set aside.
“IT IS SO ORDERED.”

On February 17, 1978, the following order which was characterized as a “Clarification of Order” was entered:

“This is to clarify the order of February 2, 1978, in that the order incorrectly states that the prior sentences which were vacated ran concurrently. Those prior sentences did in fact run consecutively and the order of February 2 in effect vacates those consecutive sentences and runs them concurrently.
“IT IS SO ORDERED.”

THE DECISION

I.

The State of Arkansas, in seeking to reverse the action of the trial court, has asserted that the trial court was without jurisdiction to entertain appellee’s petition for the vacation or modification of his sentence to the Department of Correction on June 6, 1975. We are persuaded that this contention has merit.

In Charles v. State, 256 Ark. 690, 510 S.W. 2d 68, we made the following observation:

“. . . [W]hen a valid sentence has been put into execution, the trial court is without jurisdiction to modify, amend, or revise it in any way either during or after the term or session of the court at which the sentence was pronounced.” (Emphasis added)

We do not have a situation in the instant case where the trial court is seeking to correct its judgment in order to make it speak the truth in aid of this Court in its appellate jurisdiction, Fletcher v. State, 198 Ark. 376, 128 S.W. 2d 997; or involving a judgment of conviction that is void because of the want of due process of law.

Once a defendant is placed in the custody of the Arkansas Department of Correction to the end that he may commence serving his sentence under a valid judgment of conviction, the Department of Correction has exclusive jurisdiction for the care, control and supervision of the individual and the trial court has no authority to intervene in the process of the supervision and administration of the defendant-inmate. Charles v. State, supra.

II.

The State of Arkansas further argues that the trial court’s action in modifying the appellee-inmate’s sentence of June 6, 1975, to run concurrently rather than consecutively is a nullity because the trial court’s order is void of any findings of fact and conclusions of law. This argument also her merit.

Relevant provisions of Rule 37.3(c) of the Arkansas Rules of Criminal Procedure applicable to post-conviction proceedings and relief brought by a defendant-inmate, as we have here, provide:

“. . . The court shall determine the issues and make written findings of fact and conclusions of law with respect thereto ...” (Emphasis supplied)

In Fuller v. State, 256 Ark. 133, 505 S.W. 2d 755, we made the following observation relative to the necessity of the trial court in making findings of fact and conclusions of law in accordance with former Criminal Rule 1(E), the prececessor of the current Rule 37 of the Arkansas Rules of Criminal Procedure:

"This provision is mandatory . . . ’’(Emphasis added) See: Orman v. Bishop, Supt. State Prison, 243 Ark. 609, 420 S.W. 2d 908 (1967).

It is clear from this record that no findings of fact and conclusions of law were made by the trial court relative to the hearing on appellee’s motion to vacate his sentence. Moreover, the record is void of any evidence whatsoever in support of appellee’s motion for relief.

Reversed.

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

      The law applicable to one obtaining property or personal services with a check drawn on insufficient funds is referred to and cited as “The Hot Check Law.” See: Ark. Stat. Ann. § 67-719 (Repl. 1966).

        See: Swagger v. State, 227 Ark. 45, 296 S.W. 2d 204, where it was held that where a judgment or conviction is void because of the want of due process of law, it has no force and effect, and can be vacated at any time — even after commitment to the penitentiary.


text:
    James C. HUNTER and Joe Earl MOSLEY v. STATE of Arkansas
    CR 78-78
    570 S.W. 2d 267
    Opinion delivered September 11, 1978
    (Division I)

      Ralph Wilson, Jr., Deputy Public Defender of Mississippi County, for appellants.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellants, James C. Hunter and Joe Earl Mosley, were tried together and found guilty of burglary and of third-degree battery. The jury fixed their punishment at 20 years for the burglary and at one year, plus a $1,000 fine, for the battery. Their only argument for reversal is that the burglary sentence is excessive.

According to the State’s proof, which was in the main admitted by the defendants, they unlawfully entered the home of the 79-year-old prosecutrix, beat her severely, and took what money she had — $2.50 in her purse. They also forced her to write two checks totaling $250.00. They were apprehended almost at once. The checks were recovered.

At the trial the argument was made by defense counsel, and it is repeated here, that the defendants’ conduct in beating the aged prosecutrix pertained only to the battery and should not be considered with regard to the punishment for the burglary, a separate offense. It is also insisted that the prosecuting attorney made an improper argument in urging the jury to consider all the circumstances in the case as a basis for imposing the maximum sentence for the burglary.

Burglary is a class B felony, punishable by imprisonment for from 3 to 20 years and by a fine not exceeding $15,-000. Ark. Stat. Ann. §§ 41-2002, 41-901, and 41-1101 (Repl. 1977). The 20-year sentence is within the permissible maximum and is therefore not excessive. Rogers v. State, 257 Ark. 144, 515 S.W. 2d 79 (1974), cert. den. 421 U.S. 930 (1975). As to the prosecutor’s argument, in the first place there was no objection, which precludes the appellants from raising the point in this court for the first time. In the second place, the argument was not improper. The statute allows the punishment to range from 3 to 20 years, vesting great discretionary latitude in the jury. Obviously the legislature intended for the jury to consider all the aggravating and mitigating circumstances shown by the evidence, else there would be no basis for the exercise of this discretion. Here counsel for both sides merely argued what they were entitled to argue. We are not at liberty to disturb the verdict.

Affirmed.

We agree.

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


text:
    Gary Michael SELPH v. STATE of Arkansas
    CR 78-53
    570 S.W. 2d 256
    Opinion delivered September 11, 1978
    (Division II)

      Don Langston and John W. Settle, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Gary Michael Selph received a suspended sentence on a charge of burglary and theft of property in the Circuit Court of Sebastian County on April 7, 1977. On December 13, 1977, a petition to revoke the suspension was filed. It was based on an allegation that Selph had violated the terms of the suspension by committing burglary on October 8, 1977. After a hearing on December 14, 1977, the suspension was revoked. Two days later, appellant filed a motion to set aside the order of revocation, alleging that the state had introduced evidence of incriminating oral statements, allegedly made by him, without having been required to prove the voluntariness of the statements and that, without this testimony, the evidence was insufficient to justify the revocation. He requested a hearing on the motion, but no hearing was held and appellant elected to give notice of appeal on January 12, 1978, and the appeal was lodged here on April 10, 1978, apparently without appellant’s ever having been heard on his motion.

Appellant first contends that the court erred in revoking the suspension of his earlier sentence because the state failed to prove a violation of the terms of the suspension by a preponderance of the evidence. He concedes that he has the burden of showing that the trial court’s finding was clearly against the preponderance of the evidence. See Pearson v. State, 262 Ark. 513, 558 S.W. 2d 149.

Appellant first argues that the evidence, including his incriminating statements, is insufficient to show a burglary committed by him. We disagree when we view the evidence in the light most favorable to the state, as we must.

On October 8, 1977, at 10:41 p.m., Officer Cooper answered a call reporting a burglary at Brandee’s Fast Food, a drive-in restaurant (which was closed for the night) located at 12th and Midland in Ft. Smith. There are paved parking lots in front of, on each side of, and immediately behind the restaurant. Further to its rear, there is a parking lot for trailer trucks connected with an ice plant. Cooper found a picture window facing 12th Street broken so that a medium-sized man could walk right through the window. Cooper entered the building. Neither he, nor anyone else who testified, found any evidence that anyone had physically entered the building or taken anything from it. When Cooper left the building he was approached by a woman. While engaged in conversation with her, he noticed a man (positively identified by him as Selph) squatting near the wheels of a trailer truck on the ice plant parking lot. When Cooper approached the trailer, which was 25 to 50 feet away, Selph started across the back of the cab of the truck, and, when Cooper came closer, Selph “hit the ground,” looked at the officer and ran. Selph, in his flight, “flew” over a chain link fence eight feet high. When Selph arose from the ground, he started toward Cooper and it appeared to Cooper that he had something in his hand. Cooper commanded that Selph “halt” and, fearing that Selph had a weapon, drew his pistol and fired one shot into the ground and two others in the direction of Selph as he ran into an adjoining field. Later Selph was taken to a hospital by Officer Lowrance for treatment of a wound in the area of his buttocks.

Lowrance described Selph as being exhausted, weak, run-down and out of breath when he took Selph from the custody of Captain Bettis, who had called for assistance after he had taken Selph into custody at a place separated from the restaurant only by a field covered with tall vines and grass. After having been advised of his right to counsel and his right to remain silent, and without having been asked any questions, Selph admitted having been in the area around the restaurant after he had heard a report of a burglary and having been chased and shot by an officer, even though he vacillated between differing versions of the shooting.

Selph’s shoes matched prints found on the ground in the ice plant parking lot and on the gas tanks of a truck parked there. The prints were about 15 yards from the building. The area immediately behind the restaurant building for a distance of approximately ten yards was covered with a material that would not show footprints.

Officer Caldwell was assigned the duty of guarding Selph at the hospital. On October 9, at approximately 9:55 p.m., Selph and Caldwell were watching television, when Selph, without any interrogation by Caldwell, began relating events of the preceding evening. Selph said that the officers had suspected that his wife had been with him at the time of the alleged “break-in” and then began talking of the girl at the scene, saying, “They thought that girl was with me when I broke in that place.”

Selph elected to testify. He admitted that he had been hiding behind the truck for about ten minutes before he was found by Officer Cooper. He also admitted that the officer yelled at him when he started over the fence, and that he “took off.” He said that in talking to Officer Caldwell at the hospital, he was only referring to a clipping from a Ft. Smith newspaper which included a statement that a “long blond-haired girl” had been with him. He said the clipping had been brought to him by his wife. Yet, on cross-examination, he said that he did not remember what had happened in the hospital room and did not even remember being in there. Selph testified that he had walked in front of the restaurant and said that the police had been to the scene, made an investigation, and left before he arrived, but had returned after he had hid in the parking lot. Selph had, on one occasion, said that he knew of the “break-in” at Brandee’s because his wife had told him of it. She denied having had such a conversation with him. Selph had given differing explanations of his having been shot, including two versions other than the admission that he had been shot by officers while near the restaurant.

Appellant is correct in his argument that the evidence did not show an entry into the building, which is an essential element of the crime of burglary as defined by Ark. Stat. Ann. § 41-2002 (Repl. 1977). But it was sufficient to show the lesser included offense of breaking or entering defined by § 41-2003 (Repl. 1977), which itself constituted a violation of the terms of the suspension of his sentence. Appellant’s statement to Caldwell, if that officer’s testimony be given full credence, as it obviously was, is sufficient to connect him with the crime of breaking. This statement, along with Selph’s presence at the scene, his attempt to hide, his flight upon approach of Officer Cooper and the circumstances of his apprehension, constituted sufficient evidence of the corpus delecti. Mouser v. State, 215 Ark. 131, 219 S.W. 2d 611.

Appellant also argues that, even assuming that he voluntarily made the statement attributed to him by Caldwell, the evidence is insufficient, unless there is other proof that a crime was committed, as required by Ark. Stat. Ann. § 43-2115 (Repl. 1977). This statute, by its own language, applies only where a conviction of the crime charged is sought on a trial on that charge. Its applicability is as restricted by its language as is Ark. Stat. Ann. § 43-2116 (Repl. 1977), regarding the requirement of corroboration of the testimony of an accomplice for conviction of a felony. We have heretofore held that the latter statute is inapplicable to a proceeding for revocation of a suspension of sentence. Ellerson v. State, 261 Ark. 525, 549 S.W. 2d 495. For the same reason, Ark. Stat. Ann. § 43-2115 has no application to a proceeding for revocation and appellant’s virtual confession would afford sufficient basis for the judgment revoking his suspension. See also, Bush v. State, 506 S.W. 2d 603 (Tex. Cr. App., 1974); Arizona v. Lay, 26 Ariz. App. 64, 546 P. 2d 41 (1976).

Appellant’s other point for reversal is a contention that the trial court erred in failing to grant a hearing on the voluntariness of his statements to Officer Caldwell. This question was not raised during the course of the proceeding. It was only raised by the post-trial motion. No objection was registered to the testimony to which objection is now made. Officer Lowrance had testified that, at the time Selph was taken to the hospital, Captain Bettis, in Lowrance’s presence, had advised Selph of his right to counsel and his right to remain silent. Captain Bettis, who had known Selph since Selph was a child, testified that he had not only advised Selph of these rights, but had advised him that anything he said could be used against him and that, if he could not afford to hire an attorney, one would be appointed. The testimony that there was no interrogation of Selph by the officers, except when Caldwell asked him to repeat the statement he had made, was uncontradicted. Caldwell testified that he had advised Selph of his rights under Miranda after Selph had made the statement and had declined to discuss the matter further with Selph, who still persisted in talking about the events of the previous night, but made no further incriminating statements. Selph denied having told the police officers anything when he was arrested. He did not say that he had been coerced into making any statement, and could only explain Caldwell’s testimony by saying that Caldwell misunderstood him. The contradiction in his testimony regarding this conversation and his recollection is significant.

Appellant’s time for filing notice of appeal did not expire until 30 days after the disposition of his motion. Ark. Stat. Ann. § 43-2704 (Repl. 1977). Obviously, he elected to appeal rather than press for a hearing on his motion. But in any event, we cannot say that he was entitled to a hearing on the motion. The record does not disclose any request for discovery under Rule 17, Rules of Criminal Procedure, and the prosecuting attorney was under no duty to disclose the substance of Selph’s statement to defense counsel in the absence of a timely request. We do not see how appellant can claim surprise as an excuse for failure to object to the statement on the ground asserted in his post-trial motion when the officer, before relating the statement, testified that Selph had begun relating facts that had occurred on the night of October 8. Before stating what had been said by Selph, Caldwell was interrupted by a question by the trial judge and was asked another by the deputy prosecuting attorney. No objection was made, no request was made to strike the testimony and no request was then made for a Denno hearing. Cross-examination by appellant’s attorney was not directed toward the establishment of a lack of voluntariness on the part of Selph. Rather, counsel attempted to emphasize such things as Caldwell’s failure to write down what Selph had said for about an hour, the fact that, within a few moments, Selph had made two inconsistent statements to Caldwell and Caldwell’s failure to warn Selph of his rights until after he had made both statements and the possibility that Caldwell was confused about the statements actually made. There was no intimation in Selph’s testimony, given later, that his statement was not voluntary unless his answer that he did not remember being in the hospital or what had happened there and Caldwell’s statement that medication for pain had been administered be taken as such. He made no allegation in his motion to set aside the trial court’s order that the statement was involuntary. Furthermore, the motion contains no statement that the movant believed the action to be meritorious or that it was not offered for the purpose of delay, as required by statute.

The decision in Jackson v. Demo, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), does not require a hearing as to the voluntariness of a confession when the defendant does not object to its admission. Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). Jackson merely holds that a defendant has a “right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness.” Wainwright v. Sykes, supra. “[T]he Constitution does not require a voluntariness hearing absent some contemporaneous challenge to the use of the confession.” Wainwright v. Sykes, supra. [Emphasis ours.] As in Wainwright, as this proceeding unfolded, the trial judge is not to be faulted for failing to question the voluntariness of the statement himself, particularly when it was obvious here that trial counsel was pursuing a different strategy.

Our statute on the subject requires an in camera hearing concerning the admissibility and voluntariness of a confession only when the issue is raised by the defendant and the determination is to be made before admitting the confession into evidence. Ark. Stat. Ann. § 43-2105 (Repl. 1977). Cf. Hill v. State, 250 Ark. 812, 467 S.W. 2d 179. When the question of voluntariness of a confession was raised in Bivens v. State, 242 Ark. 362, 413 S.W. 2d 653, we applied the general rule that an alleged error in a felony case of a degree less than capital cannot be considered by this court in the absence of an objection calling for a ruling by the trial court. We also applied the rule that an objection first made in a motion for new trial was not sufficient. We there pointed out that we had held that a party should not be permitted to speculate upon the testimony of witnesses and then, at the end of the trial, demand that incompetent testimony be excluded. Similarly, it was stated in Wainwright that failure to give regard to a contemporaneous objection rule might encourage “sandbagging” on the part of defense lawyers by taking a chance on a favorable result and subsequently raising the constitutional claim if the initial gamble did not pay off. We do not mean to intimate that trial counsel in this case was consciously guiity of such a tactic. It is sufficient to state that no valid reason for failure to make a contemporaneous objection or motion to strike has been demonstrated, even in the post-trial motion.

The judgment is affirmed.

We agree.

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


text:
    Eddie LOWE v. STATE of Arkansas
    CR 77-214
    570 S.W. 2d 253
    Opinion delivered September 11, 1978
    (Division I)

      David R. Powell, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was found guilty by a jury of negligent homicide and his punishment assessed at one year’s imprisonment in the county jail and a fine of one thousand dollars. We affirm since we find no merit in any of appellant’s numerous contentions for reversal.

Appellant first contends that the trial court erred by refusing to instruct the jury that a higher degree of negligence is required in a criminal case than in a civil case (“a mere civil issue”). We first observe that the proffered instruction did not tell the jury what constitutes civil negligence. Further, the court correctly and adequately instructed the jury as to what degree of negligence is required to constitute negligent homicide. The instruction contained the language of Ark. Stat. Ann. § 41-203 (4) (Repl. 1977) which defines the required negligence.

Next, appellant argues that the trial court erred by refusing to give his proffered instruction which concerned the obligation of the jurors in their deliberation and their duty to make a sincere effort to arrive at a verdict which each juror feels “is consistent with his conscience ánd sense of right.” This is commonly known as the “Allen” charge which we have approved whenever the jurors have been unable to reach unanimity. See Evans v. State, 252 Ark. 335, 478 S.W. 2d 874 (1972). Here, however, this instruction was offered as an original instruction and before any deliberation by the jury. The court had already charged the jury with respect to the performance of their duties and responsibilities. Certainly, it cannot be said that the trial court abused its discretion in refusing appellant’s proffered instruction.

Appellant asserts that the court erred in instructing the jury on the lesser offense of negligent homicide, contending that negligent homicide is not a lesser included offense of manslaughter. Ark. Stat. Ann. § 41-105 (2) (Repl. 1977) provides that “ [a] defendant may be convicted of one offense included in another offense with which he is charged.” The statute further provides that “[ajn offense is so included if:... (c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable menta! state suffices to establish its commission.” Manslaughter is committed when a person recklessly causes the death of another person. Ark. Stat. Ann. § 41-1504 (Repl. 1977). A person commits negligent homicide when he negligently causes the death of another person. Ark. Stat. Ann. § 41-1505 (Repl. 1977). Arkansas' new criminal code now recognizes four kinds of culpable mental states: two of these are denominated as “recklessly” and “negligently.” Ark. Stat. Ann. § 41-203 (3) and (4) (Repl. 1977). There the respective statutory test is whether the actor perceived the substantial risk of death and disregarded it (reckless conduct) or failed to perceive the risk of death in the first place (negligent conduct). Thus, the only difference between manslaughter and negligent homicide is the mental state of the actor. Therefore, negligent homicide, which requires a lesser culpable mental state than manslaughter, is a lesser included offense of manslaughter. The comments to Ark. Stat. Ann. § 41-1505 (Repl. 1977) support this view. There it is stated that manslaughter is committed if a driver acts recklessly, while negligent homicide is committed if he acts negligently. Consequently, it was not error for the court to include the instruction on the lesser included offense.

Appellant next asserts that the court erred in not giving a special verdict form to the jury which required them to specifically find that appellant was the driver of the automobile involved in the accident. Ark. Stat. Ann. § 43-2144 (Repl. 1977) provides that the jury may render either a general or special verdict. The appellant cites us no statute or case law which mandates the court tp give the special verdict form as requested here. Suffice it to say, the general verdict of guilty implied a finding by the jury that appellant was the driver of the vehicle which caused the death of another person. The court did .not abuse its discretion in refusing appellant's requested spcA-d verdict.

Appellant fit;thor-asserts that the evidence was insufficient and, therefore, the court erred in overruling his motion for a directed verdict. Appellant questions the sufficiency of the evidence with respect to his identity as the driver of the car and also any “wrong doing” as the driver of the car. The state adduced evidence from two state troopers that, while they were patrolling a highway, their radar indicated an automobile was approaching at 76 mph. The officers turned on their blue lights as the car passed them, their spotlight illuminated the car and the driver, who was wearing a dark cap. One of the officers, having known the appellant for approximately five years, identified the appellant as the driver. The officers turned around and pursued the speeding car. The driver of the vehicle refused to heed the officers’ pursuit and tried to negotiate a turn at a highway junction. Another car was stopped at this junction. The driver of the speeding car was unable to make the turn and collided with the stopped vehicle, causing death of a passenger in the stopped vehicle. The physical facts indicate that the speeding vehicle left 98' of scuff marks before impact and 49' afterwards. The stopped vehicle was knocked 73' from the point of impact. The driver of the speeding car fled the scene. Appellant was arrested about five hours later wearing dark clothes and a dark cap and with bloody spots on his face.

§ 41-1505, supra, provides: “A person commits negligent homicide if he negligently causes the death of another person.” The comment to the statute reads that it “is designed to cover conduct producing liability because the actor negligently fails to perceive that his conduct creates a substantial and unjustifiable risk of death to another.” When we view the evidence in the light most favorable to the appellee, as we must do on appeal, we consider it amply sufficient and substantial.

It is next contended that the court erred in permitting the prosecutor to impeach appellant’s character witness through the use of alleged prior bad acts of appellant. Appellant did not testify. However, he produced a character witness who was allowed to testify that he had personally known appellant approximately twelve years and that appellant had always been truthful to him and exhibited good moral character. The state had objected to the question as being improper asserting that appellant’s truthfulness and good character had no place in evidence and a proper foundation was not laid. The prosecutor was permitted to ask this character witness on cross-examination if he, himself, had any knowledge about appellant having had any “trouble” or “some minor scrapes” with the law. Certainly, the court did not abuse its discretion in permitting this cross-examination to test the knowledge of the character witness since it was admittedly based upon his personal acquaintance with appellant. See Allen v. State, 260 Ark. 466, 541 S.W. 2d 675 (1976).

It is finally argued that the court erred when it refused appellant’s effort on recross-examination to elicit testimony from the investigating police officers as to whether alcohol was found in the vehicle in which the deceased passenger was riding. The court was correct. There was no evidence that the stopped vehicle or its driver, in any way, contributed to the accident. Obviously, the information sought was irrelevant to the issue. Being irrelevant to the existence of any fact issue, it was not admissible. Ark. Stat. Ann. § 28-1001, Rules 401 and 402 (Supp. 1977).

Affirmed.

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


author: Darrell Hickman, Justice.

text:
    Robert Lee MARSHALL, a/k/a Robert Lee JONES v. STATE of Arkansas
    CR 78-58
    570 S.W. 2d 261
    Opinion delivered September 11, 1978
    (Division II)

      John W. Achor, Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: James E. Smedley, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Robert Lee Marshall, who is also known as Robert Lee Jones, was convicted in the Pulaski County Circuit Court of terroristic threatening and three counts of aggravated robbery. He was sentenced to a total of twenty-three years in the Arkansas Department of Correction.

On appeal he alleges one error: the trial court should have granted a mistrial when a state’s witness mentioned other criminal conduct of Marshall’s that was not the subject of his trial. We find no error.

Marshall was tried before the judge without a jury and reference was made by a police officer to other criminal misconduct. The officer, in testifying, related that Marshall was originally detained because he was suspected of driving a stolen vehicle. At this point Marshall’s attorney moved for a mistrial. The court sustained the objection to the reference to the stolen vehicle and stated the evidence would not be considered. The trial court was correct in its ruling.

The issue raised is very similar to that discussed in a recent decision of ours, Hickey v. State, 263 Ark. 809, 569 S.W. 2d 64 (1978), concurring opinion issued on denial of rehearing on September 5, 1978.

In the Hickey case the trial court, sitting as a jury, permitted, over the defendant’s objection, testimony of a police officer that referred to a previous conviction of Hickey’s. The officer was reading a confession by Hickey when reference was made to the fact that Hickey was on parole for burglary. We found the admission of the evidence to be prejudicial error. The reference to previous misconduct was not admissible under Ark. Stat. Ann. § 28-1001, Rule 404(b) (Supp. 1977).

We rejected the argument that a trial before a judge, sitting as a jury, should be treated differently from a case tried to a jury when the issue of prejudice from this type of evidence is admitted; and the court, overruling a proper objection to inadmissible evidence, presumably considered it.

The difference in this case and the Hickey case is simply that in Hickey the trial judge overruled the defendant’s objection to the reference to prior criminal misconduct; we, therefore, assume that the court considered the evidence. In this case the trial judge sustained the objection to the reference to other misconduct and stated that the evidence would be disregarded.

Therefore, in the absence of any other evidence to the contrary, we find no prejudicial error requiring the conviction of Marshall to be reversed. Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976).

Affirmed.

We agree.

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


text:
    John T. THOMPSON v. CITY OF LITTLE ROCK
    CR 78-72
    570 S.W. 2d 262
    Opinion delivered September 11, 1978
    (Division I)

      William H. Craig, for appellant.

      James M. Duckett, Asst. City Atty., for appellee.
   George Howard, Jr., Justice.

This appeal presents the following question for resolution:

Whether the issuance of a uniform traffic ticket and complaint to a motorist by a police officer, immediately after the motorist is arrested for a traffic violation committed in the presence of the officer, constitutes commencement of prosecution of the alleged offense so as to toll the running of the one year statute of limitation applicable to misdemeanor charges?

THE FACTS

On June 19, 1973, at approximately 9:45 p.m., appellant, John T. Thompson, a resident of Little Rock, Arkansas, was issued a uniform traffic ticket and complaint which charged the appellant with his second offense of driving his vehicle while under the influence of intoxicating liquor, hereinafter referred to simply as D.W.I.

The traffic ticket contains the date of the offense as well as the time, the name and address of appellant as well as his age, date of birth, height and weight, his drivers and vehicle license numbers, Social Security number, the date and time of his court appearance as well as the location of the traffic court. The ticket also designates the weather condition, the condition of the streets at the time the arrest was made, and further designates the law and section number that the charge is based upon.

The ticket also states in clear language the following:

“THE COURT WILL ISSUE A WARRANT FOR THE ARREST OF ANY DEFENDANT WHO IS A RESIDENT OF THIS STATE AND WHO HAS FAILED TO APPEAR TO ANSWER A TRAFFIC SUMMONS DULY SERVED UPON HIM AND UPON WHICH A COMPLAINT HAS BEEN FILED.”

The appellant-defendant was taken to the Little Rock City Jail and subsequently, executed an appearance bond which was also executed by a corporate surety. The appearance bond in relevant part provides as follows:

“John Thompson being in custody, charged with the offense of D W I 2nd and being admitted to bail in the sum of Five Hundred Dollars,. .. undertake that the above named John Thompson shall appear in the Municipal Court of Little Rock, on the 2 day of July 19-to answer said charge, and shall at all times render himself amenable to the orders and process of said court in the prosecution of said charge, ...” (Emphasis added)

On July 13, 1973, as a consequence of appellant’s failure to appear in the Municipal Court on July 2, 1973, a forfeiture was declared on his appearance bond and a warrant for appellant’s arrest for failure to appear and on the D.W.I. charge was issued.

The warrant for the arrest of appellant was later placed in a file designated “Inactive”, but was “Updated” September 30, 1977, when appellant was taken into custody by the Little Rock Police, a period of approximately four years and two months after appellant failed to appear on July 2, 1973, and the issuance of the warrant for his arrest on July 13, 1973. However, the procedure of the Little Rock Police Department in dealing with circumstances of this nature is to advise a defendant, by written communication, of the issuance of the warrant for his arrest as a consequence of his failure to appear. If the individual does not respond to the written communication, a warrant officer of the Little Rock Police Department makes an attempt to serve the warrant at the address of the defendant. If the officer is unsuccessful in serving the warrant, the warrant is placed in a file at the department until such time as the individual is arrested on another charge. Appellant has stipulated that this procedure was in effect in 1973, however, it cannot be established that this procedure was followed in this particular case.

After the warrant was served on appellant on September 30, 1977, appellant was arrested, incarcerated and later released on bail and his trial was scheduled for October 13, 1977. However, on October 6, 1977, appellant filed his motion pursuant to Ark. Stat. Ann. § 41-102(4) to have the Arkansas Criminal Code govern the application of his defense to the prosecution of the charges against him. This motion was granted by the Municipal Court. Appellant also filed his motion to dismiss which is as follows, in relevant part:

“4. That the said Warrant was issued by the Clerk of this Court on July 13, 1973, in excess of four (4) years ago.
“5. That the said Warrant was served upon Defendant on the 30th day of September, 1977, and that no reasonable effort has been made to serve such Warrant from the time of its issuance until September 30, 1977.
“6. That Defendant is a resident of the City of Little Rock and is regularly employed here, and that the Little Rock Police Department, if it had so desired and if a reasonable effort had been made, could have located Defendant and served the said Warrant at any time.
“7. That no trial has been held in this cause and that Defendant has at no time and in no manner waived his right to a speedy trial and that Defendant has at all times stood ready for trial in this cause.”

The Municipal Court denied appellant’s motion to dismiss and entered an order granting an appeal to the Pulaski Circuit Court for review of the issues of law involved.

The Pulaski Circuit Court affirmed the denial of appellant’s motion to dismiss the D.W.I. charge, but reversed the Municipal Court as to the denial of the motion to dismiss the charge of failure to appear, holding that there had been an unreasonable delay in serving the warrant on appellant for that charge.

THE DECISION

Ark. Stat. Ann. § 75-1008 (Repl. 1957 and Supp. 1977), in material part, is as follows:

“(a) Whenever a person is arrested for any violation of this act punishable as a misdemeanor, and such person is not immediately taken before a magistrate as hereinbefore required, the arresting officer may prepare in duplicate written notice to appear in court containing the name and address of such person, the license number of his vehicle, if any, the offense charged, and the time and place when and where such person shall appear in court, and if the officer is a bonded officer he may require such person to post a bail bond and give receipt therefor.
“(b) The time specified to appear must be at least 5 days after such arrest unless the person arrested shall demand an earlier hearing.
“(c) The place specified to appear must be before a magistrate within the township or county to which the offense charged is alleged to have been committed and who has jurisdiction of such offense.
“(d) The arrested person in order to secure release, as provided in this section, must give his written promise so to appear in court by signing in duplicate the written notice prepared by the arresting officer and/or post a bail bond as may be required by the arresting officer. The original of the notice to appear and of the receipt for bail shall be retained by said officers and the copy of each delivered to the person arrested. Thereupon, said officer shall forthwith release the person arrested from custody.
“(e) Any officer violating any of the provisions of this section shall be guilty of misconduct in office and shall be subject to removal from office.”

Rule 4.1 of Arkansas Rules of Criminal Procedure, in relevant part, provides as follows:

“(a) A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed
(ii) a traffic offense involving:
(C) driving a vehicle while under the influence of any intoxicating liquor or drug; ...”

Rule 5.2(a) of Arkansas Rules of Criminal Procedure provides:

(a) A law enforcement officer in the field acting without a warrant who has reasonable cause to believe that a person has committed any misdemeanor may issue a citation in lieu of arrest or continued custody.

Rules 5.3 and 5.4 of Arkansas Rules of Criminal Procedure regarding the form of the citation to be issued by a law enforcement officer pursuant to Rule 5.2(a) are as follows:

“(a) Every citation shall:
(i) be in writing
(ii) be signed by the officer issuing it with the title of his office;
(iii) state the date of issuance and the municipality or county where issued;
(iv) specify the name of the accused and the offense alleged;
(v) designate a time, place, and court for the appearance of the accused; and,
(vi) provide a space for the signature of the accused acknowledging his promise to appear.
“(b) Every citation shall inform the accused that failure to appear at the stated time, place and court may result in his arrest and shall constitute a separate offense for which he may be prosecuted.
“Rule 5.4 Procedure for Issuing Citations.
(a) In issuing a citation the officer shall deliver one (1) copy of the citation to the accused.
(b) The officer shall thereupon release the accused or, if the person appears mentally or physically unable to care for himself, take him to an appropriate medical facility.
(c) As soon as practicable, one (1) copy of the citation shall be filed with the court specified therein, and one (1) copy shall be delivered to the prosecuting attorney.

Ark. Stat. Ann. § 41-104 (Repl. 1977), in material part, is as follows:

“(2) . . . , prosecutions for other offenses must be commenced within the following periods of limitation after their commission:
(c) misdemeanors or violations, 1 year.
“(6) A prosecution is commenced when an arrest warrant or other process is issued based on an indictment, information or other charging instrument, provided that such warrant or process is sought to be executed without unreasonable delay. (Emphasis added)

Rule 28.3(e) of the Arkansas Rules of Criminal Procedure is as follows:

“The following periods shall be excluded in computing the time for trial:
“(e) The period of delay resulting from the absence or unavailability of the defendant. A defendant shall be considered absent whenever his whereabouts are unknown. A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the state for trial.”

Appellant argues that the Little Rock Municipal Court was without jurisdiction to try appellant on the D.W.I. charge inasmuch as the prosecution of appellant for this offense was not commenced until September 30, 1977, the date appellant was arrested pursuant to the warrant issued on July 13, 1973, a period of four years and two months following the issuance of the traffic citation and the execution of the appearance bond scheduling appellant’s appearance in court on July 2, 1973. Thus, appellant further argues, the one year limitation period on misdemeanor cases precludes the Little Rock Municipal Court from trying appellant on the D.W.I. charge.

After reviewing carefully the applicable statutory measures set out in this opinion, we are persuaded that the uniform traffic ticket and complaint, which is simply one document used by the Little Rock Police Department in citing motorists for infractions of the traffic code, is a simplified procedure or process that is issued, after an arrest, informing a motorist accused of the nature and elements of the offense with which he is charged. In addition, the citation, which conforms to all of the requirements delineated in applicable statutory provisions, serves as a means for conferring jurisdiction on the proper traffic court of the matter. We are, therefore, persuaded that prosecution commences upon the issuance of the citation.

To come to any other conclusion, and especially to adopt appellant’s reasoning to the effect that an arrest warrant, in addition to the traffic citation, is a prerequisite for commencing prosecution on a traffic offense would, by increasing the time, paper work and expense, cause great hardship to the City of Little Rock with no benefit to the motorist-defendant.

Under the present procedure, which has statutory sanction, a motorist-defendant, by agreeing to appear voluntarily in traffic court, upon being cited for a traffic violation, is at liberty to leave and resume his mission or journey, and has the option of avoiding a court appearance by paying his fine before the scheduled court appearance. While, on the other hand, if an arrest warrant is deemed essential to the commencement of prosecution, a motorist would, indeed, be required to accompany the officer to the police department in order to be served with an arrest warrant issued by a magistrate, make arrangements for bail, or suffer the inconveniences of being served with an arrest warrant at his home or place of employment for the slightest infraction of the traffic code. Indeed, the present procedure reduces delays, alleviates docket congestion and permits more economical use of the facilities of the police department, traffic courts and the personnel of the prosecuting attorney’s office.

Having concluded that a traffic citation is embraced within the statutory term “other charging instrument” which is required in initiating a prosecution; and it is further clear that appellant was delivered a copy of the citation charging him with D.W.I. immediately following his arrest, the one year limitation on misdemeanor charges is not applicable and consequently, appellant’s argument is rejected.

Finally, appellant argues that his constitutional right to a speedy trial has been violated because of the four year delay between the time the traffic citation was issued and the time that he was arrested in September, 1977, and his case scheduled for trial on October 13, 1977. This argument, likewise, is not persuasive and consequently, we reject appellant’s contention in view of the fact we find, from this record before us, that appellant has not been deprived of any constitutional rights.

It must be remembered that when the police officer cited appellant for D.W.I., a uniform traffic ticket and complaint was prepared by the officer designating the time, date and place of appellant’s trial. Moreover, appellant executed a $500.00 appearance bond wherein appellant agreed to appear in the Little Rock Municipal Court on July 2, 1973, and “to answer said charge, and shall at all times render himself amenable to the orders and process of said court and the prosecution of said charge. ...” It is clear that appellant failed to appear in court for his trial as he had agreed. Moreover, appellant made no effort to offer any reason or excuse for not appearing in court at his scheduled trial. Appellant made no effort to communicate with the police regarding his case. It is further clear that appellant is no stranger to the police or is unfamiliar with courts for the record shows that appellant has been cited before for D.W.I. This record clearly demonstrates that the City of Little Rock offered appellant a speedy trial by scheduling a hearing within five days from the time that appellant was cited for D.W.I.

Affirmed.

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

      Ark. Stat. Ann § 41-102(4) (Repl. 1977) provides, in material part, as follows:
      “A defendant in a criminal prosecution for an offense committed prior to the effective date of this Code may elect to have the construction and application of any defense to such prosecution governed by the provision of this Code. ...”

      The failure to appear charge was lodged against appellant on July 13, 1973, and according to the record, appellant first received knowledge of this charge on September 30, 1977.