text:
    Bobbie Sue JANNI v. Samuel Wayne JANNI
    CA 80-394
    611 S.W. 2d 785
    Court of Appeals of Arkansas
    Opinion delivered February 18, 1981

      Hardin, Jesson & Dawson, for appellant.
    No brief for appellee.
   Lawson Cloninger, Judge.

This divorce action was filed by appellant Bobbie Sue Janni against appellee Samuel Wayne Janni, asking for absolute divorce, custody of the couple’s three children, and for child support. The chancellor awarded appellant a divorce and custody of the children and stated that he would make no specific award with reference to child support, but rather would allow the matter to remain open and permit the amount to be determined at a later date.

The appellant’s only point for reversal is that the trial court erred in failing to enter an order directing the appellee to pay a reasonable amount of child support and attorney’s fee. She states that the court found it did not have jurisdiction to enter personal orders against the appellee, and she urges this Court to declare that the chancellor does have personal jurisdiction.

Appellant and appellee were married in 1969 when appellee was in military service at Ft. Chaffee, Arkansas. They lived together in Lawton, Oklahoma, and then for three or four years they lived in Fort Smith, Arkansas. The couple moved to the state of Michigan in 1973 and lived together there until they separated on November 9, 1978. Appellee asked appellant to leave the home and he knew that she and the children would be going to her parents’ home in Fort Smith. Appellee remained in Michigan, and has not been to the state of Arkansas since the separation.

Appellant’s divorce proceeding was filed on November 26, 1979- Service was obtained upon appellee under the provisions of Ark. Stat. Ann. § 27-339.1 (Repl. 1979), and Ark. Stat. Ann. § 27-2503 (Repl. 1979), by appellants attorney writing appellee a letter sent by certified mail, enclosing a verified copy of the complaint and summons. The relevant portions of § 27-339-1 provide that, “Any cause of action arising out of acts done in this state by an individual in this state . . . may be sued upon in this state, although the defendant has left the state, by process served upon or mailed to the individual . . . outside the state.” That statute further states that the person committing the act shall be deemed to have appointed the secretary of state as his agent for service. Ark. Stat. Ann. § 27-2503 (Repl. 1979), provides that when the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made by any attorney for a party. The notice given by appellant’s attorney in this case was sufficient under § 27-339.1 to constitute service on the appellee in “any cause of action arising out of acts done in this state,” or it was sufficient under Ark. Stat. Ann. § 27-339 (Repl. 1979) to constitute constructive service.

When appellee did not appear or answer in the trial court", an attorney ad litem was appointed by the court to write appellee at his home in Saginaw, Michigan, advising him of the date set for hearing on the questions of divorce and child support. Appellee did not plead or make any appearance in the trial court, and has filed no pleading or brief in this Court.

Section 27-339.1, supra, provides that any cause of action arising out of acts done by an individual in this state may be sued upon here although the defendant has left the state. The statute is not limited to tort actions, but it specifies any cause of action. Bunker v. Bunker, 261 Ark. 851, 552 S.W. 2d 641 (1977).

In the Bunker case, Mrs. Bunker filed her action for divorce in Arkansas and obtained service on Mr. Bunker, who resided in Louisiana, pursuant to § 27-339.1. The Bunkers were living together in Arkansas at the time of their separation, when Mr. Bunker left Arkansas and apparently changed his domicile to Louisiana. In holding that the trial court had personal jurisdiction over Mr. Bunker, the court said:

We see no good reason for not recognizing Arkansas’s jurisdiction in this case. Arkansas was the Bunkers’ last matrimonial domicile. It is the place where Bunkers’s asserted wrongful conduct created the cause of action for divorce and alimony. It has continued to be the residence of Mrs. Bunker and the children, where their living expenses must be paid. It is presumably the residence of the witnesses who will be called to testify. Finally, Bunker appears to have left this state voluntarily, creating the possibility of hardship if that conduct on his part deprives Mrs. Bunker of her right to bring her suit in Arkansas. . .

Appellant urges this Court to extend the reasoning of the Arkansas Supreme Court in the Bunker case to the facts in this case. This we must decline to do. There are parallels to be drawn between Bunker v. Bunker and the case now before the Court, but there are two striking differences: (1) In the Bunker case, the alleged acts of the husband occurred in this state, whereas in the instant case, the acts of the husband occurred in Michigan, and (2) in the Bunker case the last matrimonial domicile of the parties was in this state, whereas in the instant case it was in Michigan. Appellant’s reliance upon the case of International Shoe Co. v. Washington, 326 U.S. 310 (1945) is not well placed in this case. The Arkansas Supreme Court in the Bunker v. Bunker case, cited International Shoe Co. v. Washington, to support the proposition that there was no longer a constitutional limitation upon a state’s jurisdiction in a case like Bunker v.. Bunker. It is not necessary to consider the constitutional issue in this case, because our statutes do not purport to extend personal jurisdiction over non-resident defendants such as appellee. The state, through legislation, has chosen to exercise its jurisdiction over resident and nonresident defendants who commit acts in this state giving rise to a cause of action. The appellee in the case now before the Court committed no act in this state giving rise to appellant’s cause of action, although he may have committed acts which caused harmful consequences in this state.

It is only a short step to extend the reasoning in Bunker v. Bunker to the instant case, as contended by appellant, but it is a step that this Court cannot take, and we find that the trial court cannot enter a personal judgment against appellee.

Affirmed.

Fogleman, Special Judge, joins in this opinion.

Corbin, J., not participating.


source: Caselaw Access Project

author: Tom Glaze, Judge.

license: Public Domain

text:
    Thurman BARKER v. Ruth BARKER
    CA 80-387
    611 S.W. 2d 787
    Court of Appeals of Arkansas
    Opinion delivered February 18, 1981

      Ronald L. Griggs, for appellant.

      William 1. Prewett, for appellee.
   Tom Glaze, Judge.

This case arises from a post-divorce action in which the appellee filed a motion, contending appellant was in contempt of the Chancery Court’s divorce decree for his failure to pay certain debts which were a part of the Court’s order. The parties were divorced on April 26, 1979, and each party was directed by the Court to be responsible for various debts that they incurred during the marriage. The debts assigned to the appellant were balances owed on a 1975 Ford pickup, a 1978 Mercury and a bass boat and motor, all of which were awarded him by the Court. Appellee was a co-obligor on a bank note which represented monies borrowed for the purchase on the boat and motor. Appellee was also an employee of the bank from which the loan on the boat and motor was obtained.

On June 22, 1979, appellee filed her motion citing appellant for contempt, alleging he refused to pay the indebtedness owed on the bass boat and motor. On June 28, 1979, appellant filed a petition in bankruptcy which listed, among other debts, the obligations the Court ordered him to pay in the April 26, 1979 divorce decree. The Bankruptcy Court adjudged appellant a bankrupt and entered its order of discharge on October 5, 1979- On March 29, 1980, the Chancery Court conducted a full hearing on appellee’s motion for contempt and held appellant in contempt of its prior order. The Court found that the bankruptcy order of discharge did not discharge the appellant’s obligation imposed by the Chancery Court decree to hold the appellee free and harmless on the bank note signed by the parties in acquiring the boat and motor. The Court entered its order on May 12, 1980, and ordered further that appellant reimburse appellee $1,600 that she had paid on the bank note and directed that he pay appellee the amount of the future monthly payments due on the note until the note is paid in full. Appellant appeals this adverse ruling.

The appellant first argues that the debt owed on the bass boat and motor is not maintenance or alimony and is dis-chargeable in bankruptcy. Thus, he contends that since the debt is dischargeable in bankruptcy, the Chancery Court cannot, therefore, compel him to be responsible for the debt. During the period with which we are concerned, 11 U.S.C. § 35(a)(7) provided in substance that an obligation was not dischargeable in bankruptcy if it was for alimony or for the support of a divorced spouse or a child. Arkansas law must be resorted to in order to determine what constitutes alimony, maintenance or support. Rule v. Rule, 612 F. 2d 1098 (8th Cir. 1980) and In Re Waller, 494 F. 2d 447 (6th Cir. 1974). Neither appellant nor appellee cite any Arkansas cases on the issue of whether our State considers an indebtedness such as the one before us an award of alimony, maintenance or support, or merely a division of property. Of course, if the debt is a division of property, it is dischargeable in bankruptcy. In Re Waller, supra.

The issue presented appears to be one of first impression in Arkansas. Appellant cites and relies on the case of Fife v. Fife, 1 Utah 2d 281, 265 P. 2d 642 (1954) wherein the Utah Supreme Court held that an order directing the husband to pay the claims of creditors on jointly acquired property awarded the wife by an annulment decree was not alimony. The Utah Supreme Court, however, in Erickson v. Beardall, 20 Utah 2d 287, 437 P. 2d 210 (1968) greatly limited any precedential value Fife might have had by pointing out that the case involved an annulment, where there is usually no right of support or alimony. The facts in Erickson are not dissimilar to those at bar. The former wife initiated a proceeding against her former husband to compel him to pay certain debt obligations that he was ordered to pay by their divorce decree. He contended that the debts were discharged in bankruptcy, and the former wife contended the debts were maintenance or support and, therefore, excepted by the bankruptcy court. The Court in Erickson held that the decree which required the former husband to pay the debts was support and maintenance, and in so holding stated:

... it is the duty of the court to look to substance rather than to form. This is especially true where rights and responsibilities with respect to the family relationship are being dealt with. It is no less true here because this suit was initiated as a separate proceeding to enforce obligations of the divorce decree. . . . We give deference to the advantaged position and prerogatives of the trial judge as the finder of the facts; allow him considerable latitude of discretion as to the orders made; and we will not upset his judgment and substitute our own unless it clearly appears that he abused his prerogatives.

In the case at bar, the Chancellor who heard and decided the divorce between the parties is the same Chancellor who, in the post-divorce contempt proceeding, held the debt ordered paid by appellant was support or maintenance. In accordance with Ark. Stat. Ann. § 34-1211 (Repl. 1962) which was controlling at the time, the trial judge entered a divorce decree touching the alimony of the wife and care of the parties’ child as the circumstances and the nature of the case reasonably warranted. The Chancellor, as reflected in the divorce decree, directed appellant to pay child support and the three debts, including that incurred on the bass boat and motor, and he further ordered the appellee to be responsible for a debt owed on furniture. Other specific and named obligations were ordered paid out of the parties’ proceeds from the sale of their home. All of these matters were correctly considered by the Chancellor under § 34-1211 above and it is logical to infer that each item assigned and made responsibilities of each party was interrelated. In fact, there was sufficient evidence in the record to show that when appellant failed to pay the bass boat and motor debt, appellee lost her job at the bank because it required her to pay the note from which appellant was discharged. The appellee was then compelled to work two jobs to meet this debt in addition to her other obligations. Moreover, the appellee, in this same post-trial contempt proceeding, is also requesting the Court to order appellant to pay an increase in child support payments so that she can make ends meet. The Chancellor, however, would not decide if appellee is entitled to an increase in child support until the issue involving the boat and motor debt is decided on appeal. Again, it is clear the Chancellor considered all awards and responsibilities set forth in the April 26, 1979, divorce decree as interrelated.

We feel there was sufficient evidence in the record for the lower court to decide the boat and motor debt was maintenance and support, and we cannot say the Chancellor’s findings were clearly erroneous or against the preponderance of the evidence. Rule 52(a) of the Arkansas Rules of Civil Procedure.

The appellant next contends that he cannot be held in contempt of court for failure to pay an otherwise dis-chargeable debt. Of course, we have already held the lower court decided the boat and motor debt to be support or maintenance, and, in doing so, the debt is not dischargeable. Thus, the only remaining issue is whether the decree before the Chancellor was enforceable by way of a contempt proceeding, and, if so, whether the evidence supports the trial court’s decision finding appellant in contempt. We have no hesitancy in finding in the affirmative.

Our courts of equity have the power to enforce decrees and orders for alimony and maintenance by contempt proceedings. Ark. Stat. Ann. § 34-1212 (1979); Thomas v. Thomas, 246 Ark. 1126, 443 S.W. 2d 534 (1969). It is also settled law that before appellant can be held in contempt for failure to pay alimony or support, it must be justified only on the ground of willful disobedience of the trial court’s orders. Feazell v. Feazell, 225 Ark. 611, 2845 S.W. 2d 117 (1956).

With these legal principles in mind, we must examine the record to determine if the evidence supports the Chancellor’s decision that appellant was in contempt. The appellant failed to make any payments on the boat and motor debt after the divorce decree was entered. Yet, appellant admits that after the divorce, he received approximately $5,100 from the sale of a truck and the parties’ home. In addition, appellant testified that he earned a salary in 1979 in excess of $19,000. In this same year, appellant filed for bankruptcy and was discharged from all his indebtedness in October, 1979-The course of events in 1979 regarding appellant’s bankruptcy which transpired is significant. Appellant filed for bankruptcy one week after appellee filed action to cite him for contempt for failure to pay the boat and motor debt. The appellant also testified that he later reaffirmed his debt on his Ford pickup and his obligation to Lion Oil Credit Union, an obligation connected with his employer. The only debt appellant was ordered by the court to pay which he chooses not to liquidate is the boat and motor loan on which appellee is a co-obligor. There is substantial evidence in the record to support the trial court’s decision that appellant is in contempt of its prior orders, and we affirm that decision.

The appellee requests an additional attorney’s fee in connection with services rendered on this appeal, and we grant a fee in the sum of $400 plus the costs incurred on appeal.

Affirmed.

Fogleman, Special Judge, joins in ths opinion.

Corbin, J., not participating.


text:
    Marshall A. HUMPHRIES d/b/a FARMERS GULF STATION and FARMERS AUTO PARTS and BODY SHOP v. Wilbur BRAY
    CA 80-427
    611 S.W. 2d 791
    Court of Appeals of Arkansas
    Opinion delivered February 18, 1981

      Butler, Hicky & Hicky, for appellant.

      Mobley & Smith, for appellee.
   Tom Glaze, Judge.

In this Workers’ Compensation case, the appellant, Marshall A. Humphries, is the employer of the claimant, Wilbur Bray, and the sole proprietor of Farmers Gulf Station (Gulf) and Farmers Repair Shop (Repair). In addition, the appellant is the sole shareholder, president and manager of Farmers Auto Supply, Inc. (Supply, Inc.) of Earl, Arkansas. The appellee, Wilbur Bray, was employed by Gulf, and four other employees worked for appellant’s businesses: Gulf, Ollie Cox; Supply, Inc., Linda Shidler and Ronald McNair; Repair, Walter Baker. During his employment, the appellee was airing a tire when the rim of the tire blew off and injured the appellee. He suffered injuries which consisted of multiple fractures of the arms, legs, ribs and shoulder. Appellee was hospitalized for eight weeks and was released to return to work in April, 1977.

The primary issue in this appeal is whether the appellee’s job was within the definition of “employment” as set out in the Workers’ Compensation Act. At the time of the appellee’s injury, Ark. Stat. Ann. § 81-1302(c) (Repl. I960) provided as follows:

“Employment” means:
(1) Every employment carried on in this State in which five (5) or more employees are regularly employed by the same employer in the course of business or businesses...

The Administrative Law Judge concluded that the appellant had five employees at the time of the injury herein, and thus, the appellee was engaged in covered employment. The Judge’s conclusions were based upon the finding that three of the businesses, including Supply, Inc., were operated and controlled by the appellant, and notwithstanding their legal status, should be combined for the purpose of determining covered employment. In so finding, the Judge decided the correlative issue that employees of a corporate entity held and controlled by a single shareholder may be combined with employees of the shareholder’s other enterprises. In view of this finding, the Administrative Law Judge determined the appellant was the same employer under § 81-1302(c) above for five employees who worked for appellant’s separate businesses. On appeal the Full Commission found the opinion of the Administrative Law Judge to be well reasoned and thorough and the Commission adopted and affirmed the Judge’s opinion.

In reviewing the Commission’s decision, the pivotal issue is whether it correctly held that the two employees who worked for Supply, Inc. could be added to the other three employees hired by appellant in his Repair and Gulf businesses. Neither appellant nor appellee cite any Arkansas Workers’ Compensation cases that address this issue. In contending that a corporation should be treated as a separate employer, appellant does cite cases in other jurisdictions which he argues are similar to the facts and issues before us. In this connection, appellant relies on the case of Crall v. Hockman, 460 S.W. 2d 688 (Mo. 1970) wherein the Missouri Supreme Court held that a partnership was a separate employing entity under the Missouri Workers’ Comepnsation Act, and that the employees of a partnership should not be attributed to a member of the partnership for purposes of determining whether the individual partner was an employer under the Act. [To this same effect, see Kalson v. Industrial Commission, 248 Wis. 393, 21 N.W. 2d 644 (1946).] Based on the decision in Crall, appellant reasons and contends that if the employees of a partnership are not to be counted, then it follows that employees of a corporation should not be counted.

In another jurisdiction, we find the case of Saf-T-Cab Service v. Terry, 167 Md. 46, 172 A. 608 (1934), which appears to be closer in point than the Crall or Kalson cases. In Terry, the Maryland Court of Appeals held in a Workers’ Compensation claim that a driver served as an employee of two corporations at the same time. The Motor Cab Company, Inc. owned the cabs used in the business, and Saf-T-Cab Service, Inc. was concerned with their operation. The Court’s holding was based upon the intimate relationship of the two corporations and the joint interest in the undertaking which the claimant’s employment served to promote. The record before the Court in Terry attributed no corporate purpose to either corporation except the prosecution of the taxicab enterprise in which the claimant was employed by the same corporation executive to whom the management of both corporations was committed.

As was true in Terry, the evidence before us indicates a close relationship and association between appellant’s three businesses: Gulf, Repair, and Supply, Inc. In fact, it is almost impossible to distinguish at times one business from the other. Linda Shedler, a bookkeeper, testified that she worked for the appellant at the time the appellee was injured, and at that time there were three accounts: Gulf; Supply, Inc.; and Farmers Body Shop. All of appellant’s businesses were at the same location and in the same building. Shidler kept books for all of these commercial enterprises, and she stated that her salary was paid from any one of the businesses or sometimes by the appellant himself. She testified that money was moved from one account to another so that the employees could be paid from an account with sufficient funds. She prepared payroll slips for the five employees named earlier, viz: Ollie Cox, Walter Baker, Ronald McNair, the appellee and herself.

The appellant testified that the payroll slips did not indicate which business an employee worked for, and the slips were identical and gave only the employee’s name and the payroll information. Further, the Wage and Tax Statement for the appellee for 1975 shows that the three businesses were not separate, listing the employer’s name on the W-2 as: “Farmers Auto Parts, Repair and Gulf Station.” The appellant testified that he incorporated the auto supply store because it was a requirement of Parts, Inc. of Memphis, who financed part of the business. It was incorporated in June, 1973, but the charter was revoked three and one-half years later, sometime after appellee’s injury. At the time of the injury, a Coca Cola sign in front of the business read: “Farmers Gulf and Auto Parts,” with no reference to its incorporation. Moreover, there was no separate listing in the Earle telephone directory for Supply, Inc. Rather, each of the three businesses had an extension telephone using the same number.

There was conflicting testimony as to whether it was ever made known to the employees of any of appellant’s businesses or the public that the auto supply business, Supply, Inc., had been incorporated. Our Supreme Court has held that the relationship of employer and employee is presumed to continue for a reasonable time after a sale of the business is made without the knowledge of the employee. Ledbetter v. Adams, 217 Ark. 329, 230 S.W. 2d 21 (1950). In Ledbetter, the Supreme Court concluded that a transfer of three of the cab company’s five cabs to another was a subterfuge designed to defeat the purpose of the Workers’ Compensation Act by reducing the number of employees below the required number. The Court went on to say that had the transfer been in good faith that the original employer would have remained liable under the Act until there has been a reasonable time, or course of events, for knowledge of the change of employer to be brought home to the employee.

After a careful study of the evidence before the Workers’ Compensation Commission, we conclude that there was substantial evidence in the record to find that the corporation was the alter ego of the appellant, and that it was so managed and controlled by him as to constitute a sole proprietorship. The conditions under which the corporate entity may be disregarded or looked upon as the alter ego of the principal stockholder vary according to the circumstances of each case. This doctrine of piercing the corporate veil is founded in equity and is applied when the facts warrant its application to prevent an injustice. Aetna Casualty and Surety Company v. Stover, 327 F. 2d 288 (8th Cir. 1964). We feel that its application in the instant case was warranted.

We are aware that the rule of piercing the fiction of a corporate entity should be applied with great caution. We also recognize that a corporation and its stockholders are a separate and distinct entity even though the stockholder may be the owner of a majority of the stock in a corporation. Banks v. Jones, 239 Ark. 396, 390 S.W. 2d 108 (1965). If we were faced with a corporation that complied with the principles of corporate law both as to form and practice, we would hold that Supply, Inc. was not the same employer as the appellant and reverse the award of benefits to the appellee. However, under the set of facts in this case, Supply, Inc. is found to be one of the appellant’s businesses and may be considered in determining the number of employees of the appellant.

Affirmed.

Corbin J., not participating.

       Throughout the record Farmers Auto Supply, Inc. of Earle, Arkansas, is also referred to as Farmers Auto Parts and Supply or Farmers Auto Parts. For purposes of simplicity, the name Supply, Inc. has been substituted in this opinion whenever the name of the business is mentioned.

       Farmers Body Shop was a business located in the same building where appellant’s enterprises were, but was operated by an independent contractor, and therefore, was not considered in determining the number of employees.


author: Richard B. Adkisson, Chief Justice.

text:
    Annette MILLER v. Vanessa Dawn TIPTON et al
    80-262
    611 S.W. 2d 764
    Supreme Court of Arkansas
    Opinion delivered February 23, 1981

      Henry & Walden, by: Troy Henry, for appellant.

      Reid, Burge & Prevallet, by: Donald E. Prevallet, for appellees.
   Richard B. Adkisson, Chief Justice.

The collision occurred at the intersection of East Nettleton Avenue and State Highway No. 1 in the city limits of Jonesboro. It is stipulated that each of the intersecting streets contained four lanes of traffic, two going each way, with an additional left-turn lane. Although all lanes for each street had signal heads in place at the time of the occurrence, the signals controlling the left-turn lanes had recently been installed and were inoperable.

Appellant’s son, Stephen Carl Miller, was traveling west on East Nettleton Avenue in the left-turn lane just prior to the collision. And, it is undisputed that the traffic signals controlling the two through lanes on East Nettleton Avenue were red at this time. The collision occurred when appellee, traveling north in the curb lane of State Highway No. 1, struck appellant’s automobile which was protruding approximately six feet into that lane.

Appellant relies upon two points for reversal on appeal: (1) it was error to grant appellee’s motion for directed verdict, and (2) it was error for the court to exclude witness Cathy Cantrell’s description of the speed of appellee’s automobile.

First, we consider the propriety of the court directing a verdict for the appellee. To determine whether there was sufficient evidence from which the jury could have found for the plaintiff, we review the testimony in the light most favorable to the party against whom the verdict was directed and will disregard any conflicting testimony which could have been rejected on the basis of credibility.

Officer McDaniel of the Jonesboro Police Department principally testified as to the physical characteristics of the intersection at the time of the accident. He stated that there were utility poles, ten inches in diameter, and several sign posts located in a raised median to the left of the appellant’s vehicle as it faced west in the left-turn lane of East Nettleton. McDaniel stated, however, that he did not get into his police car and sit like Stephen Miller sat to determine whether or not a person could see through those poles. He further said it was clear, dry, and still daylight at the time of the accident.

The appellant’s son, Stephen Carl Miller, testified to the events leading up to the collision. He said he pulled up into the left-turn lane and stopped after seeing that the through-lane lights were red. He then noticed the signal controlling his turn lane was not functioning and, assuming that it would normally be his time to turn, started “creeping ... slowly ... looking past the utility poles that obscured” his vision. He looked up and down the road and, seeing no traffic looking up Young Road, looked to the left to see if there were any cars that could hit him from that direction. Miller stated that as he was looking “All I could see [immediately preceding the crash] ... was a blur and a grill and red paint,” which was Miss Tipton’s car. He said that appellee was in her proper lane of traffic speeding down the road, and “going too fast, not normal, wasn’t normal at all.”

The only disinterested eyewitness to the accident was Cathy Cantrell. She first testified that she had never met either of the parties. She stated that, at the time of the occurrence, she was stopped in the east-bound left-turn lane on East Nettleton facing Stephen Miller’s car. She saw Miller pull up and start to go; then she saw him stop and get hit shortly thereafter. She stated that appellee, Tipton, was traveling in the curb lane, and made no attempt to avoid the collision. She said Tipton was going over 45 miles an hour, and then stated, “45 isn’t very fast ... it’s down there in the low numbers; she was moving on.”

In O’Brian v. Primm, 243 Ark. 186, 419 S.W. 2d 323 (1967), we quoted from St. Louis Southwestern Railway Co. v. Farrell, Admx., 242 Ark. 757, 416 S.W. 2d 334 (1967), where we stated the test for reviewing the correctness of directed verdicts:

[A] directed verdict for the defendant is proper only when there is no substantial evidence from which the jurors as reasonable men could possibly find the issues for the plaintiff. In such circumstances, the trial judge must give to the plaintiff’s evidence its highest probative value, taking into account all reasonable inferences that may sensibly be deduced from it, and may grant the motion only if the evidence viewed in that light would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned by the jury.

We have defined substantial evidence as evidence which is “of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture.” Jones v. State, 269 Ark. 119, 598 S.W. 2d 748 (1980).

After the testimony of these witnesses, appellant submitted an instruction under Ark. Stat. Ann. §75-601 (Repl. 1979) requesting the court to instruct the jury that the speed limit was 30 miles per hour on State Highway No. 1. The court correctly refused to give this instruction since there was no proof as to the speed limit. The court erred, however, in granting defendant’s motion for a directed verdict, there being substantial evidence from which the jury could find for the plaintiff.

The second argument raised for reversal is the trial court’s rejection of eyewitness Cathy Cantrell’s testimony that appellee was “going like a bat out of hell” prior to the collision. The trial court correctly excluded this testimony from the jury. It was speculative and was not helpful to a clear understanding of the testimony or to a determination of a fact in issue. Rule 701, Uniform Rules of Evidence, Ark. Stat. Ann. §28-1001 (Repl. 1979).

Reversed and remanded.


text:
    Hezile EARL, Jr. v. STATE of Arkansas
    CR 80-67
    612 S.W. 2d 98
    Supreme Court of Arkansas
    Opinion delivered February 23, 1981

      Robert L. Lowery, for appellant.

      Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

On January 18, 1979, appellant, Hezile Earl, Jr., George Burton, and Eugene Walker were jointly charged in Pulaski County Circuit Court with the capital felony murder and aggravated robbery of Ray Wood at the R & I Garage in North Little Rock, Arkansas.

After the court granted appellant’s motion for severance, he was the first to be tried on July 28, 1979. He was convicted and sentenced to life without parole for capital felony murder, and to 50 years for aggravated robbery.

Where life imprisonment or death was imposed in the court below, the Supreme Court shall review the entire record for errors prejudicial to the right of the appellant. Rule 36.24, Ark. Rules Crim. Proc., Vol. 4A, Ark. Stat. Ann. (Repl. 1977). To facilitate this review, Rule 11(f), Rules of the Supreme Court, Vol. 3A, Ark. Stat. Ann. (Repl. 1979) was promulgated:

[T]he appellant must abstract all objections that were decided adversely to him in the trial court together with such parts of the record as are needed for an understanding of the objection. The attorney general will make certain that all objections have been so abstracted and will brief all points argued by the appellant and any other points that appear to him to involve prejudicial error.

This means that both the counsel for appellant and counsel for the State must examine the record page by page to be certain that all the objections are brought to the court’s attention. For many years the members of this court made that examination in capital cases before the rule was amended to read as it does now. Curry v. State, 270 Ark. 570 (1980). Appellant’s points to be relied on will be addressed as they appear in his brief. Some of the points will be consolidated for consideration by the court since the issues of law and fact are common to each.

THE COURT PROPERLY DENIED APPELLANT’S MOTION TO QUASH THE INFORMATION ON THE GROUND THAT THE STATUTES ARE UNCONSTITUTIONAL.

Appellant argues that Ark. Stat. Ann. § 41-1501(1) (a) (Repl. 1977) and Ark. Stat. Ann. § 41-1502(1) (a) overlap and are, therefore, unconstitutionally void for vagueness. It is true that the statutes overlap. The capital murder statute requires proof of the commission or attempt to commit at least one of seven specific felonies. The first degree murder statute is violated by proof of the commission or attempt to commit any felony, which we have held includes the seven mentioned in the capital murder statute. These statutes are not vague, since they clearly set out what acts are prohibited. We find no constitutional infirmity in the overlapping of the two sections because there is no impermissible uncertainty in the definition of the offenses. Cromwell v. State, 269 Ark. 104 (1980).

THE COURT; DID NOT ERR IN DENYING APPELLANT’S MOTION FOR FUNDS FOR AN EXPERT WITNESS.

Appellant contends that the trial court’s denial of funds to the defendant for purposes of employing a psychologist (to prove his mental condition at the time of the alleged crime as it related to issues of guilt and mitigating circumstances at trial) “deprived appellant of effective assistance of counsel and of due process of law in violation of the Constitution of the United States and of the State of Arkansas.” This contention is without merit.

In Andrews v. State, 265 Ark. 390, 578 S.W. 2d 585 (1979), we held that the defendant did not have the right to appointment of a psychiatric expert to assist in his defense under the Sixth Amendment to the United States Constitution. In Hale v. State, 246 Ark. 989, 440 S.W. 2d 550 (1969), we found no denial of due process or equal protection of the laws under our statutory procedure whereby a psychiatric examination is provided by the staff of the state hospital"

THE COURT DID NOT ERR IN ADMITTING INTO EVIDENCE TWO PHOTOGRAPHS OF THE VICTIM.

Only two photographs of the victim lying on the floor of his repair garage were admitted, while others were excluded as being “more inflammatory than informative.”

A photograph is admissible when it tends to corroborate the testimony of a witness, shows the nature and extent of the wounds or the savagery of an attack, or is useful in enabling a witness to better describe objects portrayed or the jury to better understand the testimony. Davis v. State, 246 Ark. 838, 440 S.W. 2d 244 (1969); Perry v. State, 255 Ark. 378, 500 S.W. 2d 387 (1973); Witham v. State, 258 Ark. 348, 524 S.W. 2d 244 (1975).

Appellant asserts that the prejudicial nature of these photographs is not outweighed by any relevancy they may have had when tested by Rule 403, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979).

Under Rule 403, the weighing of these opposing factors lies within the sound judicial discretion of the trial court. We find no abuse of discretion in this case. See Gruzen v. State, 267 Ark. 380, 591 S.W. 2d 342 (1979).

THE COURT ERRED IN PERMITTING CROSS-EXAMINATION AS TO EVIDENCE NOT FURNISHED ON DISCOVERY.

Appellant argues on appeal that the trial court erred in allowing the State to cross-examine him regarding a statement he allegedly made to Prairie County Sheriff Mike Grady. The State failed to disclose this alleged statement after appellant had filed a timely motion for discovery under Rule 17, Ark. Rules Crim. Proc., Vol. 4A, Ark. Stat Ann. (Repl. 1977).

On May 16, 1979, appellant filed two motions: a motion “to suppress all statements obtained from defendant by the State” alleging they were involuntary and were obtained in violation of defendant’s rights under the Constitution of the United States and the State of Arkansas; and a motion for discovery requesting “a true, accurate, and complete copy of any and all written or recorded statements and the substance of any oral statements made by the defendant or a co-defendant.”

On May 21, 1979, the State responded to appellant’s discovery request by stating: “[0]n or about May 7, 1979, counsel for defendant was given access to the State’s file at which time counsel for defendant copied ... the entire contents of this file.”

On July 24, 1979, a Denno hearing was held at which the trial court determined the voluntariness of certain taped and typed statements given by appellant to North Little Rock detectives Thorne and Lamberson at the Prairie County Jail on January 11, 1979- However, the State made no mention at this hearing of an undisclosed statement that appellant had allegedly given on the same morning to Sheriff Grady of Prairie County.

During the trial, appellant took the stand in his own defense and denied having voluntarily made any inculpatory statement to anyone regarding this crime. During cross-examination, he was asked by the State if, after his confession to Thorne and Lamberson, he told Sheriff Mike Grady that he felt a lot better after getting that off his chest. At that time counsel for the appellant stated: [T]he defendant wants the record to reflect that the defendant has never been informed of any such statement as would be a response to the question just asked by the prosecutor concerning what the defendant might have said to Mike Grady and we move for a mistrial.” This was denied.

Later, in the State’s rebuttal, Sheriff Grady testified over the defense’s objection that appellant had stated to him before leaving the jail on the morning of January 11, that “he was glad that he had it off his chest.”

Rule 17.1, Ark. Rules Crim. Proc. states: “[T]he prosecuting attorney shall disclose to the defense counsel, upon timely request, ... any written or recorded statements and the substance of any oral statements made by defendant.

Here there is no question that a “timely request” was made by the defense, but it is not clear whether the State furnished the defense the alleged inculpatory statement by the defendant as requested.

The appellee asserts that the use of appellant’s statement for use of impeachment of Sheriff Grady was proper and cites Spillers v. State, 268 Ark. 217, 595 S.W. 2d 650 (1980) as authority therefor. However, the issues were not the same. Here the objection is based on the prosecutor’s failure to furnish this statement as requested under the Ark. Rules of Criminal Procedure.

The “open-file policy” of the Pulaski County Prosecuting Attorney’s Office may be a time saver for both the State and the defense; however, as here, it often results in the court being unable to determine whether discovery has been complied with under the Arkansas Rules of Criminal Procedure.

There is no doubt about the timeliness of the request for the information, about the State’s obligation to furnish the information, or about the prejudice resulting to defendant from use of such information in cross-examination, in rebuttal, and again in closing argument. If our discovery rules are to be meaningful, they must be complied with where, as here, a timely request is made, there is no finding of compliance by the State, and there is resulting prejudice to the defense. See Williamson v. State, 263 Ark. 401, 565 S.W. 2d 415 (1978).

THE STATE IS REQUIRED TO CALL MATERIAL WITNESSES AT A DENNO HEARING.

Appellant argues that the State did not meet its burden of proving the voluntariness of his confession since they failed to call Sheriff Grady as a material witness. Sheriff Grady accompanied co-defendant Burton, after his confession, from the interview room back to the cell; and then took appellant out of the cell and delivered him to the interview room. Appellant testified at the Denno hearing, that during this exchange of prisoners:

[M]ike Grady came back and got George out of the cell and took George and talked to him for at least forty-five minutes or close to an hour. Then, after they got through talking with George, Mike Grady came and he said — brought George back. George was — he was crying. He was all bound up, you know, and I asked him what was the matter with him. And he said that one of them detectives had hit him in the stomach with a belt and he had a scar on his face. And so, they — Mike Grady was talking to me about that I had to go in there and talk — he said the detective just wanted to question me ...

Appellant argues that Sheriff Grady was a material witness who could corroborate appellant’s testimony as to Burton’s statement and physical condition immediately after Burton left the interview room and just before appellant was taken to the interview room. Appellant testified that the detectives extracted his confession by verbal threats and by one menacingly hitting a big belt in his hand.

Co-defendant Burton was called as a witness for the defense at the Denno hearing but invoked the Fifth Amendment as to all questions. The defense counsel pointed out to the court the close proximity in time of both Burton’s and appellant’s statements and indicated that Burton’s testimony would either corroborate or negate “part of the testimony that Mr. Earl has given.” The defense counsel then asked if Mr. Grady was going to be present to testify, to which the prosecutor responded, “He is on standby.” Defense counsel then stated: “At this stage, we would object to any voluntariness of the statement, because there has been no showing that he [appellant] originally had been in lawful custody. And, apparently, Mr. Grady was. fairly close to the taking of these two statements, enough to warrant his presence.”

The prosecution did not call Sheriff Grady as a witness at the Denno hearing. And, it is undisputed that in-custodial statements of defendants are presumed to be involuntary and the State has the burden of proving their voluntariness. Wright v. State, 257 Ark. 264, 590 S.W. 2d 15 (1979); Giles v. State, 261 Ark. 415, 549 S.W. 2d 479 (1977);Hileman v. State, 259 Ark. 567, 535 S.W. 2d 56 (1976). When an accused offers testimony that his confession was induced by violence, threats, or coercion, it is incumbent upon the State to call all material witnesses who were connected with the contested confession or give an adequate explanation for their absence at the Denno hearing. Northern v. State, 257 Ark. 549, 518 S.W. 2d 482 (1975 v. Bushong v. State, 267 Ark. 113, 589 S.W. 2d 559 (1979).

Sheriff Grady, we think, was a material witness since his testimony would have reflected on the state of mind of the defendant at the time of entering the interview room by corroborating or negating the appellant’s testimony concerning co-defendant Burton. Also, arguábly, Sheriff Grady was a participant to the coercion by allegedly telling the appellant he had to “go in there and talk.”

Therefore, since the State failed to call a material witness at the Denno hearing, it did not sustain its burden of proof as to the voluntariness of the confession.

PLEA BARGAINING IS ALIEN TO TRIALS BY JURY.

Appellant claims that it was error for the State to be allowed to question co-defendant George Burton in regard to any plea bargaining efforts. During cross-examination by the State, co-defendant Burton was asked if he had made any effort for plea bargaining. He denied this. The prosecutor then asked during recross if he had not in fact offered to testify for the State in the instant case for a recommendation of a 30-year term. Appellant objected based on the previous response of co-defendant Burton. The court overruled the objection. When the question was asked again, Burton replied, “I’ve thought about it.” Upon approaching the bench, defense counsel stated that such questioning was prejudicial to the appellant and moved for a mistrial. The State’s response was that the questioning went to the co-defendant’s credibility.

The initial basis for appellant’s objection to this evidence was that the witness had previously answered the question. An objection must be made at the first opportunity to do so. Rule 103, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979). The objection was not timely here; however, since another trial is expected in this case, it should be pointed out that we held in Wilson v. State, 253 Ark. 10, 484 S.W. 2d 82 (1972) that plea bargaining is alien to jury trials, “[M]any reasons should be obvious why offers and counteroffers in plea bargaining have no place whatever in the evidence at jury trials.”

THE COURT ERRED IN REFUSING TO GIVE AMCI 403 IN CONJUNCTION WITH AMCI 401.

Over defendant’s objection, the court gave AMCI 401 on Accomplices — Definition and Joint Responsibility:

In this case the State does not contend that the defendant acted alone in the commission of the offenses of capital murder and aggravated robbery. A person is criminally responsible for the conduct of another person when he is an accomplice in the commission of an offense.
A person is an accomplice if, with the purpose of promoting or facilitating the commission of an offense, he solicits, advises, encourages or coerces the other person to commit the offense or he aids, agrees to aid or attempts to aid the other person in planning or committing the offenses.
A person acts with a purpose with respect to his conduct or a result thereof when it is his conscious objective to engage in conduct of that nature or to cause such a result.

The defense then requested AMCI 403 on Accomplice Status in Dispute — Corroboration. The court noted AMCI 403 tendered and refused.

The appellant is correct in his argument that AMCI 403 should be given under the evidence in this case. This instruction must be given when an alleged accomplice has testified and the sufficiency of the corroborating evidence presents an issue of fact for the jury. This Court has held that, when the status of a witness presents issues of fact, the defense is entitled to have this question submitted to the jury. Jackson v. State, 193 Ark. 776, 102 S.W. 2d 546 (1937); Simms v. State, 105 Ark. 16, 150 S.W. 113 (1912). As stated in Jackson v. State, supra one’s status as an accomplice is a mixed question of law and fact and the issue must be submitted to the jury where there is any evidence to support a jury’s finding that the witness was an accomplice. Powell v. State, 231 Ark. 737, 332 S.W. 2d 483 (1960). In view of the fact that the witness was jointly charged with this offense, the charge against him was still undisposed of, and the extraneous evidence adduced on the trial tended to connect the witness with the commission of the crime, an issue of fact was raised and it is error to not give AMCI 403 under these circumstances.

THE COURT ERRED IN REFUSING TO GIVE APPELLANT’S REQUESTED INSTRUCTION NO. 16 AND 18.

Appellant argues that although the court told the jury that capital felony murder included the lesser offenses of first degree murder, second degree murder, and manslaughter and the jury could find appellant guilty of one of these offenses or acquit him outright (AMCI 301), the court erroneously failed to give appellant’s requested instruction No. 16 (AMCI 1503), defining second degree murder, and appellant’s requested instruction No. 18 (AMCI 1504), defining manslaughter.

Appellant is correct in this contention. The two requested instructions are necessary to give meaning to appellant’s requested instruction No. 10 (AMCI 301). The law must be so declared that the jury may not be in doubt as to the law of a particular question as it applies to the facts of a particular case. Hill v. State, 253 Ark. 512, 487 S.W. 2d 624 (1972). The failure to give AMCI 1503 and AMCI 1504 in conjunction with AMCI 301, is error when definition of the crimes included in AMCI 301 is requested by the appellant.

Appellee argues that the evidence only supported instructions on capital murder and first degree murder; and, under Ark. Stat. Ann. § 41-105(3) (Repl. 1977), the court is not obligated to charge the jury with respect to included offenses unless there is a rational basis for a verdict acquitting the defendant of the offenses charged and convicting him of the included offenses. However, by giving AMCI 301 the court determined that there was a rational basis for convicting defendant of the lesser included offenses and, having done so, was required to give the two requested instructions defining the crimes.

THE TRIAL COURT DID NOT ERR IN SUBMITTING THE TWO CHARGES OF AGGRAVATED ROBBERY AND CAPITAL MURDER TO THE JURY; HOWEVER, THE COURT DID ERR IN ENTERING A JUDGMENT OF CONVICTION ON BOTH CHARGES.

Appellant asserts that the court erred in submitting the charges of both capital felony murder and aggravated robbery to the jury. We find no error in submission of both, but we do find error in entering a judgment of conviction on both.

Arkansas Stat. Ann. § 41-105 (Repl. 1977) provides:

(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the other, as defined in subsection (2); ...
(2) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged; ...

Under this statute the court did not err in submitting each of these offenses to the jury; however, since aggravated robbery is established by proof of less than all the elements required to establish the commission of capital felony murder, the trial court erred in entering a judgment of conviction on more than one of the offenses.

Appellant argues the proof on the aggravated robbery charge was identical to that needed to sustain the underlying felony charge in the capital felony murder and subjected appellant to double jeopardy, citing Harris v. State, 433 U.S. 682 (1977). Harris is inapplicable to the case before us. Harris involved a case where the defendant was convicted of felony murder and was subsequently convicted on a separate information at a separate proceeding of the underlying offense of robbery with firearms.

The case before us presents an issue of statutory construction and not a United States Constitutional question of double jeopardy. See Whalen v. U.S., 445 U.S. 684 (1980). There it was held that Congress did not authorize consecutive sentences for rape and for a killing committed in the course of the rape. It was held that a conviction for killing in the course of a rape could not be had without proving all the elements of the offense of rape under the applicable statute.

Other objections raised by appellant are not considered since they will not likely be raised in the same context upon retrial.

Reversed and remanded.


text:
    Larry Duke HARVEY v. STATE of Arkansas
    CR 80-204
    611 S.W. 2d 762
    Supreme Court of Arkansas
    Opinion delivered February 23, 1981

      E. Alvin Schay, State Appellate Defender, by: Deborah Davies Cross, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

After a trial by jury, appellant, Larry Duke Harvey, was convicted of theft of property and was sentenced to 15 years imprisonment as a habitual offender. The only issue on appeal is whether the State met its burden of proving the voluntariness of appellant’s confession.

At approximately 8:30 a.m. on February 14, 1980, Cabot Police Lieutenant Jay Verkler assisted appellant in obtaining two gallons of gas for an automobile stalled on the interstate. Appellant gave his name as Eugene Row and told the lieutenant that the vehicle belonged to his mother, a Mrs. Green. A license check disclosed that the car was owned by the prosecuting witness, Mr. Foushee of Newport who had first noticed the car missing that same morning at around 8:00 a.m. After a high speed chase, appellant was taken into custody.

As required by Jackson v. Denno, 378 U.S. 368 (1964) and Ark. Stat. Ann. §43-2105 (Repl. 1977), the trial court made a judicial determination of the voluntariness of appellant’s confession prior to its introduction at trial. Newport police officers Gary Wilson and Bill Wingo testified at the Denno hearing, as did appellant.

The Denno hearing testimony of Wilson and Wingo reveals that, at the Cabot Police Department, at about 11:00 a.m. on February 14, 1980, they fully advised appellant of his rights as required by Miranda v. Arizona, 384 U.S. 436 (1966). They said that appellant stated he understood those rights. The officers further stated that on the way back to Newport, appellant, after first giving an exculpatory story — was talked to a little longer, and orally confessed to taking the vehicle; that after arriving in Newport, appellant was again advised of his rights and a recorded statement was taken at 3:28 p.m. in which he admitted stealing Jack Foushee’s automobile. The officers maintained that no intimidation, force, threats, or favors of any kind were used to obtain this confession and that defendant manifested a complete understanding of his rights.

Appellant testified at the Denno hearing. He said he had been drinking a lot the night before and was still “kind of sickly” and drunk from the night before. He did not remember having his rights read to him at any time; when asked questions about the car, he told the officers he wanted a lawyer.

The State bears the burden of proving by a preponderance of the evidence the voluntariness of an in-custodial confession, Ark. Stat. Ann. §43-2105 (Repl. 1977); and, any conflict in the testimony of different witnesses is for the trial court to resolve. Wright v. State, 267 Ark. 264, 590 S.W. 2d 15 (1979). In reviewing the voluntariness of a confession, we make an independent determination based upon the totality of the circumstances, with all doubts resolved in favor of individual rights and safeguards, and will not reverse the trial court’s holding unless it is clearly erroneous. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515(1974); Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977).

Appellant argues that the cumulative effect of several factors would render his confession involuntary: failure to advise him of his Miranda rights; the length of his detention prior to the confession; “official inducement”; and appellant’s “vulnerable state” at the time of the confession.

First, regarding the issue of whether appellant was advised of his Miranda rights, the Newport police officers testified that he was twice so advised within a period of four hours. They stated he fully understood these rights. Appellant gave conflicting testimony by stating that he did not at any time remember having his rights read to him.

Second, appellant argues that the length of his detention prior to the confession in some way negated its voluntariness. Appellant was arrested by the Cabot Police Department after a high speed chase at around 9:15 a.m. on February 14, 1980. Apparently, no policemen talked to appellant until the Newport officers arrived at around 11:00 a.m. Although he was in police custody for six hours prior to his final confession, appellant was in custody of the Newport officers, who took the confession, for only four hours. There is no suggestion in the testimony that the length of time appellant was in custody influenced his willingness to make a statement. This issue is apparently being raised for the first time on appeal.

Third, appellant argues that an “inducement” offered by Captain Wilson made his statement involuntary. Captain Wilson testified that he made no promises to appellant, although he did say that it would probably help the appellant if he went ahead and talked to them and told the truth. This amounted to “merely an expression of an opinion, and ... was not coupled with inneundo or subtleties calculated to deceive the prisoner.” Penton v. State, 194 Ark. 503, 109 S.W. 2d 131 (1937); Wright v. State, 267 Ark. 264, 590 S.W. 2d 15 (1979). Therefore, the confession cannot be said to have resulted from a promise of benefits by the officer which would render it involuntary and inadmissible.

Finally, appellant argues that his “vulnerable state” combined with the other factors rendered his confession involuntary. Appellant’s alleged “vulnerable state” consisted of a history of alcohol problems, some evidence of alcohol consumption, and a lack of a formal education. He filed in the record a psychologist’s report indicating that he and his family had problems with alcohol and that, although appellant was of average intelligence, he was culturally deprived and had only a ninth grade education. Other than appellant’s testimony, there was no evidence that he was intoxicated on the morning of the crime. The Cabot police officer who assisted appellant in getting gas showed no hesitancy in allowing appellant to continue driving on the highway. The two Newport police officers testified appellant was not drunk but one smelled alcohol on his breath.

The totality of the circumstances, as evidenced by the record, does not support appellant’s contention that the State failed to prove the voluntariness of his confession. Although there was conflicting testimony on several points by the officers and the appellant, we cannot say the trial judge erred in his finding that appellant’s statement was voluntarily given. Our determination of the voluntariness of the confession requires an affirmance of the trial court’s holding.

Affirmed.


author: George Rose Smith, Justice.

text:
    Charlie Mack JAMISON v. STATE of Arkansas
    CR 80-216
    611 S.W. 2d 753
    Supreme Court of Arkansas
    Opinion delivered February 23, 1981

      E. Alvin Schay, State Appellate Defender, by: Deborah Davies Cross, Deputy Defender; Percy A. Wright; and Bill E. Ross, Mississippi County Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

On December 22, 1976, a liquor store in Blytheville was robbed by two masked men, whom the clerk could not positively identify. The appellant Jamison was arrested as a suspect and after having been warned of his rights made a statement in which he admitted his participation in the crime. Jamison chose to take entire responsibility for the robbery, refusing to identify his accomplice. He was convicted of aggravated robbery by a jury and received a 30-year sentence. We granted a belated appeal in 1980. The only argument for reversal is that the verdict is not supported by substantial evidence.

There was adequate proof that the robbery was committed by someone; so an extra-judicial confession is sufficient to support the conviction. Ark. Stat. Ann. § 43-2115 (Repl. 1977); Hargett v. State, 235 Ark. 189, 357 S.W. 2d 533(1962). Jamison argues, however, that his confession does not amount to substantial evidence, because the State failed to overcome the presumption that an in-custody confession is involuntary.

The great weakness in this argument is that Jamison, as he admits in his brief, was represented by retained counsel and waived any right to a Denno hearing by choosing to present his challenge to the confession only to the jury. That strategy evidently failed, but it leaves us without the benefits of the trial judge’s possible determination of voluntariness on the basis of his having heard the testimony in chambers. The question of voluntariness was not submitted to the jury, there being no request for such an instruction. See Furlow v. State, 251 Ark. 757, 475 S.W. 2d 524 (1972). Jamison took the witness stand and denied much of the confession, but the proof is in such conflict that it is impossible to say as a matter of law that the confession was involuntary and inadmissible. It therefore constitutes substantial evidence supporting the verdict.

Affirmed.


author: Frank Holt, Justice.

text:
    COMMERCIAL UNION INSURANCE CO., INC. v. Leonard SANDERS
    80-265
    611 S.W. 2d 754
    Supreme Court of Arkansas
    Opinion delivered February 23, 1981

      McMillan, Turner & McCorkle, by: Toney D. McMillan, for appellant.

      Graves & Graves, by: John Robert Graves and William Randal Wright, for appellee.
   Frank Holt, Justice.

This action arises from an intersection collision between a pickup truck, being driven by a county employee, and another vehicle, resulting in damages to appellee’s filling station located at the corner of the intersection. Suit was brought directly against appellant, the insurer of Hempstead County. Ark. Stat. Ann. § 66-3240 (Repl. 1980). The court, sitting as a jury, awarded judgment in favor of the appellee in the amount of the stipulated damages, 55,905.51. The only issue on appeal is the sufficiency of the evidence as to any negligence on the part of the county employee.

The proper standard on appellate review of cases tried to this court is, as stated in Taylor v. Richardson, 266 Ark. 447, 585 S.W. 2d 934 (1979), that “[findings of fact shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnessses,” citing Rules of Civil Proc., Rule 52.

Here, the driver of the county truck testified he slowed as he approached the red light at the intersection and entered it when the light changed to green. Although he looked, he did not see the approaching vehicle before being struck by it. His truck was hit on the right side and went into a spin, throwing his two passengers on top of him. He did not recall that his vehicle stopped after the impact, nor did he know “how” or what caused his truck to back up from the scene and onto appellee’s property following the collision. However, he acknowledged it was in reverse gear. Even so, he denied placing the vehicle in reverse. A passenger’s testimony was to the same effect. The driver of the other vehicle, who is not a party to this action, testified that he could not say whether the light was green or not when he entered the intersection because he was blinded by the sun. However, he had a green light about four seconds from the intersection. He did not see what happened after he struck the truck. The operator of the service station testified he looked up when he heard the collision and saw the truck in a half spin, come to a stop for a few seconds, and then start backwards onto his property where it came to a stop after hitting his pumps. A customer at the damaged service station testified when he heard the collision, he looked around, saw the pickup in a half spin, stop, and then, with the three occupants sitting upright, proceed backwards into the pumps. Another witness testified his testimony would be substantially the same as that of this witness.

It was for the trial court, as the factfinder, to judge the credibility of the witnesses, weigh the evidence, and draw permissible inferences therefrom. In the circumstances, we cannot say that the trial court’s finding of negligence on the part of the county’s employee is clearly against the preponderance of the evidence.

Affirmed.


text:
    David GLASON v. STATE of Arkansas
    CR 80-223
    611 S.W. 2d 752
    Supreme Court of Arkansas
    Opinion delivered February 23, 1981

      E. Alvin Schay, State Appellate Defender, by: Linda Faulkner Boone, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was charged with burglary, Ark. Stat. Ann. § 41-2002 (Repl. 1977), and attempted rape, Ark. Stat. Ann. § 41-701 (Repl. 1977). However, a jury convicted him only of burglary, imposing a 20 year sentence. His sole point on appeal is that the court should have suppressed two items taken in a warrantless search of his apartment.

Appellant broke into the victim’s apartment in the early morning hours. Appellant, whom she recognized, fled after she successfully fought off his alleged attempt to rape her at gun point. He was arrested shortly thereafter in a nearby apartment, which he shared with Ms. Roella Dean. After he was taken to the patrol car, the arresting officer returned to the apartment building to further interview the victim. The officer then talked to Ms. Dean, who gave him permission to search the apartment after he advised her she had a right to refuse a warrantless search. However, Ms. Dean testified that, although permission was asked, she did not remember ever authorizing the search or saying anything; she did not remember being told that a search warrant could be secured; and she told them during the search she did not think she had given them permission to search, to which the officer replied that she had. She never denied giving permission. In the bedroom of the apartment, the officers found a pistol and a pair of trousers, both with fresh blood on them. Appellant’s motion to suppress these items was denied. Both were introduced in evidence, because of the connection between the fresh blood and the wounds found on appellant’s hands and back at the time of his arrest.

One who has joint possession or equal authority with respect to premises, as here, had authority to permit a warrantless search. Grant v. State, 267 Ark. 50, 589 S.W. 2d 11 (1979); King v. State, 262 Ark. 342, 557 S.W. 2d 386 (1977); and U.S. v. Matlock, 415 U.S. 164 (1970). We give considerable weight to the findings of the trial court whose function is to resolve conflicts in evidence and the credibility of the witnesses. The voluntariness of a consent is a fact question to be determined from the totality of the circumstances with the burden upon the state to show that consent is freely and voluntarily given by clear and positive testimony. Moore v. State, 265 Ark. 20, 576 S.W. 2d 211 (1979); and King v. State, supra. Here, tested by these rules, we hold that the state has demonstrated that consent to search the apartment was freely and voluntarily given.

Even if it be said that the two items should have been suppressed as evidence, the evidence without these items is so overwhelming as to guilt of burglary that the asserted error, if of constitutional proportions, is harmless beyond any reasonable doubt. Pace v. State, 265 Ark. 712, 580 S.W. 2d 689 (1979). Here appellant took the witness stand and denied the rape attempt. However, because he needed money, he broke into the victim’s apartment for the purpose of “burglarizing it”, not knowing she was at home. He denied having the gun with him. He admitted he had a cut hand and he got fresh blood on the gun and his pants by handling them when he returned to his apartment.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Pauline Scroggins ADAMS v. James DOPIERALLA
    80-266
    611 S.W. 2d 750
    Supreme Court of Arkansas
    Opinion delivered February 23, 1981

      Howell and Price, P.A., by: William H. Trice, III, for appellant.

      Jacoway and Sherman, for appellee.
   Darrell Hickman, Justice.

This appeal concerns a determination of whether a deed was delivered during a lifetime. The appellant, Pauline Scroggins Adams, claimed that Felix Dopieralla gave her a deed during Dopieralla’s lifetime. Adams’ claim was resisted by James Dopieralla, the son of Felix. The chancellor found that the deed was invalid because it had not been delivered and awarded the property to James, the only son. The appellant argues that the chancellor was wrong in his decision. The appellee cross-appeals from a decision by the chancellor awarding the proceeds of a credit union account, amounting to about $4,000.00, to the appellant, Pauline Scroggins Adams.

We affirm the chancellor’s finding that there was no delivery of the deed. We affirm the decision awarding the credit union account to Adams because the appellee did not comply with Rule 9 (e) by providing a sufficient abstract for us to decide the cross-appeal.

When Felix Dopieralla died in March, 1979, a sealed envelope was found in his house. The envelope contained a deed to his residence with Pauline Scroggins Adams named as the grantee. Mrs. Adams testified that Dopieralla had actually delivered the deed to her during his lifetime. The delivery was allegedly made at the home of a mutual friend, a Mrs. Nielson. Adams said that she did not record or keep the deed because her husband might not understand. She left the deed with Mrs. Nielson. Later, according to Adams, she gave the deed back to Dopieralla because Mrs. Nielson was leaving on an extended trip and she did not want to keep the deed. Dopieralla continued to occupy his home and exercise all rights of unlimited ownership over it. Dopieralla also continued to pay the taxes on the property. We have considered these acts to be contradictory to an intention to pass title immediately. Broomfield v. Broomfield, 242 Ark. 355, 413 S.W. 2d 657 (1967).

The appellant’s argument regarding delivery cannot succeed in the light of the law and the chancellor’s findings. A deed, to be valid in such cases, must be delivered. Delivery means that there must be an intention to pass title immediately and the grantor must lose dominion over it. Broomfield v. Broomfield, supra.

In Parker v. Lamb, 263 Ark. 681, 567 S.W. 2d 99 (1978) we considered a similar situation. The Parkers, on the advice of an abstractor, had deeds prepared and placed in an envelope to be delivered on their death. In that case we said:

No effective delivery is shown. The law wisely requires the delivery of a deed, as a positive act bringing home to the grantor that he is definitely parting with the ownership of his land. An essential element of a valid delivery is the grantor’s intention to pass the title immediately. Smith v. Van Dusen, 235 Ark. 79, 357 S.W. 2d. 22 (1962);Hunter v. Hunter, 216 Ark. 237, 224 S.W. 2d 804 (1949).

The chancellor found no delivery in this case. In order to reverse that decision we are required to find that his finding was clearly erroneous. Rule 52, Rules of Civil Procedure. We cannot make such a finding and affirm the decree in that regard.

The appellant was allowed to keep some $4,000.00 from a credit union account and the appellee claims on cross-appeal that the chancellor erred in this regard. It was argued that the money was intended to be used for the funeral expenses of Dopieralla. However, the appellee did not abstract the document relied upon or any testimony regarding this account and we cannot say on the basis of the record presented to us that the chancellor was wrong. Since the appellee failed to comply with the Rule 9(e), that part of the decree is also affirmed. Smith v. Bullard, 271 Ark. 794, 610 S.W. 2d 888 (1981).

Affirmed.

Hays, J., not participating.


author: John I. Purtle, Justice.

text:
    Otha Lee CONLEY v. STATE of Arkansas
    CR 80-85
    612 S.W. 2d 722
    Supreme Court of Arkansas
    Opinion delivered February 23, 1981
    [Rehearing denied April 6, 1981.]

      Harold L. Hall, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

A Pulaski County Circuit Court jury convicted appellant of burglary and rape. He was sentenced to 30 years plus $15,000 on the burglary and life plus $15,000 on the rape charge. The court ordered the sentences to run consecutively and consecutively with the sentences already being served.

On appeal appellant argues five points for reversal, which will be set out in the body of this opinion.

Appellant was arrested on September 19, 1978, and charged with burglary in violation of Ark. Stat. Ann. § 41-2002 (Repl. 1977) and rape in violation of Ark. Stat. Ann. § 41-1803 (Repl. 1977) The burglary allegedly resulted when appellant unlawfully entered a residence on West Thirteenth Street in Little Rock, Arkansas, on July 15, 1978, and forcibly raped a young woman. The victim gave a description of her assailant to the police a few minutes later. She further stated she could recognize the voice and did recognize it when she alleged he called on two occasions a week or so after she was raped. Also, a line-up was held on August 29, 1978, and after the victim heard each man in the line-up speak she identified the appellant as her assailant. Due to mechanical difficulty, photographs of the line-up did not develop. However, the police had on file individual photographs of the members of the line-up.

At a pretrial conference the appellant moved to suppress the line-up identification. The victim was a witness at the hearing, and the court explained to her his reasons for not suppressing the line-up identification. In so doing, the court instructed the witness on what to expect at the trial. He explained that the state would not ask her about the line-up but that the defendant’s attorney might do so and if he did she could tell them all about the line-up. The court warned the state not to go into the line-up on direct or it would possibly result in a mistrial. The deputy prosecuting attorney stated they had no intention of going into the line-up at the trial. The court also refused to allow the individual photographs of the persons in the line-up to be introduced but permitted defense counsel to proffer them into the record for appeal purposes.

When the jury was being selected for trial the state excused six black prospective jurors. Two of the six had already been accepted by the state and the defense. The defendant had exhausted his twelve peremptory challenges when the two were excused from the box. The state had not and did not use all ten of its peremptory challenges. Apparently, some blacks remained on the petit jury panel which tried the appellant. The appellant is black. His motion for a mistrial, based on the peremptory challenge method used by the state in excluding only black jurors, was denied.

In the opening statement the deputy prosecutor stated that the victim would testify she identified the appellant at the police line-up. Neither the court nor the prosecuting attorney could remember any agreement not to mention the line-up. The appellant moved for a mistrial which was denied. As the trial continued the state questioned the victim about the line-up identification, and the appellant cross-examined her about the line-up. The questioning of the witness on direct examination by the state occurred after the court suggested the matter be cleared up.

The court refused to give appellant’s Instruction No. 1 which related to identification testimony only.

In the sentencing stage the state introduced a New York felony conviction. The appellant was represented by counsel in that conviction. The state also introduced a double conviction entered on February 10, 1979, for an offense committed prior to the one for which he was being tried.

I.

THE COURT ERRED IN PERMITTING THE STATE TO PEREMPTORILY CHALLENGE A BLACK JUROR WITHOUT CAUSE FROM THE BOX AFTER THE APPELLANT HAD EXHAUSTED HIS PEREMPTORY CHALLENGES.

II.

THE COURT ERRED IN FAILING TO DECLARE A MISTRIAL WHEN THE STATE EXCUSED SIX BLACK JURORS BY PEREMPTORY CHALLENGES OF WHICH TWO OF THE JURORS HAD BEEN ACCEPTED BY BOTH THE STATE AND THE DEFENSE IN VIOLATION OF HIS RIGHTS UNDER THE CONSTITUTION OF THE UNITED STATES AND THE STATE OF ARKANSAS.

We treat these two arguments together as they are overlapping. There is no dispute that the state was allowed to excuse two jurors after they had been seated. However, we think this argument was laid to rest in the case of Nail v. State, 231 Ark. 70, 328 S.W. 2d 836 (1959). In Nail we approved the state being allowed to challenge a juror who was already approved, and we also stated that if the circumstances were reversed the defendant would be allowed the privilege of peremptorily challenging a juror already accepted. The appellant relies upon the case of Jeffries v. State, 255 Ark. 501, 501 S.W. 2d 600 (1973). In Jeffries, the court refused to allow the defendant to excuse a juror who had already been accepted by both sides and seated in the box. We upheld the trial court’s action on the grounds that the court exercised its discretion in the matter. Therefore, Jeffries and Nail are not in conflict. The appellant cites one other case in support of his argument, and that is Clark v. State, 258 Ark. 490, 527 S.W. 2d 619 (1975). However, Clark repeats the exact situation as was found in Jeffries.

Appellant also challenges the state’s method of exercising its peremptory challenges which resulted in excusing only black jurors. However, the appellant fails to take notice of the fact that there were still black jurors left on the trial panel after the state excused two from the panel. We do not find that the appellant has shown that the state is following a plan of systematic exclusion of black veniremen. Therefore, the argument is controlled by the case ofBrown v. State, 239 Ark. 909, 395 S.W. 2d 344 (1965), cert. denied 384 U.S. 1016 (1966). In Brown we held a black defendant was not entitled absolutely to have a black juror on the panel which tried his case. See Swain v. State of Alabama, 380 U.S. 202 (1965). Therefore, we find no error under appellant’s arguments I and II,

III.

THE COURT ERRED IN DENYING APPELLANT’S MOTION FOR MISTRIAL WHEN THE DEPUTY PROSECUTING ATTORNEY IN HIS OPENING STATEMENT TOLD THE JURY THE VICTIM IDENTIFIED THE APPELLANT IN A LINE-UP AFTER THE COURT RULED THAT IT WOULD NOT BE REFERRED TO AT TRIAL.

Appellant moved to suppress the line-up identification at a pretrial hearing. The victim was a witness at the suppression hearing. A portion of the hearing follows:

THE COURT: Gentlemen, ... I suspect that there will be not any mention of the line-up. Is that correct?
MR. CRANK (PROSECUTOR): I have no intention of doing it.
MR. NEWCOMB (DEFENSE): Your Honor, I’m not sure what my trial strategy will be.
THE COURT: Let me advise ... that customarily ... you will be called to the stand and asked the questions that the prosecutor must ask you and then you will be asked if you can identify the man who raped you. “Is he in the Court today?” And you may or may not identify him. But, normally, we do not get into the question about an out of court identification, to-wit: the line-up. Generally, they don’t want to do that because it sometimes has the ability to reenforce the witness’ testimony to the jury. But, in this case, Mr. Newcomb does not know what his trial strategy will be. So, he may cross-examine you about “Have you had an opportunity to see Mr. Conley other than the night?” If he does, you will be permitted to say, “Yes.” If he proceeds in that, then you will be permitted to say when. “I saw him in a line up.”
We’re getting in a technical area. If you said it on direct examination by Mr. Crank, it might be objectionable and it might be grounds for a mistrial and this sort of thing, which we don’t want to go through again. This is why I asked you if your identification is based upon the incident that night. But, if Mr. Newcomb elects to question you about the line up, you may feel free to discuss it if he brings it up.

During his opening statement to the jury the deputy prosecuting attorney stated:

... that she did go down and view a line up, that she positively identified a subject in this line up by his voice and by his physical appearance, that this subject was Otha Conley.

At this point the appellant objected and moved for a mistrial. Neither the court nor the prosecutor could remember any agreement not to allow the prosecution to mention the line-up unless it was first mentioned by the defense. However, after rejection of the motion for a mistrial the appellant did not request an admonition. During the direct testimony of the victim she identified the appellant as the man who raped her. She was asked if she was positive that this was the man who raped her. After an affirmative response, counsel for the state and defense approached the bench and conferred with the court at which time the court stated:

I think that you ought to go into the basis of her identification. Is it the night of the thing, or the line up or what, since you brought it up.

Again, the appellant moved for a mistrial which was overruled. The appellant did not move for an admonition. The questioning continued before the jury by the deputy prosecutor asking the following questions:

Miss ..., you stated you identified Otha Conley as the person who raped you. Did you make that identification based on what you saw at the line up or did you make that identification based on what you recall from the time you were raped?

The witness eventually answered that she was making her in-court identification from the events which occurred on the night she was raped. We disagree with appellee’s argument that this line of conversation was related only to the photographs of the individuals who were in the line-up.

We have had many occasions to deal with out of court identifications by witnesses. In Warren v. State, 103 Ark. 165, 146 S.W. 477 (1912), we stated:

... but no where, so far as we can ascertain, has it ever been held that a so-called “extrajudicial identification” is admissible as original testimony; and it was, therefore, in any view of the case, inadmissible, for there was no attempt to impeach the witness by contradictory statements, or otherwise. The testimony was introduced as original evidence and it was clearly inadmissible, for it was not competent to corroborate the identifying witness by proof of former identification.

InBirones v.State, 105 Ark. 82, 150 S.W. 416 (1912), we stated:

... In the recent case of Warren v. State, 103 Ark. 165, we held that what is termed an extrajudicial identification is inadmissible as original testimony. The ruling of the trial court in excluding the testimony of the witness, Wilson, was in accordance with the announcement of this court in the Warren case; but the testimony of Miss Andrews, in stating that she saw defendant at police headquarters and recognized him, in nowise violated the rule we had laid down. It was entirely competent for her to state how often she had seen the defendant before and after the commission of the crime, and whether she recognized him or not.

In the subsequent case oí French v. State, 231 Ark. 677, 331 S.W. 2d 863 (1960), the victim properly testified that he identified the defendant at the police station in a line-up. In answer to the challenge of the extrajudicial identification, we stated:

Certainly it was proper to answer that question and state when and where he identified the defendant.

In the later case of Bishop v. State, 236 Ark. 12, 364 S.W. 2d 676 (1963), we stated:

The court properly allowed the prosecuting witness to testify that she identified the accused at the county jail on the day after the offense. French v. State, 231 Ark. 677, 331 S.W. 2d 863 (1960).

If any confusion existed as to our prior decisions in the matter of extrajudicial identifications, it has been put to rest by Acts of Arkansas 1979, No. 1097. In amending the Arkansas Uniform Rules of Evidence the purpose of Act 1097 was stated by the General Assembly to be to amend Rule 801 (d)(1) to include ‘prior identification of a person’ in the definition of statements which are not hearsay. With the 1979 amendment Rule 801 (d)(1) now reads:

Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (iii) one of identification of a person made after perceiving him; or ...

Therefore, we hold that a witness may testify on direct examination that he has previously identified the defendant and may relate when and where such identification took place. We find that it was not error to allow the prosecuting attorney to offer original testimony by the victim that she had made extrajudicial identification of the appellant.

In the case of United States v. Lewis, 565 F. 2d 1248 (2nd Cir. 1977), the federal rules concerning hearsay evidence were considered. Federal Rules of Evidence, Rule 801(d), has the exact words as we have quoted from our Rule 801(d). In Lewis the Court considered the purpose of the amendment to Rule 801(d), which is the identical amendment to our Rule 801(d), and concluded that line-up identification was more reliable than in-court identification. We agree with the reasoning set forth in Lewis.

IV.

THE COURT ERRED IN REFUSING TO GIVE DEFENDANT’S REQUESTED INSTRUCTION NO. 1.

Appellant’s fourth argument for reversal has been recently decided in Conley v. State, 270 Ark. 886, 607 S.W. 2d 328 (1980). This is the identical instruction offered in Conley, and for the reasons stated therein we find no error in the trial court’s rejection of this instruction.

V.

THE COURT ERRED IN PERMITTING THE PROSECUTING WITNESS TO IDENTIFY AN UNIDENTIFIED VOICE SHE HEARD OVER THE TELEPHONE AS BEING THE VOICE OF APPELLANT.

The appellant argues the court improperly allowed the victim to testify that she recognized the appellant’s voice over the telephone. Appellant relies on the case of Bailey v. State, 238 Ark. 210, 381 S.W. 2d 467 (1964). In Bailey we held that a witness could not testify that she recognized the accused’s voice over the telephone. In the present case the victim herself testified she recognized the appellant’s voice over the telephone. She had heard him talk at the time of the offense and she heard him speak when she viewed the lineup at the police station. We have previously allowed a victim to testify as to the recognition of the voice of an accused. Smith v. State, 240 Ark. 771, 402 S.W. 2d 412 (1966), and Harkness v. State, 267 Ark. 274, 590 S.W. 2d 277 (1979). Therefore, it was not error for the court to allow the victim to testify as to voice identification.

VI.

In response to the requirements of Ark. Stat. Ann. § 43-2725 (Repl. 1977) and Rule 11 (f) of the rules of this court, the record has been analyzed for questions raised and objections made at the trial but not briefed on appeal. Such examination revealed appellant to have been charged and convicted as an habitual criminal. Ark. Stat. Ann. § 41-1001 (Repl. 1977) states:

(1) A defendant who is convicted of a felony and who has previously been convicted of more than one (1) but less than four (4) felonies, or who has been found guilty of more than one (1) but less than four (4) felonies, may be sentenced to an extended term of imprisonment.

The information in this case was amended to charge the appellant as an habitual offender. In the penalty phase of the bifurcated trial the state offered into evidence, over the objection of the appellant, a prior felony conviction from the State of New York. Also, the state offered into evidence a conviction of burglary and rape, which conviction was dated February 10, 1979- The offense for which he was convicted on February 10, 1979, occurred before July 15, 1978, the date the offense was committed for which the appellant is presently being tried. In Washington v. State, 271 Ark. 420, 609 S.W. 2d 33 (1980), we dealt with a situation very similar to the present one. In Washington we were dealing with the situation where the prior conviction concerned an offense which occurred after the commission of the principal offense. In the present case the offense upon which the prior felony conviction of February 10, 1979, rested was committed prior to July 15, 1978. Therefore, the New York conviction and the February 10, 1979, conviction constitute two prior felony convictions.

Dicta in the Washington v. State, supra, opinion indicated that we assumed deterrence was the basis for the Arkansas Habitual Criminal Act. However, we have reviewed Act 474 of 1977 and find that the commentary indicated the new act achieved the basic purpose of punishing the recidivist more severely than the former method. On closer study it is our opinion that the purposes of the act are to increase the punishment of multiple offenders and to protect the citizens of the community. Therefore, we are able to adhere to the plain language of Ark. Stat. Ann. § 41-1001 (1) which states that a defendant who is convicted of a felony and has been convicted of more than one but less than four previous felonies is subject to the harsher punishment.

Affirmed.

Hickman, J., concurs.


author: Robert H. Dudley, Justice.

text:
    Mary W. HESS and Jean W. MORTON v. Geraldine WIMS, Executrix
    80-229
    613 S.W. 2d 85
    Supreme Court of Arkansas
    Opinion delivered February 23, 1981
    [Rehearing denied April 13, 1981.]

      Friday, Eldredge & Clark, by: George Pike, Jr., for appellants.

      Knox Kinney, for appellee.
   Robert H. Dudley, Justice.

Appellants challenge the constitutionality of the Arkansas laws that allow a widow, but not a widower, to take against a will and to receive dower interests, statutory allowances and homestead rights.

Mary Hess and Jean Morton, the appellants, and the decedent Hoyt Wims, were the only three children of their parents. When their mother died, Jean Morton was appointed administratrix, and the mother’s Mississippi land was sold. The proceeds were given to Hoyt Wims to purchase 57 acres in St. Francis County, where the children had grown up, and their father was to be allowed to live there during his lifetime. Hoyt Wims was to leave the balance of his estate to his two sisters, if they survived him. In 1970, he had a will prepared which left all of his property to his two sisters, subject to a life estate in their father in the real estate.

The father died, and Hoyt Wims became terminally ill. In 1978, during the last year of his life, he married Geraldine Wims and moved into the home she had owned and occupied for a number of years.

After the death of Hoyt Wims in 1979 and the admittance of his will to probate, Geraldine Wims, the appellee widow, elected to take against the will and petitioned for the award of statutory allowances, dower and homestead interests. The trial court, in reliance on our gender based statutes, granted her the relief asked.

The decedent, by a will, left his property to his sisters, the appellants. The statutes in question allow the widow to take part of that property in frustration of the will and to the detriment of appellants. They have that type of personal stake in the outcome of this case that will cause the issues to be developed in a fully adversary proceeding as is necessary to present all issues in difficult constitutional questions, and therefore they have standing.

Appellee filed her election pursuant to Ark. Stat. Ann. § 60-501 (Repl. 1971). This statute allows a widow to take dower against the will of her husband under any condition, but allows the husband to take curtesy against the will of his wife only if her will was executed before the. marriage. Dower is an inchoate right, while curtesy may be defeated. No valid compensatory purpose or justifiable governmental function can be found to sustain this gender-based discrimination. This statute must be declared in violation of the Equal Protection clause of the Fourteenth Amendment. Orr v. Orr, 440 U.S. 268 (1979).

State and federal statutes discriminating against males upon the presumption that all males are superior to females in financial matters have been held to be unconstitutional in recent years. Most recently, in Wengler v. Druggist Mutual Insurance Co., 446 U.S. 142 (April 22, 1980), the United States Supreme Court held that a Missouri workers’ compensation law denying a widower benefits on his wife’s work-related death and providing that under the same circumstances a widow could have obtained benefits from her husband’s death was an illegal sex discrimination. The Court stated that the burden is on those defending the discrimination to make out the claimed justification, and it is not sufficient that a number of years ago the Legislature thought widows to be more in need of help than widowers.

The United States Supreme Court and this court in recent years have declared invalid a number of gender based laws. In Reed v. Reed, 404 U.S. 71 (1971), a provision of the Idaho probate code which preferred males over females was declared void. Califano v. Goldfarb, 430 U.S. 199 (1977), held unconstitutional a provision of the Social Security laws denying a widower benefit from the death of his wife because he could not prove he was receiving at least one-half of his support from her, while a widow would automatically have been entitled to such benefits. Weinberger v. Weisenfeld, 420 U.S. 636 (1975), held unconstitutional a provision of the Social Security Act not providing for a widower to receive benefits for a minor child in his care, while a widow would be entitled to the benefits.

In Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1975), we declared unconstitutional the statute providing for maintenance and attorney fees for wives only, and in Noble v. Noble, 270 Ark. 602, 605 S.W. 2d 453 (1980), we declared discriminatory alimony and division of property statutes are unconstitutional. These decisions were based on Orr v. Orr, supra, a United States Supreme Court decision finding the laws of Alabama which allowed temporary maintenance and attorneys fees to wives but not to husbands were prohibited.

Our case of Lucas v. Handcock, 266 Ark. 142, 583 S.W. 2d 491 (1979), found a statute unconstitutional which allowed illegitimate children to inherit from their mother and not their father. This followed the case decided by the United States Supreme Court, Trimble v. Gordon, 430 U.S. 762 (1977). The present case presents another set of statutes based upon an impermissible presumption.

In this case the appellee elected to take her right of dower rather than proceed under the will. Ark. Stat. Ann. §§ 61-206, 207 and 208 (Repl. 1971) give the wife a right of dower which cannot be defeated by a husband’s conveyance. The comparable curtesy statutes, Ark. Stat. Ann. §§ 61-228 and 229 (Repl. 1971), allow the wife to defeat curtesy by conveyance. These statutes provide dissimilar treatment for men and women who are similarly situated. We can find no justification for this discrimination. We hold the dower statutes applied in this case, §§ 61-206 and 208, are unconstitutional. Today, in Stokes v. Stokes, 271 Ark. 300, 613 S.W. 2d 372 (1981), a case involving a widow and children, we hand down a decision invalidating the following companion statutes: §§ 61-201, 202, 203, 207 and 210.

Ark. Stat. Ann. § 62-2501 (Repl. 1971) provides allowances to a widow, but not a widower, of $2,000 plus $500 sustenance. Under the facts in this case and the language of the statute, we can find no way to extend the benefits to the disfavored class and, accordingly, we find it necessary to deny the benefits to both widowers and widows by declaring the statute unconstitutional as applied. In today’s companion Stokes case, supra, we hold this statute is unconstitutional in the event there are minor children.

Pursuant to Article IX, Section 6 of the Arkansas Constitution, the appellee, as a widow with no children, was awarded homestead against the interests of appellants. This means that appellee, during her lifetime, is entitled to possession of the homestead and all rents and profits from the lands devised to appellants.

Our Constitution makes no comparable homestead provision for men. Had the appellee widow died before Hoyt Wims, he could not have been allowed possession of her home, even though he had none. This constitutional provision is discriminatory and we find no valid governmental function to justify this dissimilar treatment of widows and widowers. This provision as applied in this case violates the Fourteenth Amendment. There is no language in this section which will allow us to extend the homestead benefits to widowers without children, and, as a result, we hold the provision invalid as applied. We do not reach a decision on this section in the event there are children, as the State might make a valid argument that the provision is justifiable.

While dower, statutory allowances and homestead have been favored provisions of our law for nearly 150 years, it is now impermissible to presume that all females are inferior to males in financial matters. Accordingly, we find the gender based discriminatory statutes and constitutional provision relied upon to grant the election to take against the will, the widow’s allowances, dower and homestead to be unconstitutional as applied in this case.

Reversed and remanded for proceedings not inconsistent with this opinion.