text:
    Thea CLEMENS v. FIRST NATIONAL BANK OF BERRYVILLE, AR.
    85-40
    692 S.W.2d 222
    Supreme Court of Arkansas
    Opinion delivered June 24, 1985

      Barry J. Watkins, for appellant.

      Davis, Cox & Wright, by: Constance G. Clark, for appellee.
   Jack Holt, Jr., Chief Justice.

At issue in this case is the liability of a bank for honoring transactions conducted by one of co-signatories on an account. The trial court found the bank was protected by statute and granted partial summary judgment on those grounds. Our jurisdiction is pursuant to Sup. Ct. R. 29(1 )(c) as we are being asked to interpret the applicable statutes.

The facts which gave rise to this cause of action are as follows. In February, 1979, the appellant Thea Clemens, who was then Thea Howes, executed a general power of attorney naming Jack Howes, at that time her husband, as her attorney in fact. In May of 1979, Jack and Thea Howes borrowed money from the appellee, First National Bank of Berryville, Arkansas, for the purchase of Ron’s Liquor Store in Berryville. The loan of $46,000 was evidenced by a promissory note and secured by stock in IDS New Dimensions Fund, Inc., owned by Mrs. Howes. During the closing of the loan the bank was given a copy of the general power of attorney from Thea Howes in favor of Jack Howes by Mr. Howes. At the same time, the Howeses opened a checking account in the name of Ron’s Liquor Store on which they, together with an employee, were authorized signatories. The $46,000 was deposited in the liquor store account.

In September 1979, Jack Howes told Burton George, president of appellee bank, that he wanted to redeem the IDS stock to pay off the note to the bank and increase the store’s inventory. The bank prepared a letter of redemption and sent it via Mr. Howes to Mrs. Howes for her signature. Mr. Howes returned the letter bearing what the bank believed to be Mrs. Howes’ signature. The letter was then sent to IDS with a request that the proceeds be credited to appellant’s account.

On September 21, the stock proceeds of $63,671.96 were credited to the liquor store account. Of that amount, $47,098.84 was debited to pay off the $46,000 note and a $3,000 note executed by Jack Howes and, purportedly, by Thea Howes on September 13.

On December 13,1979, Jack Howes presented a $14,671.40 check to the appellee for payment. The check was from State Farm Life Insurance Co., and represented the cash surrender value of a life insurance policy owned by Thea Howes. Unknown to the bank, the check bore the forged endorsement of Thea Howes. Of that sum, $4,055.44 went to pay off a $4,000 note executed by Jack Howes and purportedly, Thea Howes, on October 30; $3,000 went to Jack Howes in cash; and $7,615.96 was deposited in the liquor store account.

In January, 1980, the appellant discovered that her husband had redeemed her stock and cashed her life insurance policy after forging her name on the check. She telephoned Burton George, making him aware for the first time of her husband’s improprieties. On February 11, 1980, the appellant executed a revocation of her general power of attorney and delivered a copy to Mr. George.

The parties were later divorced and on December 30,1980, the appellant filed suit against appellee for negligence, breach of contract, conversion and fraud. The bank denied liability and moved for summary judgment on the grounds that they were protected to the extent the proceeds from the transactions were deposited to the liquor store account and that they relied on her power of attorney in liquidating the securities and honoring the check.

The trial court granted a partial summary judgment in favor of the bank, finding that the appellant had no cause of action to recover the $63,671.96 realized from the liquidation of the securities and deposited in the liquor store account, an account over which both parties had joint control. The court also found the appellant had no cause of action over the $7,615.96 of the insurance check deposited to the same account. The court held however that as to the $7,055.44 of the insurance proceeds not deposited in the liquor store account, there remained a genuine issue of material fact to be litigated between the parties.

The appellant appealed the trial court’s decision, but the appeal was dismissed by this court as untimely in the absence of a final judgment. A trial was held on the remaining issues on August 20, 1984 and the jury returned a verdict for the appellee. The appellant brings this appeal from the partial summary judgment granted by the trial court.

In reviewing motions for summary judgment, the burden is on the moving party to demonstrate that there is no genuine issue of fact for trial. The evidence submitted in support of the motion is viewed most favorably to the party against whom the relief is sought. Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981). “Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable men might differ.” Walker.

The trial court based its decision as to the stock proceeds on Ark. Stat. Ann. § 67-521 (Repl. 1980) (repealed in 1983) which provides:

When a deposit shall have been made in the names of two [2] or more persons and in form to be paid to any of the persons so named, such deposit and any additions thereto made by any of the persons named in the account, shall become the property of such persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named, and may be paid to any of said persons. Such payment and the receipt or acquittance of the one to whom such payment is made shall be a valid and sufficient release and discharge of said bank for all payments made on account of such deposit prior to the receipt by said bank of notice in writing signed by any one of said joint tenants not to pay such deposit in accordance with the terms thereof.

The appellant offers three reasons why this statute is inapplicable. First, she argues the statute applies “[w]hen a deposit shall have been made in the names of two or more persons” but this deposit was made in the name of “Ron’s Liquor Store”, not in the names of Jack and Thea Howes. This contention is without merit. The appellee loaned money to Jack and Thea Howes to purchase the liquor store and that money was placed in the liquor store account on which Jack and Thea Howes were co-signatories. The deposit made to the liquor store account could be paid to either Jack or Thea Howes and therefore meets the requirements of the statute.

Second, the appellant contends that before the statute applies, the addition to the account must be made by one of the persons named in the account. The redemption checks sent by IDS were made payable to “First National Bank for account of Thea W. Howes.” The appellant maintains that the deposit was made by the appellee instead of by the appellant. This argument elevates form over substance. Whether the deposit was made by one or the other parties is irrelevant. The point is that it was deposited to an account in their joint ownership.

The final basis urged by the appellant is that under § 67-521 there must be a withdrawal by a person named on the account and here, the appellee actually debited the account. Again, form is being asserted over substance. The withdrawals, like the deposit, were made at the direction of Jack Howes, who is one of the persons authorized to draw on the account.

We have held that the purpose of § 67-521 is to protect “the bank in making payments from deposits in the names of any two persons,” Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969). The bank was acting pursuant to Jack Howes’ instructions when it withdrew the $47,098.84 to pay off the parties’ loan and when it withdrew $3,006.56 to satisfy the second note. The balance of the proceeds remained in the liquor store account and therefore became the property of both Jack Howes and the appellant. The bank’s action was protected by § 67-521.

The appellant’s remaining argument concerns the second transaction where the appellee honored a forged endorsement on an insurance check. Arkansas Stat. Ann. § 85-3-419 (1) (c) (Add. 1961) provides that an instrument is converted when it is paid on a forged endorsement. There is a common law exception to this rule however when the proceeds of the forged instrument are paid to the person whom the drawer intended to receive them, Starkey Construction, Inc. v. Elcon, Inc., 248 Ark. 958, 457 S.W.2d 509 (1970). The trial court found that the insurance check was deposited to the liquor store account. The court said:

Although the money did not reach Plaintiff's [appellant’s] hands in the manner she expected, it is true that it reached her and was credited to the Ron’s Liquor Store account on which she was an authorized signatory and owner. Her loss was caused by the subsequent actions of Jack Howes.

In Starkey, supra, this court recognized the common law exception and stated, “We cannot believe that it was the intent of the General Assembly to hold a drawee (the bank) liable where the money actually reached the parties intended by the drawer of the check.” The court further found that it is a “principle of statutory construction that a statute will not be construed so as to overrule a principle of established common law, unless it is made plain by the act that such a change in the established law is intended.”

The appellant attempted to distinguish Starkey by saying that in that case, the money actually reached the intended payees, while there the proceeds were deposited in an account on which appellant could sign, but there is no proof she received the money. Nevertheless, since the appellant was a co-signer on the account, the money was available to her at all times and, as the trial court held, the money reached her although not in a manner she expected.

Authority for the common law exception to § 85-3-419 is also found in Merchants’ Nat’l Bk. v. Home Bldg. & Savings Ass’n, 180 Ark. 464, 22 S.W.2d 15 (1929). In Merchants, the court held a bank not liable for cashing checks, payable jointly to an agent for a savings and loan association and the association’s borrower, upon forged endorsements. The court found that the proceeds of the checks reached the agent’s hands and were credited to the agency account exactly as if the checks had been properly endorsed.

The loss was sustained through Dewberry’s [the agent’s] improper use of the money after it came to his hands. It is true the money did not reach his hands in the manner the association expected, but it is nevertheless true that it did reach him and was credited to his agency account, and was thereafter misused, and thus the loss was caused.

Merchants, supra.

The appellant again attempted to distinguish the instant case by saying that Thea Howes did not create the situation which caused her loss, while the savings and loan in Merchants did create the situation by creating the agency. Actually, however, by giving Jack Howes her general power of attorney, the appellant did create the situation which resulted in such substantial loss to her. The misuse of the funds occurred after they were deposited in the liquor store account and were withdrawn by Jack Howes. The appellee and the appellant were both innocent in the transactions, but Thea Howes’ act in granting the power of attorney is the act which most contributed to producing the loss. The loss must therefore fall upon her. Cureton v. Farmers’ State Bank, 147 Ark. 312, 227 S.W. 423 (1921).

Since the bank is shielded from liability by statute and common law, the trial court was correct when it granted a partial summary judgment.

Affirmed.

George Rose Smith, J., not participating.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Michael DOUGLAS v. STATE of Arkansas
    CR 85-38
    692 S.W.2d 217
    Supreme Court of Arkansas
    Opinion delivered June 24, 1985

      Arnold, Hamilton & Streetman, by: Herman L. Hamilton, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Alice Ann Burns, Dep. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, age 15, was convicted of rape and sentenced to 40 years imprisonment. On appeal he contests the admissibility of an in-court confession and a rape kit, and challenges the sentencing court’s jurisdiction. Our jurisdiction is pursuant to Sup. Ct. R. 29 (l)(b). We affirm.

The appellant was arrested and charged on March 20, 1984, in Drew County, Arkansas, with having raped Olga Harris, age 79, of Wilmar, Arkansas. At the time of his arrest, he was read his rights three times and signed a rights form. The appellant’s mother was present at least one of the times that the appellant was advised of his rights and when he signed the form. A change of venue was granted and he was tried by a jury in Ashley County.

A hearing was held in Ashley County on March 21 at which bond was set and the appellant was advised of his right to remain silent and his right to appointed counsel. He was also informed of the charge against him and the range of penalties it carries. The appellant was not represented by counsel at the hearing, nor was his family present, but he was again advised in open court of his constitutional rights. During the hearing, the trial judge asked the appellant at least four times if he wanted an attorney. Each time the appellant replied that he did not and the judge explained in detail that he had a constitutional right to be represented by counsel and an attorney would be appointed for him if he could not afford to hire one. The judge indicated that he would give the appellant a chance to talk to his mother about whether to retain an attorney. The following then took place:

THE COURT:. . . After you have an attorney, if you do decide you want one, we’ll discuss the matter further at that time.
MR. DOUGLAS: What I’m saying is the reason I don’t want an attorney I know I’m guilty of the charges. I just want to let you choose whoever you want to choose.
THE COURT: Well, now ah, I don’t. . . I’m not going to accept any kind of a plea today until you’ve had an opportunity to talk to a lawyer. I’m going to safeguard your rights and let you talk to a lawyer. Okay?
MR. DOUGLAS: Yes, sir.

At the subsequent jury trial and over the appellant’s objection, the state read the open court confession into evidence. The appellant’s first two assignments of error are that the trial court erred in admitting the confession and thereby violated his fifth, sixth and fourteenth amendment rights.

In support of this allegation, the appellant maintains the court erred in finding he had knowingly, intelligently, and voluntarily waived his fifth and fourteenth amendment rights at the time he made the statement in court. The basis of the appellant’s argument is that the trial court refused to accept the confession as a guilty plea. The appellant maintains this refusal was an indication the trial judge thought the appellant had not properly waived his rights.

We disagree with the appellant’s interpretation of the trial judge’s actions. The purpose of the hearing was to inform the appellant of the charge against him and its penalties, advise him of his rights, and set bail. It was not to accept a plea. In fact, the appellant pled not guilty later that same day and waived a formal arraignment. In addition, there is evidence that the trial judge found the appellant did have the capacity to understand his rights and to waive them. The appellant confessed to the police at the time he was arrested. Although that confession was not used against him at the trial, a Denno hearing was held to determine whether the statement was made voluntarily. The trial judge found that it was and ruled that the statement was admissible. Since a hearing had been held and the second confession was made in open court after the judge had repeatedly informed the appellant of his rights, the judge had an ample basis from which to determine the voluntariness of the second confession.

On appeal we make an independent determination of voluntariness based on the totality of circumstances surrounding the statement and do not reverse unless the trial court’s finding is clearly against the preponderance of the evidence. Hayes v. State, 274 Ark. 440, 625 S.W. 2d 498 (1981). “Among the factors to be considered in determining the validity of a confession are the age, education, and intelligence of the accused, the advice or lack of advice of his constitutional rights, the length of detention, the repeated or prolonged nature of the questioning, or the use of mental or physical punishment.” Cessor v. State, 282 Ark. 330, 668 S.W.2d 525 (1984).

Here the appellant was 15 and was nine weeks short of completing the ninth grade. He was advised numerous times of his right to counsel and his other constitutional rights and signed a waiver form. There was no prolonged detention, repeated questioning, or use of punishment and, in fact, when the confession was made the appellant was not being questioned at all.

The appellant’s youth is the only one of the enumerated factors present in this case. We have held that although youth is a factor, it alone is not a sufficient reason to exclude a confession. Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981). We have also stated that “a minor is capable of making an admissible voluntary confession, there being no requirement that he have the advice of a parent, guardian, or other adult.” Mosley v. State, 246 Ark. 358, 438 S.W.2d 311 (1969). See also: Leonard v. State, 269 Ark. 146, 599 S.W.2d 138 (1980); and Jackson v. State, 249 Ark. 653, 460 S.W.2d 319 (1970). Based on our independent review, the statement was voluntary.

Since we find the statement was made voluntarily, we have no difficulty ruling that it was admissible. This court has ruled previously that spontaneous admissions of guilt by a criminal defendant are admissible. In Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980), the court allowed a spontaneous statement to be introduced which was made while the appellant was in custody but not during an interrogation. We held:

It was police misconduct that was intended to be inhibited by Miranda, . . . and its progeny and not the making of incriminating statements. Statements which do not result from in-custody interrogation are not barred . . . Spontaneous, voluntary and unsolicited statements made when an accused, although in custody, is not being interrogated are admissible . . . (citations omitted).

We have reiterated this rule several times. See: Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981); Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984); Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977); and Lacy v. State, 271 Ark. 334, 609 S.W.2d 13 (1980).

In Anderson v. City of El Dorado, 243 Ark. 137, 418 S.W.2d 801 (1967) we did not allow an open court statement to be admitted. In that case the appellant was arrested and then confessed. At his trial in municipal court the appellant denied he had committed the crime but admitted he had confessed to the police. The circuit court on appeal ruled the statement made in municipal court was admissible. This court held that as a general rule a statement made in open court is a judicial statement and is admissible. However, the statement was inadmissible in the first place because when the appellant confessed to the police he did not have an attorney and the confession occurred during an interrogation. We held that since the confession was barred it could not be subsequently admitted as a judicial admission. This case is distinguishable from Anderson because here the statement was never barred as a violation of the appellant’s constitutional rights and was not made during an interrogation. It therefore falls within the general rule governing judicial statements.

Also distinguishable is Walton v. State, 236 Ark. 439, 336 S.W.2d 707 (1963), where the appellant signed a written confession and then at his arraignment, admitted under questioning by the prosecutor that his statement to the police was made voluntarily. This court held the transcript of the arraignment was not admissible at the trial because the appellant did not have an attorney when the statement was made. The in-court statement in Walton however occurred during questioning by the prosecutor and was therefore not a spontaneous admission of guilt like, the statement made by the appellant in the instant case.

Although the appellant did not have an attorney when he made his spontaneous admission, “[t]he purpose of the constitutional guaranty of a right to Counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights . . .”, Swagger v. State, 227 Ark. 45, 296 S.W.2d 204 (1956), quoting Johnson v. Zerbst, 304 U.S. 438 (1938). The appellant was not ignorant of his constitutional rights in this case, having been repeatedly advised of them by the police and the judge.

The appellant’s final basis for arguing that his confession was improperly admitted concerns the failure of the trial court to hold a Denno hearing on the voluntariness of that statement. Prior to trial, the appellant filed a motion to suppress the confession he made to the arresting officers. A Denno hearing was held and the judge found that ample Miranda warnings had been given to the appellant and he signed the rights form evidencing the fact that the warnings were given. Immediately before the trial began, the appellant renewed his motion to suppress to include the open court confession.

The same judge who heard the in-court statement denied the motion to suppress on the basis that he gave the appellant several warnings as to his rights during the hearing before the statement was made and the appellant indicated he did not want an attorney and then spontaneously admitted guilt. Under these circumstances, the judge was not required to hold a second Denno hearing. His findings from the hearing he did hold plus his own experience of witnessing the confession were a sufficient basis for his ruling. The confession was properly admitted.

The appellant next challenges the introduction into evidence of a rape kit and alleges that a proper chain of custody was not established by the state.

The state offered testimony by Dr. James T. Clark, the examining physician who collected the specimens for the rape kit, that he placed all the items in a sack which was stapled and turned over to the sheriff’s office in his presence. Deputy Sheriff Robin Hood testified he received the sealed rape kit from a person at the hospital and the sack was labeled “sexual assault kit” “victim Olga Harris” with the date and time of the examination. Sheriff David Hyatt stated he received the kit from the deputies and locked it in the property closet. From there, the rape kit was taken to the state crime lab by another deputy sheriff, Lawrence Allen. Edward Vollman, forensic serologist and hair examiner at the state crime lab, testified the kit was received in the central evidence section of the crime lab by Debby Pitman. Vollman said he got the kit from Ms. Pitman and conducted tests on the items in the bag.

The appellant’s challenge to the chain of custody is based on the fact that Deputy Hood could not identify who he got the kit from at the hospital; that Sheriff Hyatt and deputy Allen never saw the contents of the bag and therefore could not be certain what it contained; and that Vollman could not state that he received the rape kit directly from Deputy Allen.

We have held that, “[m]inor uncertainties in proof of chain of custody are matters to be argued by counsel and weighed by the jury, but they do not render evidence inadmissible as a matter of law,” Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978). In our previous decisions on this issue we have stated that where there is little likelihood that an exhibit has been tampered with it may be admitted. We set out the purpose of the rule requiring a chain of custody in Gardner as follows:

The purpose of the rule requiring a chain of custody is to prevent the introduction of evidence which is not authentic. It is not necessary that the statement eliminate every possibility of tampering, if the trial court is satisfied that in reasonable probability the evidence had not been tampered with. In such matters, the trial judge is accorded some discretion, in the absence of evidence indicating tampering with the evidence, and we will not reverse the trial judge’s ruling unless we find an abuse of discretion.

See also: Wickliffe & Scott v. State, 258 Ark. 544, 527 S.W.2d 640 (1975); Baughman v. State 265 Ark. 869, 582 S.W.2d 4 (1979); and Downs v. State, 259 Ark. 287, 532 S.W.2d 427 (1976).

The appellant offered no evidence of tampering with the rape kit or of any other prejudicial handling of the evidence. The chain of custody which was established was sufficient to safeguard the authenticity of the kit. It was properly admitted.

The appellant’s final assignment of error concerns the jurisdiction of the sentencing court. The appellant was charged in Drew County but the trial was held in Ashley County due to a successful motion for a change of venue. The Ashley County jury found the appellant guilty and sentenced him to 40 years imprisonment. The judge orally pronounced sentence on the appellant in court after the verdict was rendered. The written judgment and commitment however was filed in Drew Circuit Court. The appellant argues Drew Circuit Court lacked jurisdiction to sentence him based on an Ashley County jury verdict. The appellant did not raise this argument below but he argues that he could not because he did not know the judgment and commitment was being filed in Drew County until he received a filed copy in the mail.

The appellant has failed to show in what manner he was prejudiced by the filing of the judgment and commitment in Drew County. The sentence imposed by the jury and pronounced by the judge was the same as the sentence contained in the filed order. We do not reverse for nonprejudicial error. Berna v. State, 282 Ark. 563, 670 S.W.2d 435 (1984).

The judgment and commitment should have been filed in Ashley County where the trial was held. Accordingly we order the trial judge to see to it that the judgment and commitment is filed with the Ashley Circuit Court Clerk.

Affirmed as modified.

George Rose Smith, J., not participating.


text:
    Ann M. LUECKE, Ex’x of the Estate of Nell S. SIMPSON, Deceased v. MERCANTILE BANK OF JONESBORO, AR., Ex’r of the Estate of S.L. SIMPSON, Deceased; Marion S. CURTNER & Mary Laura BEENE
    85-32
    691 S.W.2d 843
    Supreme Court of Arkansas
    Opinion delivered June 24, 1985
    [Rehearing denied July 15, 1985.]

      Clayton L. Phillips, Jr.; Gann, Fried & Edwards, by: Mac Gann; and Laney, Gaughan & Womack, by: Robert S. Laney, for appellant.

      Shaver, Shaver & Smith, by: J.L. Shaver, Jr., and Frierson, Walker, Snellgrove & Laser, by: G.D. Walker, for appellant.

       George Rose Smith and Dudley, JJ., not participating.

   Jack Holt, Jr., Chief Justice.

S.L. Simpson of Jonesboro murdered his wife, Nell S. Simpson, and then killed himself. At issue in this case is the effect the murder-suicide had on the estates of the respective parties, and in particular, on Mr. Simpson’s will. Our jurisdiction is pursuant to Sup. Ct. R. 29(1)(p).

Mrs. Simpson was killed on October 7,1978. Although Mr. Simpson immediately tried to kill himself, he did not die of his self-inflicted injuries until the next day.

Both parties left wills. Mrs. Simpson’s, which is in probate, named her daughter, Ann M. Luecke, as executrix and sole beneficiary. Mr. Simpson’s will, which is also in probate, appointed the appellee, Mercantile Bank of Jonesboro, as executor. In his will, Mr. Simpson left all interest in the household goods, furniture, fixtures and appliances in the jointly owned residence to his wife, and further left her I/3 of the rest of his estate, including real and personal property, certificates of deposit, stocks, bonds and notes. The remainder of the estate he left to the other appellees, his daughters by a previous marriage, Marion S. Curtner and Mary Laura Beene.

Mr. and Mrs. Simpson owned a residence, an automobile, and a $40,000 certificate of deposit as tenants by the entirety. Other property included a $40,000 CD in the name of S.L. Simpson, payable on death to Nell S. Simpson and a $20,000 CD in the name of Nell S. Simpson, payable on death to S.L. Simpson.

Mr. Simpson owned in his own name 1,905.33 acres of farm land valued in excess of $1,000,000 and personal property valued in excess of $748,000.

The appellant filed a wrongful death action in United States District Court against the appellees which proceeded to judgment in her favor. The judgment, which has been paid, found that Mrs. Simpson’s death was a result of the wrongful conduct of Mr. Simpson.

The appellant then filed a petition to quiet title which sought to establish the appellant’s interest in the real and personal property held jointly or as tenants by the entirety by Mr. and Mrs. Simpson. The suit also sought to impose a constructive trust on the assets of Mr. Simpson’s estate for the benefit of Mrs. Simpson.

On September 11, 1984, the Craighead Chancery Court entered a decree ordering:

1) the CD in the name of Mrs. Simpson, payable to Mr. Simpson, vested in Mrs. Simpson’s estate (that was conceded by the parties);

2) All jointly held property was to be allocated V2 to the estate of Mr. Simpson and V2 to the estate of Mrs. Simpson;

3) The CD in the name of Mr. Simpson, payable to Mrs. Simpson vested in Mr. Simpson’s estate;

4) All the real and personal property owned by Mr. Simpson in his name vested in his estate and in the devisees under his will, exclusive of Mrs. Simpson and her estate.

It is from the decree that this appeal is brought. The appellant argues that the court erred in all respects in the disposition of the property, with the exception of the CD in Mrs. Simpson’s name which vested in her estate.

The appellant asks this court to adopt either of two theories which would allow Mrs. Simpson’s heirs to inherit Mr. Simpson’s property, even though she predeceased him. First, the appellant urges the court to indulge in a legal fiction and hold that where one spouse kills another, the killer is considered to have predeceased the victim for purposes of descent and distribution. The second theory urged by the appellant concerns the principle of restitution. The appellant maintains that since public policy prohibits one from retaining benefits which are acquired by wrongful conduct, the appellees would be unjustly enriched were they allowed to benefit from the fact that Mrs. Simpson’s death caused her legacies under Mr. Simpson’s will to lapse. Appellant therefore asks the court to impose a constructive trust on the assets of Mr. Simpson’s estate for the benefit of Mrs. Simpson’s estate as restitution for the benefit conferred upon his estate by his wrongful conduct.

In rejecting these theories the trial court found that there is no Arkansas authority for reversing the order of death in a murder/suicide situation and that constructive trusts do not apply in a case involving this fact situation. As to the jointly owned property the trial court found the logical conclusion was that the murder/suicide severed the marital relationship and the parties became tenants in common, entitling each to recover xh of the property. We agree with the rationale of the trial court and affirm its judgment.

We have long followed the rule that one who wrongfully kills another is not permitted to profit by the crime. Horn v. Cole, Adm’r, 203 Ark. 361, 156 S.W.2d 787 (1941); Wright v. Wright, 248 Ark. 105, 449 S.W.2d 952 (1970); Sargent, Estate of v. Benton State Bk., Adm’r, 279 Ark. 402, 652 S.W.2d 10 (1983); Kimrey v. Booth, 285 Ark. 18, 685 S.W.2d 139 (1985); and Ark. Stat. Ann. § 61-230 (Repl. 1971).

Here, however there is no effort by the estate of Mr. Simpson to recover anything from Mrs. Simpson’s estate. Mr. Simpson’s heirs are not the recipients of any ill gotten gains. At most, Mrs. Simpson had a contingency interest in Mr. Simpson’s estate based on her dower interest and the specific provisions of his will. That contingency never ripened into a vested interest since Mrs. Simpson died first.

The purpose underlying our general rule that a person not profit from a wrongful act is to deter such conduct. The rule is inapplicable where the wrongdoer stands to gain nothing by his act, as where he kills himself too.

This is not a new rule in Arkansas. In Belt v. Baser, 238 Ark. 644, 383 S.W.2d 657 (1964) this court considered whether life insurance proceeds could be paid to the heirs of the insured when the insured killed the policy’s beneficiary and then killed himself. We quoted a New Jersey case as follows:

“ ‘Public policy is based upon the theory that the murderer himself intends to enjoy and that that is the reason he murdered; but where he could have no enjoyment out of it, he could not have had the intent. The rule of public policy doesn’t apply at all.’. . . When the reason for the application of the rule does not exist the rule cannot be invoked.” Union Central Life Ins. Co. v. Elizabeth Trust Co., 183 Atl. 181 (N.J. 1936).

See also Barnes v. Cooper, Adm'r, 204 Ark. 118, 161 S.W.2d 8 (1942).

Since we hold that under the facts of this case the appellees are not profiting from their father’s wrongful conduct, we decline to follow either of the theories proposed by the appellant. Specifically, our case law does not provide a basis for the legal fiction that Mr. Simpson predeceased Mrs. Simpson for purposes of descent and distribution. Nor is this a proper case for the award of restitution. As previously stated, the only interest Mrs. Simpson had in the real and personal property owned by Mr. Simpson in his own name was as a beneficiary under his will and through her dower interest. When she predeceased him, she never acquired any further claim, because her death prevented her dower interest from vesting, LeCroy v. Cook, Comm. of Revenues, 211 Ark. 966, 204 S.W.2d 173 (1947), and caused her legacies under the will to lapse, Christy v. Smith, Adm’r, 226 Ark. 289, 289 S.W.2d 885 (1956).

As to the property held by Mr. and Mrs. Simpson as tenants by the entirety, we think the better rule is that applied by the trial court which holds that the murder/suicide severed the marital relationship and the parties became tenants in common, entitling each to recover xh of the property. In adopting this viewpoint, we apparently align ourselves with the majority of courts who have ruled on this subject. 42 ALR3d 1116 § 12 (1972). See also Palmer, Law of Restitution, § 20.13 p. 255 (1978). The effect of the severance of the marital relationship is much like that caused by divorce. Likewise, our holding is consistent with our statutory law on divorce which provides for a similar equal division of the property, Ark. Stat. Ann. § 34-1215 (Supp. 1983).

The $40,000 CD issued to S.L. Simpson was also properly awarded to his estate. Arkansas Stat. Ann. § 67-1838(5) provides that, upon the death of the holder of such an account, “The person or persons designated by him and who have survived him shall be the owners of the account.” Therefore, since survival of the designated beneficiary is a requirement, the CD did not pass to Mrs. Simpson or to her estate.

Affirmed.

George Rose Smith, J., not participating.


author: George Rose Smith, Justice.

text:
    AMERICAN NATIONAL BANK OF AUSTIN, TEXAS v. Edward L. DUX, Christine DUX, His Wife, and William G. STEVENSON
    85-46
    691 S.W.2d 851
    Supreme Court of Arkansas
    Opinion delivered June 24, 1985

      John W. Unger, Jr., for appellant.

      James J. Calloway, for appellees.
   George Rose Smith, Justice.

This case presents questions of priority between (a) a mortgage lien held by the appellant bank upon the share of the working interest owned by the appellees Dux in several oil and gas leases under which oil has been produced for several years and (b) an oil well operator’s statutory lien being asserted by the appellee Stevenson upon that same share of the working interest in the leases. The chancellor awarded priority to Stevenson upon the main issue and to the bank upon a minor issue. The bank’s direct appeal and Stevenson’s cross appeal bring both issues to us under Rule 29(1 )(c) and (n). We affirm the decree.

For some time before the Duxes mortgaged their share of the working interest to the bank, they had been co-owners of that interest along with Stevenson and others. In that situation it is customary for the owners to select one of their number as the operator of the working interest. Stevenson was so designated, by oral agreement. He operated the wells for some time, advancing the necessary operating funds himself and looking to his co-owners for proportionate reimbursement.

On August 1,1979, the Duxes, to secure a $50,000 promissory note, gave the bank a mortgage upon their interest in the leaseholds, the oil wells, and the appurtenant equipment, and upon their right in the future to receive payments from the purchaser of the oil being produced. The mortgage and a companion security agreement were promptly recorded. At that time the Duxes were not delinquent in their duty to reimburse Stevenson for operating expenses.

Almost three years later, however, on June 1, 1982, the Duxes stopped reimbursing Stevenson for his advances and stopped paying the interest on their debt to the bank. The bank asked the TOSCO company, the purchaser of the oil being produced, to make its payments to the bank rather than to the Duxes. TOSCO began complying with that request.

On October 13, 1982, after the Duxes had stopped paying Stevenson and the bank, Stevenson filed suit to foreclose his operator’s lien upon the Duxes’ share of the working interest and related equipment. The Duxes and the bank were named as defendants. About six months later the bank brought suit to foreclose its mortgage, naming the Duxes and Stevenson as defendants. The two suits were consolidated for trial. TOSCO held its payments in suspense while the cases were pending. The chancellor gave Stevenson a first lien on the Duxes’ share of the leasehold interest and equipment, but awarded the suspense funds to the bank.

First, the direct appeal. Stevenson’s suit was brought to foreclose his operator’s lien (miner’s lien) under Act 615 of 1923. Ark. Stat. Ann. §§ 51 -701 to -710 (Repl. 1971).. Section 51 - 701 creates a lien upon the leasehold interest itself (not upon the oil that is produced) and upon the oil well and its equipment, in favor of any person (here Stevenson) who furnishes labor, material, or supplies for the drilling 'of an oil well or for its operation and maintenance. Section 51-708 provides that the operator’s lien is to be preserved and enforced in the same time and manner as mechanic’s liens; provided, that where the labor or material was furnished under an open, running account, “the same shall be construed as a continuous contract,” and the time for filing the verified account shall be computed from the time the last labor was performed or the last 'material or supplies were furnished.

The bank argues that under the mechanic’s lien law Stevenson was required either to give a 10-day notice of his lien or. to file suit within 120 days (formerly 90 days) after the Duxes defaulted on June 1. Ark. Stat. Ann. §§ 51-608 and -613; Robins v. East Ark. Builders’ Supply Co., 199 Ark. 1174, 137 S.W.2d 924 (1940). But under the mechanic’s lien law the time begins to run not from the date of a default but from the time the last item is furnished. Whitener v. Purifoy, 177 Ark. 39, 5 S.W.2d 724 (1928). The time had not begun to run in this case, because Stevenson was still supplying labor and materials for the operation of the wells even at the time of the trial. Hence the notice provision and time limitation were not applicable to this case. The bank was obviously not prejudiced by Stevenson’s having filed his suit even earlier than he might have done to maintain his priority.

The bank also argues that since its mortgage was recorded back in 1979, Stevenson could not acquire priority with respect to funds advanced almost three years later. The chancellor correctly held, on the authority of Smith v. Luster, 176 Ark. 263, 2 S.W.2d 1104 (1928), that because the bank took a mortgage on a working interest in leases that were already in production, the bank was bound to know that the operator furnishing the necessary supplies for production might later have to assert a lien for his advances. Stevenson could not have asserted his miner’s lien until some date after June 1,1982, because until then the Duxes were current in their payments and owed him nothing. As we have said, under the lien laws the suit was not untimely. Certainly a delay of four and a half months after the earliest moment suit could have been filed was reasonable and did not prejudice the bank. Both the letter of the law and the underlying equities are on Stevenson’s side on the direct appeal.

Second, the cross appeal. It was stipulated that during the pendency of the suit TOSCO had withheld $28,274.88 as the Duxes’ share of the proceeds from the sale of oil. During the same period the Duxes’ share of the costs advanced by Stevenson came to $15,408.50. The chancellor held that the bank was entitled to all the money held in suspense by TOSCO.

Stevenson argues that he is entitled to an equitable lien on the suspense fund to the extent of his advances, because the bank is receiving the benefit of his operation of the oil wells. We think this argument approaches the problem from the wrong direction. Under the miner’s lien statute, Stevenson has a lien on the Duxes’ interest in the leasehold and drilling equipment. As we have seen on the direct appeal, Stevenson had priority over the bank as to that property. Under the decree it is to be sold, with the proceeds of sale being applied first to the judgment in favor of Stevenson for his advances.

The situation is different as to the proceeds derived from the sale of the oil. The bank’s mortgage from the Duxes gave it a contractual lien upon their share of that production. The miner’s lien statute does not give the operator a lien on the oil produced, only on the leasehold and equipment. It was the Duxes’ duty to reimburse Stevenson for his advances. They could not have demanded that the bank use its own funds to satisfy their obligation to Stevenson. Whatever claim Stevenson may assert to an equitable lien on the suspense fund must be based upon his contractual relation with the Duxes, since he has no such claim under the lien statute or by contract with the bank. Consequently, if Stevenson is given priority over the bank with respect to the suspense fund, he is in effect forcing the bank to pay the Duxes’ obligation, which the Duxes themselves could not have done. Hence the chancellor was right in awarding the bank priority with regard to the suspense fund, its lien being superior to Stevenson’s derivative claim.

Affirmed.


text:
    Robert Henry BIVINS v. STATE of Arkansas
    CR 85-30
    691 S.W.2d 847
    Supreme Court of Arkansas
    Opinion delivered June 24, 1985

      William R. Simpson, Jr., Public Defender, and Arthur L. Allen, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Connie C. Griffin, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The appellant Bivins was convicted of burglary and attempted rape and was sentenced to consecutive terms of 20 and 30 years. The length of the sentence brings the case to this court under Rule 29(l)(b). The only argument for reversal is that the court erroneously allowed the prosecutor to refer in his closing argument to the defendant’s post-arrest silence. The argument is without merit.

On March 4, 1984, the prosecutrix was living with her children in a mobile home next to another one occupied by Michael Nix and his wife. Bivins is Michael’s cousin and was spending that night at the Nix home. The prosecutrix testified that at about 4:30 a.m. she awoke to find a man lying on top of her and kissing her. She began screaming and ran to the Nixes’ home for help. The sheriff was called; his deputies arrived within a few minutes. They searched the area before learning that Bivins, whom the prosecutrix knew by sight, was next door. A deputy then got Bivins out of bed and took him to the prosecutrix, who identified him as her assailant. Other than that, the record contains no testimony about the arrest or about Bivins’s interrogation by the police, if in fact he was interrogated. Mrs. Nix brought Bivins’s wet, dirty socks to the officers. An expert witness testified that the soil on the socks matched a sample taken from near the prosecutrix’s home, but the comparison was not positive enough to be conclusive.

Bivins himself was the only defense witness. He denied that he had been in the prosecutrix’s mobile home at all. He said he and the Nixes spent the evening at a club which closed at midnight. Bivins had too much to drink. When the three got back to the Nix mobile home, Bivins stayed up a little later than the others, watching television. Before going to bed he felt sick and went outside to throw up, not wanting to mess up the trailer. Defense counsel brought out on direct examination that Bivins was wearing only his britches and socks when he went outside. On cross examination the following occurred, without objection:

Q. I guess you didn’t tell anybody that you went out there and throwed up, did you?
A. Wasn’t no sense in it.
Q. Even later?
A. No, sir.

The argument for reversal is based on this incident during the prosecutor’s closing argument, as to which the record contains only the following excerpt and nothing more:

Prosecutor: [Mr. Bivins] heard the testimony today about the socks, and all of a sudden it became important that he get those socks wet and get them dirty outside. So, that’s when we come up with the story about throwing up, a story that he never had told anybody else before. It’s because he’s not sitting back there in that room. He can hear what everybody else says and get his story straight.
Defense Counsel: Excuse me. Your Honor, I’m going to have to object to that, Mr. King’s last remark about whether or not Mr. Bivins has told anyone about this. And I’m prepared to offer testimony about whether or not if Mr. King implies this is some recent fabrication made up here today.
The Court: Gentlemen, this is merely argument. We have received all the evidence and the jury can disregard it. They heard the testimony.

Assuming, without deciding, that defense counsel obtained an adverse ruling upon his objection, there was no error. Here the appellant relies on the Supreme Court’s ruling in Doyle v. Ohio, 426 U.S. 610 (1976), which we followed in Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985). Those cases, however, are significantly different from this one.

In both Doyle and Thompson the accused had been given the Miranda warning when arrested. In neither case did the accused make a statement to the police. At both trials the accused came forward on direct examination with a plausible explanation of his or her conduct at the time of the offense. In both cases, over timely objection, the prosecutor was permitted to question the accused in detail about why he or she had not given the same explanation to the police while being interrogated. The Supreme Court held that the prosecutor’s tactics were so unfair as to deny due process. We quote the essence of the Supreme Court’s reasoning:

The warnings mandated by the Miranda decision . . . require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. . . . Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it is fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. . . .
We hold that the use for impeachment purposes of petitioner’s silence, at the time of arrest and after receiving the Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. [Our italics.]

In the case at bar the situation is wholly different. Here no Miranda warnings are shown. No police interrogation is even suggested: Álmóát '*¿11 the pertinent facts were voluntarily brought put on5direct examination. On cross-examination there was no unfair hoúnding of Bivins about why he had not told his story to the police; as'there was in Doyle and Thompson. Most important, there Was ilo objection to the prosecutor’s two questions'htringiri'g b'úf’t'he'fáct that Bivins had not told his story to anyone,else,. Since,,the testimony was before the jury, the proseputor,ha)d a right.to,refer to it in his closing argument. Yancy v. State, 120 Ark. 350, 179 S.W. 352 (1915); Gordon v. Town of DeWitt 106 Ark. 283, 153 S.W. 807 (1913); Hall, The Bounds of Prosecutorial Summation in Arkansas, 28 Ark. L. Rev. 55, 66 (1974).

Affirippd-io


author: George Rose Smith, Justice. Darrell Hickman, Justice,

text:
    Cecilio VELASQUEZ et al v. Randy CLANTON
    85-42
    691 S.W.2d 849
    Supreme Court of Arkansas
    Opinion delivered June 24, 1985

      Lavey, Harmon & Burnett, by: John L. Burnett and James R. Cromwell, for appellants.

      Huey & Vittiton, by: Clint Huey, for appellee.
   George Rose Smith, Justice.

This suit began as a class action on both sides, dwindled to a dispute between individuals, and now has become moot and must be dismissed.

On May 19,1984, one of the plaintiffs, Ann Johnson, went to the defendant Randy Clanton’s tomato farm in Bradley County to give an English lesson to the other two plaintiffs, Cecilio Velasquez and Alvino Flores, illegal aliens from Mexico who had temporary living quarters on Clanton’s farm, where they were employed by Clanton during the brief tomato harvesting season. Ms. Johnson had been told by telephone that she could come, but when Clanton learned that she was a Catholic he changed his mind and refused to let her remain, saying that Catholics had given him trouble in the past. Ms. Johnson left.

This suit was filed on June 1. Velasquez and Flores sought to represent a class of immigrant farm workers who were being denied their right to receive visitors of their choice at their residences. Ms. Johnson alleged that she was being denied the right to associate with the other plaintiffs and to exercise her freedom of religion. Clanton was named as an individual defendant and as the representative of other tomato growers who were denying similar rights to immigrant farm workers. The prayer was for a temporary injunction allowing visitation and for a judgment declaring that Clanton’s actions violated the plaintiffs’ constitutional rights.

At the trial there was no proof that would support a class action on either side. The only asserted denial of anyone’s rights arose from Ms. Johnson’s attempted visit to the farm. The chancellor refused to grant relief on proof of that isolated incident and dismissed the complaint when the plaintiffs rested their casé. Both Velasquez and Flores had testified they meant to leave Arkansas after the harvest. At the oral argument it was conceded that neither one is now on the Clanton farm; it is unlikely they ever will be.

The case is obviously moot. There is no class right at stake, the case having become a personal dispute. Both Velasquez and Flores are gone, leaving no one at the farm for Ms. Johnson to visit. It is possible that Clanton’s professed aversion to Catholics was a subterfuge, but it would be pointless to remand the case to develop that academic issue of fact. Neither an injunction nor a declaratory judgment can be of practical value to the three plaintiffs as individuals. They now appear in no other capacity.

It is argued that we should issue a declaration of the plaintiffs’ rights, because litigation of this kind can never be completed before the expiration of the brief harvest season. We have frequently decided questions of public interest in a case that has become moot, such as an election contest, because the questions are likely to arise again. Henley v. Goggins, 250 Ark. 912, 467 S.W.2d 697 (1971); Carroll v. Schneider, 211 Ark. 538, 201 S.W.2d 221 (1974). The difficulty in the case at bar is that the question of law has not been developed in an adversary manner. The appellants cite cases to support their rights of association, but the appellee concedes the argument. As between these parties the issue is settled. We must decline the' invitation to lay down binding principles for the future when we have heard only one side of the controversy.

Appeal dismissed.,

Hickman and Hays, JJ., dissent.

Darrell Hickman, Justice,

dissenting. Because of the state’s interest in the treatment of migrant workers during their brief stay here, we should declare formally, just as the trial court almost did, that Ann Johnson, who sought to give two migrant workers English lessons, was wrongly denied permission to visit the workers. But the trial court declined to do so, finding this to be an “isolated” incident.

Johnson is a resident of Bradley County and works regularly with migrant workers. Those workers, mainly Mexican and often illegally in the country, harvest the tomato crop each year in Bradley County. The season is short, and the Mexican workers, many of whom speak no English, need some help in communication. Johnson is Catholic, and the Mexican workers are largely Catholic. It was for this reason alone she was denied access.

Although there is no evidence Of abuse or mistreatment of the workers, the best assurance there will be none is to see that the workers have full access to local people who want to help them during their brief stay in Arkansas. Rather than treat the issue as unimportant and isolated, I would treat it with the respect it deserves. I would declare Clanton wrong and Johnson right, so that next time Johnson would not be denied access as she likely will be now because of the majority’s finding.

I respectfully dissent.

Hays, J., joins in this dissent.


author: John I. Purtle, Justice.

text:
    J&C INVESTMENTS, et al v. MID-SOUTH DRILLING, INC., et al
    85-20
    691 S.W.2d 853
    Supreme Court of Arkansas
    Opinion delivered June 24, 1985

      Henry & Duckett, for appellants.

      Barron & Coleman, P.A., for appellees.
   John I. Purtle, Justice.

The chancellor heard this case for two days and then dismissed appellants’ petition to rescind their purchases of units in Professional Drilling, a limited partnership. There is no doubt, and no dispute, that these units are securities within the meaning of the Arkansas Securities Act. See Schultz v. Rector-Phillips-Morse, Inc., 261 Ark. 769, 552 S.W.2d 4 (1977). The sales of these securities were made pursuant to an exemption from registration under Ark. Stat. Ann. § 67-1248 (b)(9) (Repl. 1980) [hereinafter § 14 (b)(9)] and Rule 14 (b)(9) of the Arkansas Securities Commission. For reversal appellants argue that the facts of this case caused the transaction to lose its exempt status granted by § 14 (b)(9). We hold that the transaction did not lose its exempt status by the actions taken in this case and the trial court did not err.

Jim Dooley, John McCracken and Steve Hockersmith formed a corporation, known as Mid-South Drilling, Inc., for the purpose of being the corporate general partner in a limited partnership called Professional Drilling Limited Partnership. The purpose of all the parties was to obtain an oil well drilling rig and drill for hire. McCracken and Hockersmith were the stockholders and directors of Mid-South. Dooley was president of Mid-South and Hockersmith was Vice President and Secretary-Treasurer. Dooley was also the individual general partner in Professional Drilling.

The limited partnership was formed pursuant to Ark. Stat. Ann. §§ 65-501 - 65-566 (Repl. 1980). Mid-South and Dooley retained 20% of the limited partnership and 80% was sold to investors in units at a price of $34,375 each. The appellees filed a proof of exemption from registration with the Arkansas Securities Commission under §14 (f) and Rule 14 (b)(9). The rule prohibits the use of public advertising or solicitation in connection with an offering of this type. Public advertising is defined by the Commission’s Rule 13 as follows:

Public advertising shall mean any form of general solicitation, general advertising or any other communication directed at random to persons whose background is unknown to the communicant, including but not limited to, the following:
(1) Any advertisement, article, notice or other communication published in any newspaper, magazine, or similar medium or broadcast over television or radio;
(2) Any seminar or meeting or invitation to or promotion of such méeting or seminar;
(3) Any letter, circular, handbill, notice or other written communication; or,
(4) Any telephone solicitation.

The appellants were acquainted with McCracken and Hock-ersmith and, to some extent, with Dooley. Six letters were written by persons unconnected with the offering on behalf of the promoters of the venture. Four were addressed “to whom it may concern” and two each to Dooley and McCracken. Some letters were in praise of Dooley and others were to the effect that prospects for leasing the rig werefgood. Also, there was testimony that the promoters told prospective buyers that the rig was a new one when in fact it was assembled from both new and' rebuilt parts.

The exemption employed by appellees also prohibits sales commissions and other remuneration for the solicitation of buyers. The offering memorandum stated that Mid-South would receive a fee of $125,000. Part of the fee, $28,125, would be for services in obtaining long-term financing and the balance of $96,875 would'be for supervising the construction of the drilling rig.

In' filing the proof of exemption with the Commission, the fees set out above were mentioned. The Commission responded that the fees would not be considered as remuneration for solicitation if the charges were reasonable in light of the services performed. Included in the offering memorandum was an instrument entitled “Construction Supervision Agreement” between Professional Drilling and Mid-South in which Mid-South agreed to supervise construction of the rig and see that it was suitable for the partnership.

Through the sale of investment units and considerable bank financing the partnership eventually obtained a drilling rig and a contract to drill a well. All did not go well. Among other things the mud pumps for the drilling rig failed to perform satisfactorily. The net result was that, through the failure of the rig and lack of other leases, the project failed. The banks repossessed the rig and the investors lost their money. Appellants filed suit against the appellees alleging that appellees had violated the securities act exemption by use of unauthorized literature. Appellants also alleged that appellees violated the exemption by accepting commissions or other remuneration for the solicitation of buyers. Finally, it was alleged that the appellees offered and sold securities by means of untrue statements of material facts and by failure to disclose facts which should have been revealed. Appellants claimed the right to rescind their purchases, and asked for the return of all consideration paid, together with interest, costs and reasonable attorney’s fees. A trial was held after which the trial court entered its decree dismissing the appellants’ cause of action. Appellants rely upon three arguments, which will be set out below, in support of their claim that the case should be reversed.

I

THE TRIAL COURT ERRED IN FAILING TO FIND THAT APPELLEES VIOLATED THE CLAIMED SECURITIES ACT EXEMPTION BY THE USE OF SALES LITERATURE AND APPELLANTS ARE ENTITLED TO RESCISSION UNDER ARK. STAT. ANN. § 67-1256 (a)(1).

The argument under this point is that the letters exhibited to prospective buyers were public advertising which voided the exemption under Rule 14 (b)(9). It is not alleged or proved that the letters were shown to anyone other than those offerees included in the exempt offering. Rule 14 (b)(9) prohibits any form of public advertising or solicitation. Specifically included in Rule 13’s definition of prohibited items are “letters.” Some of the letters were indeed addressed “to whom it may concern.” However, the letters were exhibited upon request of the prospective buyers by one of the officers of Mid-South. There is no evidence that the material was exhibited to the general public in any manner. We think that the “letters” prohibited by Rules 13 and 14 (b)(9) are those directed at random to persons whose background is unknown to the communicant. Hockersmith testified that the letters were shown only to offerees who specifically asked about something addressed by the letters. It seems to us that the type of communication employed here is not the type intended to be prohibited. The trial court had the right to believe Hockersmith. It is also possible that failure to disclose the material contained in some of the letters would have put appellees in violation of Ark. Stat. Ann. § 67-1235 (Repl. 1980). That statute makes it unlawful to fail to state a material fact which would prevent the offeror’s material from being misleading. We cannot say that the trial court was clearly in error in finding that the use of these letters did not violate the exemption from registration.

II

THE TRIAL COURT ERRED IN FAILING TO FIND THAT APPELLEES VIOLATED THE CLAIMED SECURITIES ACT EXEMPTION BY THE RECEIPT OF SALES COMMISSIONS OR OTHER REMUNERATIONS AND APPELLANTS ARE ENTITLED TO RESCISSION UNDER ARK. STAT. ANN. § 67-1256 (a)(1).

On the front end, in,the offering memorandum, it was stated that Mid-South would reserve the sum of $125,000 from the proceeds of the offering. Of this sum, the amount of $28,125 was to be paid to Mid-South for negotiating and obtaining long-term financing. The remaining $96,875 was the fee for supervising the assembly of the drilling rig. It is not disputed that, under the exemption, appellees are not entitled to any fee for solicitation and sales of the partnership units. Appellees informed the Securities Commission of the intended charges and inquired whether payment of such charges would violate the exemption. The Commission advised that such charges would not be considered fees for sales or solicitation provided the charges were reasonable in light of the services performed. The Commission’s interpretation of this provision of the exemption seems to be in line with the view taken by a majority of the courts and securities commissions which have dealt with the issue. See J. Long, 1985 Blue Sky Law Handbook § 5.05 [5]. There was a lot of testimony as to whether the charges were reasonable in light of the circumstances. Dooley accompanied the tool pusher to the construction site and made some changes on the rig, which was then 50% completed. The rig was purchased from L.P.C., Inc. The contract provided that L.P.C. would construct the drilling rig for Mid-South for the sum of $2,250,000. Mid-South was granted the right to inspect the rig during construction and to reject all or part of the rig. Dooley had in fact never been a tool pusher, nor had he ever supervised the assembly of a rig or drilled a well. One of the letters mentioned earlier was from Jerry Jones, who is a successful person in the oil business. His letter indicated that Dooley was the equivalent of an engineer in supervising employees and in rig maintenance. Appellants vigorously argue that these fees were merely a sham to justify payment of fees to McCracken and Hockersmith, the stockholders in Mid-South, the corporate general partner. They contend the fees bore absolutely no relationship to the services provided by Mid-South and its officers. Again, evidence was offered on both sides in support and against the reasonableness of the fees. The trial court found, “that the fees paid were customary and.not excessive in light of the services rendered, nor did the said fees constitute sales commissions or other remuneration within the meaning of the act.” McCracken, Hockersmith and Dooley did not individually receive any of the $ 125,000 fee which was paid to Mid-South. The appellants offered no independent evidence to prove that the fees were unreasonable. Since the fees were set out in the offering memorandum, qualifiedly approved by the Commission and endorsed by the trial court’s finding, we hold that the charges in this case did not violate the securities act exemption.

Ill

THE TRIAL COURT ERRED IN FAILING TO FIND THAT APPELLEES OFFERED AND SOLD SECURITIES BY MEANS OF UNTRUE STATEMENTS OF MATERIAL FACTS AND BY OMISSIONS OF MATERIAL FACTS AND APPELLANTS ARE ENTITLED TO RESCISSION UNDER ARK. STAT. ANN. § 67-1256 (a)(2).

Appellants argue that the appellees are liable pursuant to the provisions of Ark. Stat. Ann. § 67-1256 (a)(2) (Repl. 1980) in that said statute imposes liability on a seller of securities for making untrue statements of facts or failing to state a material fact which is necessary in order to make the statement made not misleading. There is a duty to disclose all material facts to a purchaser of securities. Lane v. Midwest Bancshares Corp., 337 F. Supp. 1200 (E.D.Ark. 1972); C&C Electric Const. Co., Inc. v. Rogers, 281 Ark. 178, 663 S.W.2d 707 (1984). The appellants claim representations were made that the rig was new when in fact it was not new. The testimony at the trial indicated that, with few exceptions, the rig was assembled with new or rebuilt parts. There was testimony that this is the usual and customary manner of assembling drilling rigs. Also, there was a claim that Mr. Dooley’s experience was overstated. At trial he testified that he had participated in the “nuts and bolts” of at least 50 rigs and that none, of them were constructed of entirely new1 parts. The partnership paid the sales tax on a new rig. Another argument was that the offerors had overstated the availability of work for the rig. Testimony was adduced at the trial that at the time the venture started, work was plentiful but by the time it started drilling, the economy had drastically changed. None of the materials used by appellees represented anything more than the belief that if all went well with the first drilling job, more would be forthcoming. No statement was made that any contracts were certain to materialize.

Since there was direct and material testimony in favor of appellees on all contested matters, we cannot hold that the chancellor’s decision was clearly erroneous.

Affirmed.

Holt, C.J., and George Rose Smith, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Sonny MEDFORD, d/b/a MEDFORD ELECTRIC, INC. v. WHOLESALE ELECTRIC SUPPLY COMPANY, INC.
    85-48
    691 S.W.2d 857
    Supreme Court of Arkansas
    Opinion delivered June 24, 1985

      Daggett, Van Dover, Donovan & Cahoon, by: Robert J. Donovan, for appellant.

      W. Frank Mor ledge, P.A., for appellee.
   Robert H. Dudley, Justice.

Appellee, Wholesale Electric Supply Co., Inc., filed suit on an open account against appellant, Sonny Medford, d/b/a Medford Electric, Inc. Appellant countered that the interest charges were usurious. The trial court held that the charges were valid because of provisions in the Monetary Control Act of 198.0.12 U.S.C. § 86a. We affirm. This Court has jurisdiction to decide cases involving usury. Rule 29(l)(e).

The open account is for a series of purchases of electrical materials which occurred between April 1981 and December 1982. The materials were resold by appellant through his electrical contracting business. Before December 2,1982, appel-lee charged 5/6 of 1% per month or 10% per year, on the open account. On December 2,1982, appellee started charging simple interest of 1.25% per month, or 15% per year. The rate of interest amounted to five percent in excess of the Federal Reserve discount rate for 90 days commercial paper at that time. On December 2, 1982, the date the interest rate on the account was increased to above 10 percent, the entire principal balance of the account was due. It amounted to over $10,000.00.

Neither party argues that Amendment 60 is applicable to the case, and we do not address that issue. Appellant argues that the appellee failed to meet its burden of proving a “loan in the amount of $1,000.00 or more” which would cause the provisions of 12 U.S.C. § 86a to be applicable.

Prior to the federal Monetary Control Act of 1980, and prior to the adoption of Amendment 60 to the Arkansas Constitution, the 1982 Interest Rate Control Amendment, there was a maximum fixed rate of interest applicable to Arkansas loans. Article 19, Section 13 of the Constitution of Arkansas. With the provision for a maximum fixed rate of interest, a contract was either usurious or not usurious on its face. We held that if it was usurious on its face, the holder had the burden of proving its validity, but if it was not usurious on its face, the borrower had the burden of proving its invalidity. See Knox v. Goodyear Stores, 252 Ark. 530, 479 S.W.2d 875 (1972); Nineteen Corp. v. Guar. Fin. Corp., 246 Ark. 400, 438 S.W.2d 685 (1969). However, we no longer have a maximum fixed rate. Now, under either federal or state law, the maximum rate of interest is a variable one — whatever rate equals five percent in excess of the Federal Reserve discount rate on 90 day commercial paper. Therefore, a contract no longer can be usurious on its face and, as a result, the borrower will always have the burden of proving usury. Consequently, the appellant had the burden of proving usury in this case.

Both parties agree that the Monetary Control Act of 1980 is the act which governs this case. The pertinent part of the Act, Section 86a, provides that business or agricultural loans in the amount of $ 1,000.00, or more, made on or after April 1,1980, but before the effective date of Amendment 60, may lawfully bear interest at the rate of 5 percent in excess of the Federal Reserve discount rate on 90 day commercial paper. This open account accrued during that period. The act defines a loan in the following terms:

(1) the*term “loan” includes all secured and unsecured loans, credit sales, forbearances, advances, renewals or other extensions of credit made by or to any person or organization for business or agricultural purposes; (Emphasis added.)

The open account before us falls into the category of credit sales, advances and extensions of credit. Consequently, it was a loan as defined by the act. In addition, it was for business purposes.

Appellant contends that even if it was a business loan, it was not a loan in the amount of $1,000.00 or more. We find no merit in the argument. At the time the interest rate was increased to more than 10%, the balance on the account, as a result of a series of sales, was $10,771.61. The act specifically covers loans which are “part of a series of advances if the aggregate of all sums advanced. . .is. . .$1,000.00 or more. . .” (Emphasis added.) 12 U.S.C. § 86a, note, subsection (b)(2)(B).

Affirmed.

George Rose Smith, J., not participating.


author:
David Newbern, Justice.
      David Newbern, Justice.

text:
    Jerry Don GLISSON and Billy Joe GLISSON v. STATE of Arkansas
    CR 84-225
    692 S.W.2d 227
    Supreme Court of Arkansas
    Opinion delivered June 24, 1985
    [Supplemental Opinion on Denial of Rehearing September 9, 1985.]

      Edward T. Barry and Scott Davidson, for appellant.
    No brief for the State.

       Purtle, J., not participating.

   David Newbern, Justice.

The appellants, Jerry Don and Billy Joe Glisson, who are brothers, were each charged by information with kidnapping, aggravated robbery, battery in the first degree, and theft of property. They were tried together. The appellants were accused of abducting Robert Mooney in Mo-nette, Arkansas, and of beating Mr. Mooney, stealing his wallet and his car, driving him to Kennett, Missouri, and abandoning him there. At the trial, the appellants maintained that Mooney accompanied them of his own volition, and that Mooney’s severe injuries were the self-inflicted results of a series of falls.

The jury returned a verdict of guilty as to aggravated robbery against both appellants. They were each sentenced to ten years imprisonment.

We have the benefit of only the appellants’ brief because we granted the appellants’ motion to suppress the appellee’s brief. The appellants’ brief was tendered March 12, 1985. The appel-lee’s brief was due April 11, 1985, but the appellee was given an extension by the clerk until April 18,1985.0nApril 18,1985, the appellee sought another extension which was granted until April 25,1985. On April 29,1985, the appellee had tendered no brief. The appellants moved to suppress, and we granted the appellants’ motion to suppress on May 28, 1985. On June 3, 1985, the appellee tendered a brief with a motion that we reconsider our suppression order. The clerk correctly refused to file the appel-lee’s brief.

The appellants raise five points for reversal. First, they allege error when the trial court admitted into evidence certain in-custody statements made by Jerry Don after he had requested counsel. The second and third points deal with the appellants’ assertion that the trial court was without jurisdiction to hear the case. Fourth, they contend that by rendering a guilty verdict as to aggravated robbery, while acquitting on the theft charges, the jury reached impermissibly inconsistent verdicts. Fifth, the appellants challenge the sufficiency of the evidence. The arguments entail a review and interpretation of Ark. Stat. Ann. §§41-105 and 41-110 (Repl. 1977). Thus our jurisdiction arises under Arkansas Supreme Court and Court of Appeals Rule 29. 1. c.

We find no error with respect to Billy Joe Glisson’s conviction. We, however, must reverse the conviction of Jerry Don Glisson because of the impropriety of continuing police interrogation after he had asked for and not received the assistance of counsel.

1. Admissibility of In-custody Statements

The testimony of police officers reveals the following: After the appellants were discovered on a convenience store parking lot in.Kennett, Missouri, with Mr. Mooney’s then inoperable automobile and with blood on themselves and on the car, the police took them to the station for questioning about some mailboxes which had been run over in a nearby section of town. The appellants were advised of their constitutional rights and they were questioned separately regarding the blood and mailboxes. At some point, Jerry Don told Officer Jefferson he would not talk further until he had seen an attorney. The questioning of him stopped at that point.

Shortly thereafter Mooney was discovered near a house in Kennett bleeding badly and complaining of having been beaten by some men who took his car. The officers then resumed questioning of Jerry Don without additional warnings. Both Jerry Don and Billy Joe refused to sign waiver of rights forms.

The next afternoon, another officer questioned Jerry Don regarding Mr. Mooney. This questioning, with Officer Jefferson present for at least a part of it, was initiated by the police, but was prefaced by another constitutional rights warning.

The trial court, apparently relying on Davis v. State, 243 Ark. 157, 419 S.W.2d 125 (1967), excluded the statement made by Jerry Don at the second questioning, but allowed the statement made the next day on the basis of their having been made after the request for counsel but after a second constitutional warning.

In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court said if the accused requests counsel the questioning must cease until an attorney is present. In Edwards v. Arizona, 451 U.S. 477 (1981), a case similar to this one, the court made it clear that a mere repetition of the statement of rights, also required by the Miranda case, will not erase the prior, unfulfilled request for counsel. The court stated:

“ . . .we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold, that an accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him. . . .” [451 U.S. at 484-485]

We have adhered to that standard. Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985).

The latter statements made by Jerry Don while in custody should not have been admitted, thus his conviction must be reversed.

2. and 3. Jurisdiction of the Trial Court

The appellants allege that all the elements of the crime took place in Missouri and thus the Arkansas courts have no jurisdiction. Along with this argument, they claim the state is required by Ark. Stat. Ann. § 41-110(l)(b) (Repl. 1977) to prove the jurisdiction of the court. That is correct, but the second subsection of the statute provides:

The state is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue.

The court below found that no such affirmative showing had been made. The state is presumed to have jurisdiction. Holt v. State, 281 Ark. 210, 662 S.W.2d 822 (1984). Further, as was stated in Gardener v. State, 263 Ark. 739, 569 S.W.2d 74 (1978):

It is not essential to a prosecution in this state that all the elements of the crime charged take place in Arkansas. It has been said that it is generally accepted that if the requisite elements of the crime are committed in different jurisdictions, any state in which an essential part of the crime is committed may take jurisdiction. [263 Ark. at 748, 569 S.W.2d at 78]

There was evidence before the trial court, particularly the testimony of the victim, that the beating took place, at least in part, in Monette, Arkansas, and that the car and money were taken in Arkansas. Therefore, even if there had been an affirmative showing of lack of jurisdiction, the state’s proof here was sufficient to overcome it.

4. Inconsistent Verdicts

“A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, ... he employs or threatens to employ physical force upon another.” Ark. Stat. Ann. § 41-2103 (Repl. 1977). The appellants contend that because they and others testified they were in possession of Mooney’s car, and some testimony showed they were in possession of Mooney’s money, the jury must have acquitted them because they lacked the intent to commit theft of these items. If that were the jury’s rationale, then, say the appellants, they could not possibly be guilty of robbery.

While, the argument is clever, it is not convincing, and no case is cited in which a court has adopted it. Instead, the appellants cite cases such as Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982), holding that one may not be convicted of both an offense and an “underlying offense,” e.g., capital felony murder and the aggravated robbery which constituted the felony during which the homicide occurred. Those cases simply do not apply here.

While the appellants’ stories conceded they were in possession of Mooney’s car, they did not concede having taken his money. Speculation might be that the jury found they had no intent to steal the car but intended to take the money and that the evidence of the money being in their possession was too weak to sustain a conviction of theft. Thus we are not persuaded by the argument that the jury necessarily found no intent to commit theft.

695 S.W.2d 121

5. Sufficiency of the Evidence

Finally, the appellants claim there was insufficient evidence to sustain their conviction. We will affirm the verdicts if there is any substantial evidence to support them. Breault v. State, 280 Ark. 372, 659 S.W.2d 176 (1983). There was ample evidence before the jury to enable them to reach their decision “without having to resort to speculation or conjecture.” See Heard v. State, 284 Ark. 457, 683 S.W.2d 232 (1985).

The factual circumstances surrounding the arrest of the appellants, the testimony of the victim, and the testimony of other witnesses, including medical testimony as to the nature of the injuries of the victim, were sufficient to support the verdicts.

Because of the violation of Jerry Don Glisson’s right to counsel during interrogation, we reverse his conviction. We affirm the conviction of Billy Joe Glisson.

George Rose Smith, Justice, not participating.

Supplemental Opinion on Denial of Rehearing September 9, 1985

David Newbern, Justice.

In their petition for rehearing, the appellants have correctly pointed out that we did not discuss their argument that their statements to the authorities should have been suppressed because the appellants were intoxicated when the statements were given.

The appellants contend they were convicted, at least in part, because of statements they made when questioned about their possession of Robert Mooney’s car and the manner in which blood came to be upon themselves and in the car. Jerry, for example, said he had gotten the blood on him while “cutting hogs” earlier in the day. Billy said he had been in a fight with a hitchhiker on a gravel road and had borrowed the car from “a friend.”

Their contention is that they made these statements while they were intoxicated, and thus the statements should not have been admitted into evidence. They contend the statements were prejudicial because they were absurd and should have been suppressed because they were “the ravings of a pair of mouths who were too drunk to know, or care, what they said.”

When an accused has made a confession we conduct an independent review of the circumstances in which it was made. Davis v. North Carolina, 384 U.S. 737 (1966); Harris v. State, 244 Ark. 314, 425 S.W.2d 293 (1968). The same treatment has been applied where an accused made a statement we characterized as an “admission.” Spillers v. State, 272 Ark. 212, 613 S.W.2d 387 (1981). Here, however, we have neither confessions nor admissions. Rather, we are asked to say the court erred in refusing to suppress statements which were apparently intended to be self-serving when they were made. Clearly we need not independently inquire into all the circumstances as we would if it were contended that law enforcement officials had somehow overcome the will of the appellants during questioning. See Cage v. State, 285 Ark. 343, 686 S.W.2d 439 (1985); Dewein v. State, 114 Ark. 472, 170 S.W. 582 (1914).

The trial court admitted the statements after conflicting testimony as to the condition of the appellants. In such a case, the issue before the trial judge should be whether the statements are relevant and thep whether they should be excluded because they are unfairly prejudicial. Ark. Stat. Ann. § 28-1001 (1979), Uniform Rules of Evidence 403. In considering whether the prejudice to the accused is unfair, the court may consider the accused’s contention that the statement was a product of his drunkenness and how the case will be affected if the accused is, in effect, required to prove he was drunk when the statement was made.

On appeal, the question will be whether the trial court abused its discretion in admitting the evidence. Lee v. State, 266 Ark. 870, 587 S.W.2d 78 (1979). In this case, we find no such abuse.

Rehearing denied.

John Purtle, J., not participating.


author: David Newbern, Justice.

text:
    Don Reginold REYNOLDS v. Jimmy O. SPOTTS and Linda D. SPOTTS
    85-122
    692 S.W.2d 748
    Supreme Court of Arkansas
    Opinion delivered June 24, 1985

      Green Law Office, by: William A. Lafferty, for appellant.

      Jake Brick, P.A., for appellee.
   David Newbern, Justice.

The Court of Appeals has certified this case to us pursuant to Arkansas Supreme Court and Court of Appeals Rule 29. 1. c. and 29. 4. a. because it involves interpretation of court rules and statutes.

The trial court ordered, adoption of two children by their stepfather. The natural father of the children contested the adoption, but it was decided his consent was not necessary because he had failed significantly, without justifiable cause, to support the children for a period of one year. See Ark. Stat. Ann. § 56-207(a)(2) (Supp. 1983).

The natural father is the appellant here. His bases for appeal are that his motion for new trial should have been granted because the preponderance of the evidence did not support the decision and the new trial should have been granted because of newly discovered evidence. Ark. R. Civ. P. 59(a)(6) and (7). We affirm because the appellant’s notice of appeal was not timely, but we will discuss other points in hopes of providing some guidance for future cases.

The following is a chronology of some significant events:

1. August 31, 1983 Interlocutory decree of adoption entered
2. March 7, 1984 Final decree of adoption entered
3. March 26, 1984 Motion for new trial filed
4. August 1, 1984 Motion for new trial denied
5. August 30, 1984 Notice of appeal from denial of new trial filed

Most so-called “interlocutory” adoption decrees contemplate no further order being entered. They become “final” automatically on a set date more than six months but less than one year after the decree. Ark. Stat. Ann. § 56-214(c) (2) (Supp. 1983). In view of the lack of entry of a second or “final” order in most adoption cases and the resultant confusion as to appealability, we stated in a per curiam opinion that interlocutory adoption orders are appealable when no subsequent hearing is required by the terms of the decree. In the Matter of Appeals from Adoption Orders, 277 Ark. 520, 642 S.W.2d 573 (1982). The per curiam order was not meant to apply in cases like this one. Here there was to be no automatic finality. The decree was to become final in six months but only upon motion of the petitioners. There would be no point in requiring a motion or a “final” order if at least the possibility of a further hearing were not contemplated. In the final order the judge said “this cause comes on to be heard upon the Petition for Final Decree of Adoption.” (Emphasis added.) The interlocutory decree required a further hearing in the sense meant by our per curiam order. Thus, the first appealable order in this case was the “final” order of March 7, 1984. No appeal was taken from that order.

Nineteen days after entry of the final order, the appellant moved for a new trial. Ark. R. Civ. P. 59(b) requires that a motion for new trial be made not later than ten days after the entry of judgment. Thus the new trial motion was, on its face, untimely. The appellant contends, however, he did not receive notice of the motion or petition for the final adoption order and thus should not be held to the ten day requirement. The record does not show that the motion for the final adoption order was served on the appellant as is required by Ark. R. Civ. P. 5(a). However, even if we calculate the time for filing the notice of appeal from the time the new trial motion was made, the notice of appeal was untimely.

Ark. R. App. P. 4(c), in part, provides:

Unless the motion shall have been presented to the trial court and taken under advisement within the thirty (30) days, or the court shall have set a definite date for the hearing, it shall be deemed that the motion has been finally disposed of at the expiration of thirty (30) days from its filing, and the time for filing notice of appeal shall ~commence to run from the expiration of the thirty (30) days.

Thus, assuming the new trial motion was timely, it was deemed denied thirty days from March 26, 1984, which fell on April 25, 1984 and the time for filing a notice of appeal ran out May 28, 1984.

In his reply brief the appellant argues he attempted to get a definite hearing date for his new trial.motion and did so when he was "advised by the court to appear `on any Wednesday.'" While we do not question counsel's assertion, we must point out that nothing in the abstract and nothing we have found in the record supports it. Even if it were supported in the record, however, we could hardly construe a setting for "any Wednesday" as being the "definite date" required in the rule.

The failure to file a timely notice of appeal deprives this court of jurisdiction. La Rue v. La Rue, 268 Ark. 86, 593 S.W.2d 185 (1980); Yellow Cab Co. v. Sanders, 250 Ark. 418, 465 S. W. 2d 324 (1971). Therefore, subsequent denial of the new trial motion by the trial court and the attempted appeal of that order were irrelevant.

The appellees ask for fees and costs resulting from their having to file a supplemental abstract. Much of the abstract they supplied was repetitious of that of the appellant, and the additions were not necessary to our understanding of the case. The request for fees and costs is denied. Arkota Industries v. Naekel, 274 Ark. 173, 623 S.W.2d 194 (1981).

Affirmed.

George Rose Smith, Justice, not participating.


author: Per Curiam.

text:
    Will Henry SCOTT v. STATE of Arkansas
    85-103
    691 S.W.2d 859
    Supreme Court of Arkansas
    Opinion delivered June 24, 1985

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for respondent.
   Per Curiam.

Petitioner Will Henry Scott was found guilty by a jury of two counts of first degree battery and sentenced to two consecutive terms of ten years imprisonment in the Arkansas Department of Correction. The Court of Appeals affirmed. Scott v. State, CACR 84-101 (November 14, 1984). Petitioner seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr .P. Rule 37, alleging that his attorney failed to communicate an offer from the state to plea bargain and that counsel was ineffective in that he failed to move to dismiss the charges for failure to afford him a speedy trial.

Petitioner was arrested on February 28,1983 and returned to prison as a parole violator. In accordance with A.R.Cr.P. Rule 28.1 (b), he was entitled to be tried on the two battery charges within twelve months of arrest. Delay resulting from an examination on the competence of the defendant is excluded in computing the twelve-month period. A.R.Cr.P. Rule 28.3 (a). Petitioner here requested and was afforded a psychiatric examination. He was examined at the Southeast Arkansas Mental Health Center for at least two days in March, 1983 and subsequently committed to the Arkansas State Hospital on July 6, 1983 for a thirty-day period. On August 23, 1983 the final report from the State Hospital on petitioner’s mental competence was filed with the circuit clerk. Petitioner was tried on March 22,1984, which was within twelve'months as required by Rule 28.1 (b) if the time for conducting the mental examination is excluded.

Petitioner alleges that counsel did not tell him that the prosecutor had offered to recommend a ten-year sentence if petitioner would plead guilty until after counsel had rejected the offer. He states , that he would have accepted a ten-year plea bargain. He does not say whether the offer in question was ten years on each count or a total of ten years for both counts.

Petitioner provides no support for the assertion that there was a plea offer except for his own affidavit in which he states that counsel told him the offer had been made and rejected. Petitioner cites as authority our decision in Rasumssen v. State, 280 Ark. 472, 658 S.W.2d 867 (1983), in which we said that it is ineffective assistance of counsel to fail to communicate a plea offer to an accused, but in Rasmussen a deputy prosecutor submitted an affidavit averring that the offer had actually been made. In Elmore v. State, 285 Ark. 42, 684 S.W.2d 263 (1985), we again granted a hearing on an allegation of an uncommunicated plea bargain, but Elmore also involved a prosecutor’s affidavit attesting that the offer was in fact made. We do not find the bare assertion of an offer by the petitioner alone to be sufficient reason to grant a hearing. If it were otherwise, even where there had been no plea negotiations, a petitioner could open a judgment of conviction to collateral attack based on his mere contention that there was a plea offer. A collateral attack on a valid judgment must be founded on more than an unsubstantiated allegation if the presumption that a criminal judgment is final is to have any meaning. See Strickland v. Washington,_ U.S. _, 104 S. Ct. 2052 (1984).

Petition denied.

George Rose Smith, J., not participating.


text:
    Gary STRATTON, Jr. and Bill STRATTON v. PRUDENTIAL INSURANCE CO. OF AMERICA
    85-74
    692 S.W.2d 230
    Supreme Court of Arkansas
    Opinion delivered June 24, 1985

      Garland Q. Ridenour, Ltd., for petitioner.
    No response by respondent.
   Per Curiam.

Petitioners ask that we review the decision rendered by the Arkansas Court of Appeals in CÁ84-230 because it involves a legal issue of major importance. Arkansas Supreme Court and Court of Appeals Rule 29. 6. provides, in part, the following:

Except in cases appealed to the Court of Appeals from the Workers Compensation Commission or the Employment Security Board of Review, no petition for review on the ground that the case involves an issue of significant public interest or a legal principle of major importance, as specified in subparagraph 4(b) of this Rule, will be considered unless the party petitioning for review filed in the Court of Appeals, before the submission of the case to that court, a motion asking that the case be certified to the Supreme Court on that ground, with a certificate of counsel that the motion is filed in the good faith belief that the case should be so certified.

The record contains no evidence that such a motion was made.

Review denied.

George Rose Smith, Justice, not participating.