author: Darrell Hickman, Justice. Steele Hays, Justice,

text:
    Edward DUST et al v. Paul RIVIERE, Secretary of State et al
    82-173 & 82-190
    638 S.W.2d 663
    Supreme Court of Arkansas
    Opinion delivered September 2, 1982
    [Rehearing denied September 27, 1982.]

      Coleman, Gantt, Ramsey it Cox, by: E. Harley Cox; Davidson, Horne, Hollingsworth, Arnold & Grobmyer, by: Walter Davidson; Thomas, Paddock ir Llewellyn, by: Bill Thompson; Oscar Fendler; and Friday, Eldredge & Clark, by: Herschel H. Friday, Frederick S. Ursery and Robert S. Shafer, for petitioners.

      James F. Lane, for Wells, petitioner-intervenor, appellant.

      Wright, Lindsey <!x Jennings, by: Alston Jennings, J. Mark Davis and Edward L. Lowther, for Reynolds Metal Company, amicus curiae in support of petitioners.

      Rose Law Firm, P.A., for Arkansas Poultry Federation, amicus curiae in support of petitioners.

      Steve Clark, Atty. Gen., by: David L. Williams, Deputy Atty. Gen. and Mary B. Stallcup, Asst. Atty. Gen., for respondent.

      Youngdahl ir Larrison, by: James E. Youngdahl; and Walter W. Nixon, HI, for Ratepayers Fight Back, respondent-intervenor.
   Darrell Hickman, Justice.

This is an original action by the petitioners seeking an injunction to prohibit the Secretary of State from certifying a proposed constitutional amendment as valid. John F. Wells, individually, and Independent Voters of Arkansas, Inc., were allowed to intervene as petitioners and they raise issues other than the validity of the ballot title. Ratepayers Fight Back, representative of several Arkansas organizations, has been allowed to intervene as respondent. Another lawsuit on this matter, filed by Wells in the Pulaski Chancery Court, and before us on appeal, has been consolidated with this case.

The proposed constitutional amendment by its popular name is “The Arkansas Utility Regulation Amendment” and has been filed with the Secretary of State as an initiative petition to amend our present constitution in compliance with Amendment 7 to the Arkansas Constitution. There are other issues raised besides the sufficiency and validity of the ballot title, but it is unnecessary to dwell on those because we find the ballot title fails to meet the standards required and those issues, therefore, are moot.

The Secretary of State will be enjoined from placing this proposal on the ballot in the 1982 November General Election.

The proposed amendment itself is a comprehensive, technical, lengthy, and detailed document that runs to some 8,500 words. It first provides for the election of Public Service Commissioners who are now selected by appointment. After that simple initial proposal, however, the amendment becomes comprehensive, detailed legislation, dealing with many specific instances of the regulation of certain public utilities. It is a document of flowing general statements of power and policy followed by lengthy detailed expositions that are usually found in the small print of statute books or legal documents. It speaks to various technical practices in the regulation of utilities such as fuel adjustment charges and time-of-day tariffs. It is peppered with references to existing state and federal laws.

The amendment proposes to create a new government entity, the Ratepayers Utility Board, “to promote the health, welfare, and prosperity of all citizens of this state by ensuring effective and democratic representation of individual residential utility consumers, individual farmers, and small business firms before regulatory agencies, the legislature, and other public bodies.” This proposed Board will be managed and directed by a Board of Directors consisting of seven people appointed by the executive branch of government. But those appointments are quite limited. The Governor appoints one person from nominees made by “at least three environmental organizations having a statewide membership and from coalitions of such groups . . .” The Lieutenant Governor appoints an individual that is a nominee recommended by organized labor in Arkansas. The Attorney General appoints an individual “from at least three nonprofit consumer organizations having statewide membership...” The Auditor’s one appointee is nominated "from at least three retirement/elderly organizations having statewide membership . . .” The Treasurer appoints an individual nominated “from at least three organizations of low-income persons. . .’’The Secretary of State’s appointee must represent businesses in Arkansas “which sell, distribute or manufacture materials and/or equipment used for, or provide services related to energy conservation purposes or the production of energy through the use of renewal energy resources.” The Land Commissioner will appoint one person representing “small retail businesses and small family farms.” This information is not in the ballot title.

The Board would be funded through revenues raised by imposing a .4 mill tax or fee on the gross annual revenues of certain utilities — undoubtedly at the expense of all consumers, but that is not explicit. The ballot title does disclose a .4 mill assessment will be made but it does not disclose that the proposed Board will be totally independent of any other branch of government; that the General Assembly shall have no authority at all to legislate regarding the powers, duties or functions of this Board or the expenditure of funds received by the Board. This change of constitutional law is not disclosed. It is not just another government agency or board but it will be a department of government subject only to the control of the board members that are appointed.

We have no quarrel with the general ideas or principles proposed in the amendment; their novelty or uniqueness is irrelevant. The voters of this state essentially have, within constitutional limits, a right to change any law or any provision of our Constitution they deem appropriate through Amendment 7 to the Constitution.

If the voter knows the extent and import of such a proposal, it is the voter’s decision, not ours, as to the wisdom of the proposal. But at the same time the voters have placed on this court the duty and responsibility to see that when they vote that change, or decline to vote that change, especially one to alter their constitution, they are allowed to make an intelligent choice, fully aware of the consequences of their vote. And it is our duty to see that the individual voter has available a sufficient ballot title when deciding to accept or reject the amendment. It must permit an intelligent and knowledgeable decision to be made. The legal question is whether in the voting booth the voter can be able to exercise the decision to vote for or against the proposal based on the ballot title. We have recognized that “The great body of electors, when called to vote for or against an act at the general election, will derive their information about it from the ballot title. This is the purpose of the title.” Hoban v. Hall, 229 Ark. 416, 316 S.W.2d 185 (1958).

In Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952), we stated:

It is the function of the ballot title to provide information containing the choice that he is called upon to make. Hence the adequacy of the title is directly related to the degree to which it enlightens the voter with reference to the changes that he is given the opportunity of approving.

The principles we use in deciding whether the ballot title is sufficient and valid are clear. In Bradley v. Hall, supra, we said:

Our decisions upon the sufficiency of ballot titles have been so numerous that the governing principles are perfectly familiar. On the one hand, it is not required that the ballot title contain a synopsis of the amendment or statute. Sturdy v. Hall, 204 Ark. 785, 164 S.W.2d 884. It is sufficient for the title to be complete enough to convey an intelligible idea of the scope and import of the proposed law. Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356, 44 S.W.2d 331. We have recognized the impossibility of preparing a ballot title that would suit everyone. Hogan v. Hall, 198 Ark. 681, 130 S.W.2d 716. Yet, on the other hand, the ballot title must be free from ‘any misleading tendency, whether of amplification, of omission, or fallacy,’ and it must not be tinged with partisan coloring.

Furthermore, we have said that we give a liberal construction to Amendment 7 in determining the sufficiency of the ballot title. Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980).

But that does not mean that liberality knows no bounds or common sense has no place in the matter. While neither the length nor complexity of the ballot title should be a controlling factor, it is a consideration. The great majority of Arkansas voters are limited, as a practical matter, in the amount of time that can be spent considering such a proposal. Furthermore, common sense requires that we ask whether the average voter can make an intelligent considerate decision based on the ballot title. In Newton v. Hall, 196 Ark. 930, 120 S.W.2d 364 (1938), we noted that the length of the title could be a serious objection because the law recognizes that an elector’s time is limited in occupying a voting booth.

We have concluded that the proposed ballot title is so complex, detailed, lengthy, misleading and confusing that the Arkansas voter cannot intelligently make a choice based on the title. The best evidence of that is the ballot title itself. We attach the ballot title as an addendum to this opinion and invite any disinterested person to read it in the time one would ordinarily use in a voting booth, and understand the changes that the amendment proposes. We are convinced only a lawyer or an expert in utility law and regulations might do that. The rest of us would have to guess as to the effect a vote will have, or have faith in the proponents of the amendment. Placing the voter in such a posture is impermissible.

In our view the critical defect of the ballot title is the misleading aspects. The ballot title is certainly misleading regarding the power of the Ratepayers Utility Board. The ballot title says its purpose is to “represent and advocate the interests of residential and small business utility customers” and similar language is contained throughout the act. But the ballot title does not tell the voter the interests of the seven people who will direct that Board and that is an important fact since their interests may not necessarily coincide with those of the majority of the residential and small business customer. The majority of the board members will be chosen from nominees of organizations whose interests may be in conflict with those of the majority of the residential and small business customer. Nominees of organized labor, environmental organizations, retirement/elderly organizations and organizations of people with low incomes will constitute a majority of the Board. The voter, who is a residential or small business consumer, has a right to know that these interests can direct and control the Board which is supposed to represent and advocate the interests of residential and small business consumers. Actually, the small business consumer may not even be represented because the Land Commissioner makes only one appointment to represent “small retail business and small family farms.”

The fact that the Ratepayers Utility Board will be a new government entity or department subject to no control or check at all by any of the existing branches of government is not disclosed or referred to. The General Assembly is the first arm of government representing the people, and the voter has a right to know when a new entity or department of government is created that will not be subject to existing constitutional controls granted to that body. Indeed, it appears that the Board itself, elected by no one and responsible to no one, will decide how the Board’s power will be used and whose interests will be served. In these regards the ballot title does have a tendency to be misleading and is not free from partisan coloring. See Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1956).

No doubt the sponsors of the proposal have made a good faith effort to present a brief, fair and objective ballot title available on this complex, far-reaching amendment. But in our judgment the ballot title does not meet the standards as we have explained.

Injunction granted.

Purtle and Hays, JJ., dissent.

ADDENDUM

Popular Name.

“The Arkansas Utility Regulation Amendment”

Ballot Title.

An amendment to the Constitution of Arkansas to establish an elected Public Utilities Commission, create a Ratepayers Utility Board, restrict utility collection of rates under bond, regulate long-term utility planning and investment, abolish the use by investor-owned electric utilities of automatic fuel adjustment charges and prohibit all electric utilities from implementing mandatory time-of-day rates by:

Providing for statewide election of three public utilities commissioners beginning at the general election of 1984; establishing commissioner salaries, terms and conditions of service; providing that the Governor, on or after January 14, 1983, appoint three commissioners to serve until the first elected commissioners take office; exempting the Commission and its staff from executive branch hiring freezes and from state laws governing employee classification and compensation systems and requiring the Commission to establish its own such system; restricting employment and financial dealings between utilities and commissioners or Commission employees; and requiring monthly disclosure of campaign contributions of $50.00 or more;

Creating a non-profit corporation to be known as the “Ratepayers Utility Board” (RUB) to represent and advocate the interests of residential and small business utility customers before the Commission and other governmental bodies; requiring constitutional officers of the Executive Department to appoint from designated constituencies directors of the RUB; providing that the RUB be funded through the direct assessment of a .4 mill ($.004) on the gross annual revenues of every utility regulated by the Commission; authorizing the RUB to communicate with utility customers through the monthly billing statements of utilities; establishing the powers and duties of the RUB; and establishing conflict of interest restrictions for RUB officials;

Prohibiting utilities from collecting rates under bond, except in specified emergenies or if the Commission has failed to rule on a rate application within 12 months; providing that in no case may the utility collect two sets of rates under bond simultaneously and that in any case the Commission shall determine the rates to be collected under bond; requiring that all rates found unlawful be refunded with interest; and allowing for direct appeal of Commission orders to the Arkansas Supreme Court, provided that the Court may not suspend rates allowed or refunds ordered by the Commission.

Requiring electric, gas, and telephone utilities to file annually with the Commission ten-year plans for meeting demands for utility services; requiring regular Commission hearings to determine actions utilities shall take to implement the lowest-cost plans; empowering the Commission to order the utility to delay, cease, or redirect investments not in the best interests of the utility and its customers and to reduce the rate of return allowed the utility if the Commission finds the utility made imprudent investments; limiting the inclusion of construction work in progress expenditures in an investor-owned utility’s rate base; requiring the Commission to establish a division of forecasting and planning; requiring Commission approval before utilities may pass through to ratepayers any costs of power plants situated outside Arkansas with which an Arkansas utility is associated; requiring Commission approval before an electric utility may sell, transfer or dedicate any interest in major generating facilities; and requiring the Commission to stay its final decision on any application to build a major generating facility, if such application was pending on or filed within two years after the effective date of this Amendment, until the Commission has issued an order on the utility’s ten-year plan;

Prohibiting the use by investor-owned electric utilities of an automatic adjustment to rates for fuel and purchased power expenses; providing that the Commission may not adjust such expenses more frequently than one every six months, except on an emergency basis; prohibiting the use of estimted fuel and purchased power expenses in setting rates; prohibiting the recovery from ratepayers of fuel and/or purchased power expenses which result from the failure of major generating facilities to achieve reasonable operating efficiency standards which shall be set by the Commission; and prohibiting the use of mandatory time-of-day tariffs by electric utilities;

Providing that the provisions of this Amendment are severable, that this Amendment repeals all other laws in conflict with it, that the General Assembly shall make appropriations required for the effectuation of this Amendment, that the General Assembly by a two-thirds vote of both houses may amend specified provisions of this Amendment; and for other purposes.

Steele Hays, Justice,

dissenting. I believe the ballot title is sufficient and I would deny the injunction. The proponents have obtained the requisite number of signatures (assuming their validity) within the time limits set by law. The popular name and ballot title are notably free of slanted phrasing or partisan coloring. True, the proposed amendment is long and complex and every detail is not covered, but there is no indication the ballot title does not fairly and adequately inform the voter of the scope and import of the proposal. It should be approved.

The two deficiencies of the ballot title cited by the majority are, one, its length and, two, its failure to fully inform the voters concerning the composition of the Ratepayers Utility Board (RUB). The proposal itself is long, perhaps too long, but nowhere do I find precedent for the view that length alone can be so crucial as to put the proposal in jeopardy of the courts, as opposed to the voters. I disagree that Newton v. Hall, 196 Ark. 930, 120 S.W.2d 364 (1968) can be read as holding the length of the ballot title poses “a serious objection.” The challenge there was to the brevity of the ballot title, not its length, and we upheld it in that case even though it was longer than this one (735 words against 707). Justice Frank G. Smith, author of Newton v. Hall, observed that the length of the ballot title “like this opinion,” rather than its brevity, was the more serious question, noting that a voter could not read many such ballot titles in the 5 minutes allowed him in the voting booth. But that casual language, rendered in a lighter vein, should hardly be treated as a precedent for the proposition that length itself can render a ballot title defective. Justice Smith’s words were not even dictum, but merely a polemic response to an appellant who was arguing that the ballot title was incomplete.

The troubling thing about the majority opinion is an inability to settle on whether the ballot title is too long or too short. In one breath, it suggests the voters cannot intelligently consider a ballot title of such length in the 3 minutes allowed by Ark. Stat. Ann. § 3-1221 (Repl. 1976) for voting machine occupancy, at the same time finding it fatally defective because it omits essential details about the Ratepayers Utility Board. But we have told the public again and again that the ballot title need not be exhaustive or elaborate and, indeed, should not be. In Coleman v. Sherrill, 189 Ark. 843, 75 S.W.2d 248 and Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936), we said:

“It may be observed that if the ballot title were intended to be so elaborate as to set forth all the details of the act, the publication or advertisement might, for that very obvious reason, be omitted. Perhaps, no set rule or formula can be announced as to what a ballot title shall contain, but it may be safely stated that, if it shall identify the proposed act and shall fairly allege the general purposes thereof, it is sufficient.” (My italics.)

In Reynolds v. Hall, 222 Ark. 478, 261 S.W.2d 405, we upheld the ballot title saying a ballot title need not contain a synopsis of the act nor even explain to the voter that a tax is imposed by the proposal. In Newton v. Hall, supra, language of Chief Justice McSherry was cited with approval:

“It never has been understood that the title of a statute should disclose the details embodied in the Act. It is intended simply to indicate the subject to which the statute relates. . . . When the general subject is indicated no matters of detail need be mentioned in the title.” (See Baltimore v. Stewart, 92 Md. 535, 48 Atl. 165).

By this opinion we are abandoning the mandate of our cases that Amendment 7 be given a liberal construction in determining the sufficiency of the ballot title in favor of a narrow interpretation. Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980). The likely consequence is that sponsors of future proposals will be discouraged in the attempt and, hence, this useful part of our political system weakened. How will proponents of future proposals know which details we will select as essential to the ballot title when we have said repeatedly the only requirements are that it shall be complete enough to convey an intelligible idea of the scope and import of the proposal and free of partisanship and any misleading tendency, whether of amplification, or omission, or fallacy? Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952). Our cases can be interpreted as holding that mere omissions from the ballot title are not fatal, so long as they are not misleading or deceptive. The majority concedes the good faith of the sponsors of this proposal yet denies them access to the ballot notwithstanding the prior approval of the ballot title by the Attorney General, who made changes of his own. We have held his approval to be significant and worthy of added consideration. When that occurs we will deny the proposal a place on the ballot only where the deficiencies are obvious. Mason v. Jernigan, 260 Ark. 385, 540 S.W.2d 851 (1976) and Fletcher v. Bryant, 243 Ark. 872, 422 S.W.2d 698 (1968).

I cannot find this ballot title to be clearly deficient simply because of its length or because of the absence of every detail respecting the selection of the Ratepayers Utility Board. Our system contemplates that the elective process itself will provide a vital part of the political dialogue by which the voter becomes informed on ballot issues and by which he comes to a decision as to how he will vote. The right to change laws under Amendment 7 procedures belongs to him and we ought to be reluctant indeed to deprive him of it. When we deny, on slender grounds, the electorate the right to pass on Amendment 7 proposals, however dubious we might be of the proposal, we do a disservice to a fundamental concept of self-government.

Purtle, J., joins in this dissent.

      The limit of time a person may use to vote in a voting machine is three minutes, Ark. Stat. Ann. § 3-1221 (Repl. 1976); otherwise it is five minutes. Ark. Stat. Ann. § 3-1222 (Repl. 1976).


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Werner KNOOP et al v. THE CITY OF LITTLE ROCK et al
    82-196
    638 S.W.2d 670
    Supreme Court of Arkansas
    Opinion delivered September 10, 1982

      Hardin, Grace, Downing, Mapper, Allen & East, for appellants.

      R. Jack Magruder, III, City Atty., and David Henry, Asst. City Atty., for appellees.

      Henry & Duckett, tor interveners Rogers Faust, Josh McHughes and George Wimberly.
   Frank Holt, Justice.

The issue presented here is the validity of Act 539 of 1981. Ark. Stat. Ann. § 19-704.1 et seq. (Supp. 1981). This act essentially has two operative provisions. It provides that in the 1982 general election cities having a population of 100,000 or more according to the most recent federal census and a city manager form of government must directly elect the mayor by a majority vote. Heretofore, in city manager governed cities (except Texarkana), the city directors were empowered to select the mayor from among themselves. The act further provides that each director in such cities would have to be elected by a majority vote, rather than a plurality, in the 1982 general election. To accomplish this the act provides for a runoff election, if necessary, to be held two weeks after the general election.

The appellants, residents and taxpayers of the city, filed suit alleging that Act 539 is unconstitutional as a violation of Amendment 14, Arkansas Constitution (1874), which prohibits local and special legislation. They asked that the act be invalidated and the city of Little Rock be enjoined from enforcing it. The chancellor ruled that the obvious purpose of the act, which requires the election of the board of directors and mayor by a popular majority vote, was to make the legislative body and the mayor more responsive to the voters inasmuch as the problems in larger cities are different and more complex than in smaller cities. Therefore, the chancellor held it was a reasonable and valid legislative action. The appellants contend that the chancellor erred in so holding.

We have had occasion to construe Amendment 14 numerous times, and the principles that govern whether an act is general, special or local are well settled. In Laman, Mayor v. Harrill, 233 Ark. 967, 349 S.W.2d 814 (1961), we said:

A general law is one that operates upon all counties, cities and towns alike. A law is special in a constitutional sense when by force of an inherent limitation it arbitrarily separates some person, place or thing from those upon which, but for such separation it would operate and a local law is one that applies to any subdivision or division of the state less than the whole.

There we also reiterated that in determining whether an act is general, local or special, we “look to its substance and practical operation” rather than to the form or phrasing of the act; otherwise, the prohibition against special and local legislation placed in the constitution by the people of Arkansas could easily be circumvented. In Street Improvement Districts Nos. 481 and 485 v. Hadfield, 184 Ark. 598, 43 S.W.2d 62 (1931), we said:

The general rule is that classification is properly based on population when reasonably adapted to the subject of the statute. Otherwise the classification by population is special legislation ....
The authorities generally hold that classification of cities and towns by population can not be artibrarily adopted as a ground for granting some of them powers denied others if, although there be a difference in population, there is no difference in situation or circumstances of the municipalities placed in the different classes, and the difference in population has no reasonable relation to the purposes and object to be attained by the statute.

See also Lovell v. Democratic Central Committee, 230 Ark. 811, 327 S.W.2d 387 (1959).

Act 539 grants to cities having over 100,000 people and a city manager form of government two powers denied to cities with a city manager form of government and population less than 100,000, namely, the power to directly elect their mayor in 1982 and the power to hold runoff elections two weeks after the general election in 1982 to insure that all directors, as well as the mayor, are elected by a majority vote. In other words, cities with a population below 100,000 may not directly elect their mayors or hold runoff elections to insure that all directors and mayors are elected by majority votes. Ark. Stat. Ann. §§ 19-704 and 19-708 (Repl. 1980). The act clearly grants to one city, Little Rock, powers in the election of its governing officials not granted to other cities with the same form of government. Further, we are unable to discern from the act and the evidence presented that there is any reasonable connection between a city having a population exceeding 100,000 and the desirability of the act’s electoral provisions.

The appellee city and the appellee intervenors, residents and taxpayers of the city, argue, however, that the mayor in Little Rock has more control over the agenda because of the more numerous and complex issues faced by that city than a smaller size city. Zoning problems, airport problems and such are said to be problems of a sort that do not exist in a smaller city which results in the mayor of Little Rock having substantially more power than mayors in smaller cities. Furthermore, it is argued that the mayor in a large city is more distant or removed from the citizenry than the mayor in a small city.

The mayor in a city, regardless of its size, having a city manager form of government merely presides at board meetings, is recognized as head of the city government for ceremonial purposes, and signs all written agreements on behalf of the city. § 19-708 (b). These powers are not altered in any way by Act 539. They are the same whether the mayor is selected by the directors or by direct election with a majority vote. In the absence of some reasonable statutory difference in the powers or functions of the mayors of cities of different sizes, we cannot, although the act is accorded presumptive validity, find any reasonable basis for granting to one city but not others the power of directly electing its mayor and holding runoff elections for the positions of mayor and city directors two weeks alter the general election. Consequently, we must hold that Act 539 is special legislation which contravenes Amendment 14. We deem it unnecessary to discuss appellants’ additional argument that the act is local legislation.

We do not hold, however, that the general assembly may never draw population classifications that treat cities differently when the purpose of the act is based on a reasonable and sound basis due to substantial differences and needs. Knowlton v. Walton, 189 Ark. 901, 75 S.W.2d 811 (1934); and Lovell v. Democratic Central Committee, supra.

Reversed and remanded with directions that the injunction be issued.

Adkisson, C.J., dissents.

      It was stipulated that the following cities have a city manager form of government: Arkadelphia, 10,005; Brinkley, 4,909; Camden, 15,356; DeQueen, 4,594; Fayetteville, 36,608; Hope, 10,290; Little Rock, 158,461; Texarkana, 21,459.


author: George Rose Smith, Justice.

text:
    Ricky RECTOR v. STATE of Arkansas
    CR 82-36
    638 S.W.2d 672
    Supreme Court of Arkansas
    Opinion delivered September 13, 1982

      Ron Heller of Kaplan, Hollingsworth ér Brewer, P.A., for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Ricky Rector argues two grounds for reversal in appealing from a verdict and judgment sentencing him to life imprisonment for the first-degree murder of Arthur Criswell. Neither contention is meritorious.

First, trial counsel filed a pre-trial motion asking the court to find Rector mentally incompetent to stand trial as a result of brain injury caused by Rector’s having shot himself some time after he killed Criswell. At the hearing on the motion the expert testimony was in conflict. The defense witnesses testified that Rector’s brain injury caused retrograde amnesia, so that he could not remember either having shot himself or having committed the crime now on trial and other felonies at about the same time. Those witnesses considered Rector to be unable to understand the issues to be tried and to assist his counsel in his own defense. For the State the expert witnesses testified essentially to the contrary, with Dr. Hamed expressing the opinion that Rector was lying about his loss of memory, that he was competent to stand trial, and that he could cooperate with his counsel when he decided to do so. With the evidence hopelessly in conflict upon an issue of fact, it cannot be said that the trial judge’s conclusion is clearly erroneous. The trial judge apparently accepted the claim of amnesia, but he correctly pointed out that amnesia is not an adequate ground for holding a defendant incompetent to stand trial. Deason v. State, 263 Ark. 56, 562 S.W.2d 79 (1978).

Second, it is argued that the trial judge should have excused the juror Larry James for cause. James at first said that from earlier news accounts he had probably formed an opinion that Rector, might be guilty, but his voir dire examination concluded in this way:

The Court: Mr. James, could you, if you were selected as a juror, and would you, if you were selected as a juror, set aside any opinion you might have at this time and listen to the testimony presented here and the evidence introduced into court and make your decision solely on what you have heard in the courtroom during the trial?
Juror James: I would try to.
The Court: He’s all right.
Q [by defense counsel]: You sure you could do that?
A (No verbal response)
Defense counsel: I ask he be struck again, your Honor.
The Court: He nodded in the affirmative. ... No, he’s all right.

Thus the trial court found that the juror, by nodding in the affirmative, asserted his ability to lay aside his impressions and render a verdict based upon the evidence in court. The juror was therefore qualified. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied 449 U.S. 1057 (1980). We note the remote possibility that the juror might have understood defense counsel’s final question to refer to the juror’s ability to try to lay aside his opinion rather than his ability to do so, but such an inquiry by defense counsel would have been so utterly pointless that we have no doubt the trial judge was right in denying the challenge for cause.

We find no error in the two points argued or in the other rulings that have been presented in the briefs.

Affirmed.


author: Darrell Hickman, Justice.

text:
    John O. LeGUIN, Sr. v. Kenneth & Cheryl CASWELL
    82-113
    638 S.W.2d 674
    Supreme Court of Arkansas
    Opinion delivered September 13, 1982

      Mark L. Ross of Ross ir Ross, P.A., for appellant.

      Virginia R. Williams, Rule XII Law Student, and James R. Cromwell, UALR Law School Legal Clinic, for appellee.
   Darrell Hickman, Justice.

The only issue in this case is whether the chancellor was wrong in deciding that he did not have jurisdiction in this interstate custody dispute. The chancellor found that the Uniform Child Custody Jurisdiction Act, Ark. Stat. Ann. § 34-2701, et seq. (Cum. Supp. 1981), did not require the Chancery Court of Pulaski County to exercise jurisdiction since the only basis would have been that the father of the children, John O. LeGuin, had become a resident of Arkansas. We affirm the chancellor.

There was no testimony taken and there are no relevant facts in dispute. The chancellor dismissed the complaint on the basis of the pleadings. John O. LeGuin brought this action in an attempt to have an Arkansas court determine that he was entitled to custody of his children. John O. LeGuin and Katherine Jean LeGuin were married in 1973 in Scranton, Pennsylvania. They had three children and John adopted a child that Katherine had before their marriage. In 1978, Katherine LeGuin took all the children, left Louisiana where they were living, and her husband. She filed an action in New York to have custody of the children placed with her cousin, Cheryl Caswell, a resident of Oklahoma. A family court in New York entered an order granting custody to the cousin but it was done without notice to John O. LeGuin. The mother died of leukemia in April of 1981, and Cheryl Caswell took the children to Oklahoma that month where they remained with her and her husband.

In August of 1981, John O. LeGuin filed a motion in Pulaski County Chancery Court requesting the court to take jurisdiction of the matter and award him custody. The court found that the Uniform Child Custody Jurisdiction Act was applicable and, according to it and the provisions which determine jurisdiction in various courts, Arkansas lacked jurisdiction in this matter. The chancellor noted that in his judgment Oklahoma would be the best forum to try this interstate custody dispute, and he observed that the New York decree was not necessarily entitled to full/faith and credit but did extend “color of title” to the Caswells.

The purpose of the Uniform Child Custody Jurisdiction Act is to promote cooperation between the courts of various states so the state that can best serve the interests of the child will decide the matter. It is designed to discourage continuing controversies and avoid competition and conflict between the courts of the various states. Ark. Stat. Ann. § 34-2701. The Act recites several circumstances that allow Arkansas to decide such child custody cases; for example, if Arkansas is the “home state” of the child within six months before the action was commenced, Arkansas would have jurisdiction. None of the circumstances as set forth in Ark. Stat. Ann. § 34-2703 exist in this case that require Arkansas to take jurisdiction. It is undisputed that the LeGuin children have never been to Arkansas.

The chancellor correctly found that since the only contact with Arkansas is that the father has moved here, Arkansas did not have jurisdiction in this matter. It is irrelevant to us whether Louisiana, New York, Pennsylvania or Oklahoma would be the best forum. The question is whether Arkansas had to take jurisdiction, and it did not.

Affirmed.

Purtle, J., not participating.

       34-2708. Jurisdiction, (a) A court of this State which is competent to dedde child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
      (1) this State is the home state of the child at the time of commencement of the proceeding, or has been the child’s home state within six (6) months before commencement of the proceeding . . .
      (2) it is in the best interest of the child that a court of this State assume j urisdiction because the child and his parents, or the child and at least one contestant, have a significant connection with this State, and there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
      (3) the child is physically present in this State and the child has been abandoned or it is necessary in an emergency to protect the child ...
      (4) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction.
      (b) except under paragraphs (3) and (4) of subsection (a), physical presence in this State of the child, or of the child and one (1) of the contestants, is not alone sufficient to confer j urisdiction on a court of this State to make a child custody determination.


author: John I. Purtle, Justice.

text:
    Andrew Lee DANIELS v. STATE of Arkansas
    CR 82-49
    638 S.W.2d 676
    Supreme Court of Arkansas
    Opinion delivered September 13, 1982

      William R. Simpson, Jr., Public Defender, and Sandra Berry, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

The appellant was found guilty of first degree murder by a jury and sentenced by the trial court. The sole ground on appeal is that the court erred in refusing to allow appellant’s sister to testify about matters which took place during the time the two were growing up. We do not find any prejudicial error and affirm the trial court.

The appellant shot the victim with a handgun on September 7, 1980. Immediate death resulted. It was never argued by appellant that his hand did not hold the gun which fired the fatal shot into the body of the deceased.

In view of the fact that the only ground argued on appeal is the refusal of the trial court to allow the appellant’s sister to testify about appellant’s childhood, we will not set forth other facts presented during trial. Appellant’s sister was a witness on his behalf and was asked to tell about what happened when she and her brother were growing up together. An objection by the state was sustained on the grounds that the homicide occurred in September 1980 and the information being elicited had occurred in the 1940s and 1950s. There was no proffer of what the witness’s testimony would have been. Subsequently the appellant took the stand and testified about the matters which appellant’s attorney was attempting to elicit from the sister at the time of the objection. The attorney for the appellant had described the details of appellant’s childhood in the opening statement.

The only question to be determined by this court is whether the trial court committed reversible error in rejecting the testimony of appellant’s sister, Essie Daniels, as it related to the growing up phase of appellant’s life. We have many times held that the relevancy of evidence is a matter which lies within the sound discretion of the trial court and absent a showing of abuse of that discretion we will not disturb the ruling of the trial court. Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980); and Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). There was no allegation on the part of the appellant that his defense was one of mental disease or defect. It appears that the defense wanted to show that by reason of his childhood environment he reacted without thinking in situations such as existed at the time of the homicide. We have never recognized such a condition, even if proven, to be a valid defense absent a finding of mental disease or defect.

It is necessary that the state prove its case beyond a reasonable doubt. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979). The excluded testimony was not properly presented as mitigating evidence. Killman v. State, 274 Ark. 422, 625 S.W.2d 489 (1981). We would note the appellant’s sister did testify in detail about events leading up to the shooting and matters which occurred soon thereafter. Her testimony was curtailed only as it related to the appellant’s childhood.

Since the excluded testimony was not presented as a mitigating circumstance and was not relevant to the matter before the court, we cannot say that the trial court abused its discretion. Further, there was no proffer so that we could examine the content of what the witness’s testimony would have been. Therefore, the j udgment entered in the trial court must be affirmed.

Affirmed.


author: Steele Hays, Justice.

text:
    ROBERTS ENTERPRISES, INC. v. ARKANSAS STATE HIGHWAY COMMISSION
    82-85
    638 S.W.2d 675
    Supreme Court of Arkansas
    Opinion delivered September 13, 1982

      Paul F. Henson and Robert F. Fussell, for appellant.

      Thomas B. Keys and Charles Johnson, for appellee.
   Steele Hays, Justice.

In June 1981 the Arkansas State Highway Commission filed condemnation proceedings against three outdoor advertising signs erected and maintained by Roberts Enterprises, Inc. under permits from the Highway Commission and leases from landowners adjacent to Interstate 40 in Conway County. The Highway Commission alleged the billboards were non-conforming and the taking was necessary to preserve natural beauty and promote health, safety and welfare pursuant to the Arkansas Highway Beautification Act.

In response, Roberts Enterprises, Inc. moved the Court to dismiss the complaint, strike the declaration of taking, and issue a writ of mandamus directing the Highway Commission to conduct an administrative hearing in accordance with the Administrative Procedures Act. The motions were denied and Roberts Enterprises, Inc. has appealed.

We do not reach the arguments raised because no final order has been entered by the trial court. See Rule 2, Rules of Appellate Procedure. The denial Of a motion to dismiss an action is not a final judgment from which an appeal will lie. Wicker v. Wicker, 223 Ark. 219, 265 S.W.2d 6 (1954). In order for a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. McConnell v. Sadle, 248 Ark. 1182, 455 S.W.2d 880 (1970). Piercy v. Baldwin, 205 Ark. 413, 168 S.W.2d 1110 (1943). Here, the order does none of those and we are without jurisdiction to hear the appeal. Arkansas Savings & Loan Association v. Cornell Savings & Loan Association, 252 Ark. 264, 478 S.W.2d 431 (1972).

The appeal is dismissed.

Adkisson, C.J., not participating.


author: Per Curiam.

text:
    Morris WOODS, Jr. v. STATE of Arkansas
    638 S.W.2d 677
    Supreme Court of Arkansas
    Opinion delivered September 13, 1982

      Robert B. Lamb, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant, Morris Woods, Jr., by his attorney, has filed a motion for a rule on the clerk.

His attorney, Robert B. Lamb, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Richard B. Adkisson, Chief Justice.

text:
    Willie BANKS, Jr. v. STATE of Arkansas
    CR 82-38
    639 S.W.2d 509
    Supreme Court of Arkansas
    Opinion delivered September 20, 1982
    [Rehearing denied October 25, 1982.]

      Harold L. Hall, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

After a trial by jury, appellant, Willie Banks, Jr., was convicted of rape and sentenced as a habitual offender to 30 years in the Arkansas Department of Correction. On appeal, we affirm.

About noon on Thursday, May 7, 1981, appellant went to the victim’s apartment asking for the telephone number of the victim’s twin sister. He had previously dated the sister while she was visiting in Little Rock.

The victim testified as to what transpired in her apartment: She stated that appellant talked for awhile and then stated “I want to be with you.” She objected and attempted to go around him but he grabbed her, telling her to sit down. He then stated in a loud voice, “You’re going to be with me or I’m going to get crazy. I can get crazy.” He ordered her to go into the bedroom, and “pull your panties off.” He then forced her to have sexual intercourse twice. He also threatened her about going to the police, telling her that if she did, he would “do something crazy” to her and “get” her parents and relatives. After the bedroom incident, he followed her around the apartment, continuing to threaten her. At one point she was able to yell out the door for help but he pushed her back inside and pulled her over to the living room couch. At that time she said, “Please don’t make me do this.” He told her to “Shut up ... before I beat you in your head,” and again had sexual intercourse with her. She eventually escaped and locked herself in the bathroom, where she stayed 35-45 minutes. She heard appellant leave shortly before 3:00 p.m. The victim did not have a telephone, so she waited until her next door neighbor came home before telling anyone about the rape. The neighbor’s girlfriend called Rape Crisis about 6:00 p.m.

Appellant argues that the evidence is insufficient to support the conviction because of alleged inconsistencies in the victim’s testimony. Appellant first contends that the victim’s testimony as to whether her sundress was on or off is inconsistent. However, a reading of the victim’s entire testimony reveals that she testified that her sundress remained on during the first rape, but that she removed it at appellant’s direction before one of the subsequent rapes.

Appellant also argues that appellant’s testimony as to the time of the rape is inconsistent, alleging that at one time she said it was about 12:00 p.m. or 12:15 p.m. and another time she said it was around 3:00 p.m. This alleged inconsistency is again resolved by a reading of her entire testimony, which reveals that she was raped at various times, the first occurring around noon and the last occurring at approximately 3:00 p.m.

Appellant also argues there is insufficient evidence that the rape was committed with the requisite force. Forcible compulsion is an element of rape and is defined by Ark. Stat. Ann. § 41-1801 (2) (Repl. 1977) as:

. . . physical force, or a threat, express or implied, of death or physical injury to or kidnapping of any person.

Here, the victim’s testimony indicates that she was subjected to both express and implied threats of physical injury: The victim testified that when she objected to appellant’s first advance and attempted to get around him, he grabbed her and told her to sit down. He then told her that he could “get crazy.” She testified that she was scared not to go into the bedroom when he told her to go. “I was afraid he might jump on me and beat me up.” She testified that prior to sexual intercourse in the living room appellant did threaten to beat her. She also testified that she was trembling and crying throughout the entire ordeal.

We stated in Mills v. State, 270 Ark. 141, 603 S.W.2d 416 (1980) that subjective feelings of fear of physical injury by the victim must be based on some act of the accused that can be reasonably interpreted to warrant such fear. The above testimony is sufficient to show that the requisite force was present and that the victim’s fear was warranted.

Appellant argues that the trial court erred in proceeding to trial without the presence of two witnesses subpoenaed by appellant. The investigator for the public defender testified that one witness, a cousin of appellant named Carl Banks, was afraid to come to court because there were too many warrants out for him. He stated that the second witness, Tommy Jackson, was served and promised he would come, but had been put in jail, then released, and could not be located.

The substance of the witnesses’ testimony was disclosed by defense counsel at a pretrial hearing. He stated that Carl Banks would testify that he had seen appellant and the victim together when they came over to his apartment. However, counsel was unable to say whether the witness could tell the victim and her twin sister apart. The other witness, Tommy Jackson, would testify that he left appellant at the victim’s house while he used appellant’s car for two or three hours. On the day of the trial, defense counsel waived the presence of the witnesses by stating “Even if they [the witnesses] were here, it would be very doubtful if I would use them.”

Appellant has failed to show how he was prejudiced by the failure of these witnesses to testify. Carl Banks’s testimony that appellant and the victim had come to his apartment would not aid appellant’s defense, since it was not shown that Banks could tell the difference between the victim and her twin sister. Tommy Jackson’s testimony that he had dropped appellant off at the victim’s apartment would not materially help appellant’s case either because it is undisputed that appellant had been to the apartment while dating the victim’s twin sister. Under these circumstances, it was not error for the trial court to proceed to trial without the two witnesses.

Appellant’s last point for reversal is that a mistrial should have been granted because at trial the prosecutor asked whether appellant had given a statement after he received the Miranda warnings. Appellant’s argument is based upon the following exchange between the prosecutor and a Little Rock police officer:

Q Did he [appellant] acknowledge whether or not he understood his rights?
A Yes, sir. He said he understood them.
Q And, as a result of that, did he give you any statement concerning . . .

At that point appellant’s attorney objected and after a bench conference the question was withdrawn. Defense counsel moved for a mistrial after the officer finished testifying, which was denied by the court:

THE COURT:
I don’t think there has been any inference to the jury. . . . Bill, this jury has heard and I have heard Defense Counsel on hundreds of cases where they don’t advise them of their rights just raise Cain because they don’t advise them. And this jury may very well think whether he made a statement or not he should be advised of his rights. And most people think they are from TV.
There was no question about a statement, whether he did or didn’t. So, there’s no inference for the jury. And, as far as I’m concerned, there’s ho prejudice to the Defendant. The jury just thinks he was advised of his rights, which they’re supposed to do, whether they took a statement or not. That has no import one way or the other.
So, I’ll overrule your motion.

The court did not err in overruling the motion. The jury received absolutely no prejudicial information as to whether appellant did or did not give a statement. We cannot presume prejudice from the above exchange.

Affirmed.


text:
    Richard S. BRASHER, Jr. v. STATE of Arkansas
    CR 82-65
    639 S.W.2d 50
    Supreme Court of Arkansas
    Opinion delivered September 20, 1982

      John W. Settle, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

At about 8:00 p.m. on March 11, 1981, two armed men entered a drugstore in Fort Smith and forced the clerks to turn over the money in the cash register. One of the men displayed a knife and had a dark pullover shirt drawn up over part of his face. The robbery was reported at once, with descriptions of the robbers being broadcast over the police radio. Within a very few minutes two cruising police officers detained the appellant Brasher four or five blocks from the drugstore, because he matched the description of one robber in that he had on a dark pullover shirt, was of medium height and build, and had blond hair. Before the police placed Brasher under arrest one of the clerks, who was following Brasher, drove up and identified him as one of the robbers. When Brasher was patted down the police found a knife under his belt. A line-up was conducted at about 10:00 that night, with three clerks identifying Brasher.

Brasher was charged with aggravated robbery; the State also requested revocation of Brasher’s suspended sentence in an earlier case. This appeal from a verdict and judgment finding Brasher guilty and fixing his sentence at 50 years comes to us under Rule 29 (1) (b). There is no substance to any of the appellant’s arguments for reversal.

It is first argued that the trial judge should have recused himself, for bias, because he fixed Brasher’s bond in the revocation case at $25,000 after a municipal judge had set a $5,000 bond in the present case. No testimony was taken upon the appellant’s motion for recusal or with respect to the reasonableness of the $25,000 bond. It is simply argued that the trial judge’s action in setting the $25,000 bond, in contrast to the smaller bond set by the municipal judge, showed such bias against Brasher that the circuit judge should have withdrawn from the case. In our opinion a mere statement of the argument is sufficient to show its total want of merit.

Second, it is argued that Brasher’s knife and pullover shirt should have been excluded as evidence, because the police had no probable cause to stop Brasher as he walked down the street. Brasher did match the broadcast description except that his height is 5'10" instead of 5'7" and he was not wearing a jacket described in the broadcast. He could have discarded the jacket; the variance in height is trivial. Moreover, an eyewitness identified Brasher immediately after he was stopped. Thus there was ample probable cause for Brasher’s detention and arrest.

Third, the line-up was not unfair. Brasher was slightly shorter than the other four men in the line-up, but they all had similar mustaches, they all wore similar jail clothing, and there is nothing in the picture of the line-up that tends to point to Brasher as a suspect. The public defender’s fourth point, that two harmless remarks by the prosecutor called for a mistrial, is so lacking in merit that no discussion is necessary.

Affirmed.


text:
    Gordan Andrew BEARD, Sr., Johnny Neal MORRISON and Marvis COOK v. STATE of Arkansas
    CR 82-20
    639 S.W.2d 52
    Supreme Court of Arkansas
    Opinion delivered September 20, 1982

      David H. Williams, for appellants.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The primary issue in this case is whether the double jeopardy rights of the appellants will be violated if they are required to stand trial following a mistrial due to a "hung jury.” At 4:15 p.m., after approximately 50 minutes of deliberation, the jury foreman returned to the courtroom and reported to the court that the jury had first voted 7 to 5 for acquittal and then twice voted 9 to 3 for acquittal. He advised the court that one j uror had ‘ ‘said that there was no way that anything that anybody could say that would make him say anything except guilty.” The foreman stated that he was of the opinion that if the jury voted several more times the vote would not change. Thereupon, the court had the jury brought into the courtroom where he told them that the foreman had reported it was “hopelessly deadlocked”; the court advised it would be necessary to have a retrial before another jury if they were unable to agree on a verdict; that he had a "booster” instruction which would urge them to reach a verdict to avoid the expense of a retrial; however, due to the explanation conveyed to him by the foreman, he felt it would be "a waste of your time for you to consider to deliberate or to continue and deliberate.” He then declared a mistrial. The court’s formal order reflects that appellants’ attorney objected, requested further deliberation and the giving of the "Allen instruction” if subsequent efforts to reach a verdict were unsuccessful.

Before the retrial date, the appellants moved to dismiss the information on the ground that a retrial would violate the double jeopardy clause of Art. 2, § 8, Constitution of Arkansas (1874), and the Fifth Amendment to the United States Constituton. The motion was denied — hence this appeal which seeks to prohibit a retrial. The denial of a plea of double jeopardy is a final and appealable order. Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959).

Appellants first contend that the trial court erred in declaring a mistrial because there was insufficient showing of "manifest necessity.” The basic principle was articulated in United States v. Perez, 22 U.S. (9 Wheat) 579 (1824) as follows:

We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a j ury from giving any verdict, whenever in their opinion, taking all circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere.

The statutory authority for discharging the jury is found in Ark. Stat. Ann. § 43-2140 (Repl. 1977), which provides in pertinent part:

If... after being kept together such a length of time as the court deems proper, they do not agree in a verdict, and it satisfactorily appears that there is no probability they can agree, the court may discharge them. (Italics supplied.)

This statute lays down essentially the same rule as did the ABA Standard for Criminal Justice (2nd. Ed. 1980) § 15 - 4.4 (c), which states:

The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement. (Italics supplied.)

No mechanical formula for determining when discharge of the jury is proper is contemplated by the statute or the ABA Standards. The commentary to § 15.135 states in pertinent part:

Instead the real question is whether the jury was required to deliberate an unreasonable length of time or was threatened with the prospect of such unreasonably lengthy deliberations .... The reasonableness of the deliberation period depends on such factors as the length of the trial, the nature or complexity of the case, the volume and nature of the evidence, the presence of multiple counts or multiple defendants, and the jurors’ statements to the court concerning the probability of agreement. (Italics supplied.)

This was a short trial. All of the proceedings, which included selection of the jury, arguments of counsel, presenting evidence, giving instructions, including an hour and a half lunch break, were completed and the case was submitted to the jury by 3:25 p.m. of the same day. This case was a simple charge of theft of property, Ark. Stat. Ann. § 41-2203 (Repl. 1977), which did not involve complicated facts nor require complex instructions that would cause the jury unusual difficulty. The testimony of the state’s witnesses was undisputed. The only question for the jury was whether to infer guilt from the undisputed circumstantial evidence. Each defendant was charged with only one count. The charge and the evidence were the same with respect to each. The statement of the jury foreman certainly indicated that there was no reasonable probability of agreement. We cannot say, upon consideration of all the relevant factors, that the trial court, which was in a better position than we to evaluate the situation, abused its discretion when it declared a mistrial.

Appellants also argue and cite cases which they say support the proposition that the trial court is required to question each juror whenever the jury has not spontaneously claimed a deadlock. Here, however, the record indicates that the jury foreman returned to the courtroom and spontaneously reported to the court the difficulty the jury was having. Further, as indicated, the court then had the jury return to the courtroom where he explained to it the information conveyed by the foreman that the jury was hopelessly deadlocked. No juror objected nor disagreed with the foreman’s report.

Appellants next contend that the evidence is insufficient, as a matter of law, to support a conviction and, therefore, it would constitute double jeopardy to permit a retrial. The state responds that in the absence of a final judgment the issue of the sufficiency of the evidence is not properly before the court. Suffice it to say that we consider the evidence sufficient. At approximately 1 a.m. it was discovered that the signal system on the railroad tracks was malfunctioning. An employee of the railroad and a deputy sheriff drove to the scene to investigate. As they approached a vehicle was observed with its headlights on leaving the area. This vehicle stopped and before the headlights were turned off they saw some activity about the truck. In about five minutes the headlights on the truck came on and it then approached the investigating officers who stopped it. The appellants were the occupants. The railroad employee went to the scene where the vehicle first stopped and found beside the road copper wire which had been cut from the railroad premises. This wire was used to control the signals. Laboratory tests of appellants’ clothing and gloves showed traces of copper. Certainly, this evidence, when viewed most favorably to the appellee as we must do on appeal, constitutes substantial evidence. Cooper v. State, 275 Ark. 207, 628 S.W.2d 324 (1982).

In a subordinate argument, appellants assert that there is no evidence of the value of the property by any witness qualified to so testify. As abstracted, there was no objection made to the testimony of the value witness, a railroad employee. The record, however, reflects that the trial court sustained appellants’ objection to the railroad employee’s testimony that a stock catalogue, with which the witness was familiar, indicated the value of the wire. Following a recess, the stock catalogue, customarily used by the railroad for replenishment purposes, was acquired and then this witness was permitted to state the catalogue price without any further objection. We find no error. See Uniform Rules of Evidence, Rule 803 (17).

Affirmed.


text:
    Donnie BREWER v. STATE of Arkansas
    CR 82-73
    639 S.W.2d 54
    Supreme Court of Arkansas
    Opinion delivered September 20, 1982

      Highsmith, Gregg, Hart ér Farris, by: Phillip Farris and Josephine L. Hart, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Donnie Brewer was convicted of first degree murder and aggravated robbery and received a thirty year sentence for the murder and fifteen years for the aggravated robbery, to be served consecutively.

The only question on appeal is whether the convictions for aggravated robbery and first degree murder violate the prohibition against double jeopardy in Ark. Stat. Ann. § 41-105 (Repl. 1977). The aggravated robbery in this case was a lesser included offense of first degree murder and Brewer could not be convicted and sentenced for both crimes. Therefore, the conviction for aggravated robbery is set aside.

Brewer was one of three men charged with the robbery of the combination grocery store and post office in Charlotte, Arkansas on December 14, 1978, and the death of Morris Lillard in connection with that robbery. David Weaver, one of the defendants, pleaded guilty and was sentenced to twenty-four years in prison. He testified against Brewer and according to his testimony Brewer fired the weapon that killed Mr. Lillard. Ronnie Brewer, the appellant’s brother, was convicted of robbery but acquitted of murder. See Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981).

The only question concerned in this appeal involves the issue of double jeopardy. Ark. Stat. Ann. § 41-105 (Repl. 1977) provides:

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

There is no doubt in this case that the conviction and sentence of Brewer for the second offense violated this provision of Arkansas law. See Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981); and Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982). Therefore, the conviction and sentence for aggravated robbery are set aside. The conviction and sentence for first degree murder are affirmed. Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982); Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981).

Affirmed as modified.


text:
    James WILSON v. STATE of Arkansas
    CR 82-32
    639 S.W.2d 45
    Supreme Court of Arkansas
    Opinion delivered September 20, 1982

      Appellant pro se and C. B. Barksdale, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant James Wilson was convicted by a jury of (1) two counts of theft by deception, Ark. Stat. Ann. § 41-2203 (1) (b) (Repl. 1979); (2) one count of theft of property, Ark. Stat. Ann. § 41-2203 (2) (b) (i) (Repl. 1979); and (3) escape in the second degree, Ark. Stat. Ann. § 41-2811 (Repl. 1979). He was sentenced as a habitual offender with four or more prior felony convictions to a total of thirty-five years imprisonment in the Arkansas Department of Correction. A fine of $1,000 was also assessed. The prison term was ordered served consecutively to a term the appellant was already serving. It is from these convictions that appellant brings this appeal.

Appellant’s motion to proceed pro se at trial was granted. An attorney, C. B. Barksdale, was appointed co-counsel to advise him during trial. Appellant’s request to proceed pro se on appeal was denied, but he was allowed to file a brief, an amended brief and a reply brief. Appellate counsel Barksdale filed a motion to be relieved as counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and a brief stating there is no merit to the appeal. The State concurs that the appeal has no merit.

The theft by deception charges against appellant Wilson grew out of evidence of a deal he made with Clifford Dockins to sell Dockins, a sawmill owner, timber. The timber was to be cut from two parcels of land which appellant claimed to have either leased or purchased. After Dockins paid for the timber, he learned that appellant had not fulfilled his rights under the lease agreement on one piece of property and had never acquired the timber rights. It appears that he had no interest at all in the other parcel. When Dockins demanded his money back, appellant gave him two checks, one for $ 15,000 and one for $ 100. There were no funds on deposit to cover the checks.

The theft of property and escape charges arose after appellant fled the Izard County Jail, taking a portable radio valued at approximately $900.

In accordance with Supreme Court Rule 11 (h) appellant’s appointed counsel has raised several points for possible reversal. Appellant’s lengthy pro se brief raises a number of issues in addition to those argued by counsel, but many of those issues, including appellant’s claim that he was not guilty by reason of insanity, were not raised at trial and will not therefore be considered by this Court for the first time on appeal. See Washington v. State, 276 Ark. 140, 633 S.W.2d 24 (1982); Rode v. State, 274 Ark. 410, 625 S.W.2d 469 (1981); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Appellant made a pretrial motion to dismiss all charges against him. Appellant claimed that it would be a violation of the constitutional provisions against double jeopardy for him to be tried because he was not delivered from the federal penitentiary to the county authorities within ten days after the extradition order was issued. This appears unsupported by the record. The trial court correctly ruled that appellant’s argument did not merit dismissal of the charges.

Appellant also argued that the theft of property charge should be dismissed for insufficient evidence. Appellant apparently believed that he could not be tried for stealing the police radio since the radio was never recovered. Sufficient evidence to support a charge of theft may exist even though the stolen object cannot be produced at trial. Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979). Since there was evidence to support the charge against appellant, we find no abuse of that discretion here.

Appellant asked the court to order polygraph examinations for him and Clifford Dockins. There is no constitutional right to a polygraph test. Results of polygraph examinations are not admissible unless both parties enter into a written stipulation agreeing that the results will be admissible. State v. Bullock, 262 Ark. 394, 557 S.W.2d 193 (1977). The State declined to enter into such a stipulation, and it was not error for the court to deny appellant’s request.

After appellant was taken into custody, he gave a statement which the county sheriff reduced to writing. The statement was not signed by the appellant. At trial the State sought to have the sheriff testify as to the contents of the statement over the appellant’s objection. At a hearing on whether the sheriff’s testimony was admissible, the appellant testified that he had been given his Miranda rights and that he spoke voluntarily. The court ruled that the statement would not be introduced but the sheriff could use it to refresh his memory. Appellant apparently acquiesced to the ruling as he stated, "That’s good enough.” Even if he had not agreed, however, Rule 612 of the Uniform Rules of Evidence, Ark. Stat. Ann. Vol. 3A (Repl. 1979), provides that a witness may use a writing to refresh his memory.

Without giving a reason for the request, appellant asked that a prosecution witness be allowed to remain in the courtroom during trial. The State objected. Both sides had requested the exclusion of witnesses pursuant to Rule 615 of the Uniform Rules of Evidence, Ark. Stat. Ann. Vol. 3A (Repl. 1979). The trial court therefore was correct in denying the appellant’s motion.

The prosecution amended the information to allege six or more prior felony convictions. Appellant moved for a mistrial on the ground that the court had granted a one-day continuance giving the State an opportunity to amend the information. The granting of a continuance is in the sound discretion of the trial court. Collins v. State, 276 Ark. 62, 632 S.W.2d 418 (1982). There is nothing in the record to indicate that the court erred in allowing the continuance. The fact that the information was amended during that time does not show that appellant was treated unfairly. It is well settled that the information may be amended during trial as long as the nature or degree of the crime charged is not changed. Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982).

The papers which appellant left behind when he escaped from the Izard County jail were turned over to a federal marshal. The marshal delivered one of the papers, a note written by appellant stating the reason for his escape, to the state crime laboratory for analysis of the handwriting. Appellant objected to the introduction of the note into evidence on the ground that the chain of custody had not been established. The purpose of establishing the chain of custody is to prevent the introduction of evidence which is not authentic. Fight v. State, 254 Ark. 927, 497 S.W.2d 262 (1973). To prove authenticity, the State must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. Baughman v. State, 265 Ark. 869, 582 S.W.2d 4 (1979). The chain of custody here was established sufficiently through the testimony of the witnesses who traced the note from the county jail to its introduction at trial.

At the close of the prosecution’s case and in his pro se brief, the appellant challenged the sufficiency of the evidence against him. On appeal this Court views the evidence in the light most favorable to the appellee and affirms if there is any substantial evidence to support the conviction. Substantial evidence is that which is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). The fact some evidence may be circumstantial does not render it insubstantial — the law makes no distinction between direct evidence of a fact and evidence of circumstances from which a fact may be inferred. Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975).

Witnesses established that appellant held himself out to Clifford Dockins as the owner or lessee of timber land. There was testimony that appellant did not in fact have the right to sell the timber and that he gave Dockins two worthless checks when Dockins demanded reimbursement. Appellant also admitted signing the checks. Ark. Stat. Ann. § 41 -2203 (1) (b) (Repl. 1979), provides that a person commits theft of property if he “knowingly obtains the property of another person by deception or by threat, with the purpose of depriving the owner thereof.” The offense is a class B felony if the value of the property is $2,500 or more. It is a class C felony if the value is less than $2,500 but more than $100. The evidence indicated that Dockins paid appellant a total of $15,100 for the timber. It is unclear which parcel of land the $100 check was paid on, but it is apparently the basis of the class C misdemeanor charge. Since Dockins appears to have received $1,200 to $1,400 from the timber from one parcel of land, he was apparently deprived of nearly $14,000. The amount, which exceeds the statutory figure of $2,500, and the testimony regarding appellant’s actions are clearly sufficient to support the class B felony charge. The court offered to dismiss the misdemeanor charge but appellant specifically requested that the charge go to the jury. Under these circumstances, he cannot now complain that the charge should have been dismissed.

We also find sufficient evidence to support appellant’s conviction for escape and theft of the radio. Deputy Sheriff Moser testified that appellant persuaded him to leave his door unlocked so that he could escape. Sheriff Yancey also testified that appellant left the jail after locking Moser in the cell. The Sheriff further testified that the radio was discovered missing after the escape and that appellant offered to return the radio if the charges against him were dropped. A prisoner in the county jail testified that he saw the radio in appellant’s pocket on the night he escaped.

Appellant argues in his brief that the witnesses told conflicting stories and cannot be believed, but the credibility of the witnesses and the resolution of conflicts in testimony are matters for the jury. Stout v. State, 263 Ark. 355, 565 S.W.2d 23 (1978).

In his brief appellant seeks to introduce evidence not presented to the trial court regarding a checking account at the Bank of Salem. He also asserts that various county officials offered to accept bribes and bargained for testimony favorable to the prosecution. The appellant had ample opportunity to raise these issues at trial and to offer whatever proof he had to support them. He cannot raise new evidence nor new issues on appeal. Washington, supra.

Portions of appellant’s brief are not intelligible, but he appears to allege that he was prejudiced because the jury knew he had a criminal record. If so, he invited the prejudice by enumerating his past convictions during voir dire of the prospective jury. A conviction cannot be reversed for prejudice invited by the appellant. Strode v. State, 259 Ark. 859, 537 S.W.2d 162 (1976).

Appellant next asserts that the trial court gave no jury instructions, or in the alternative, gave inadequate jury instructions. The record shows that the court instructed the jury in both the guilt and sentencing phases. Appellant neither requested any instructions nor objected to those given. He cannot therefore raise the issue on appeal. Eskew & Bolton v. State, 273 Ark. 490, 621 S.W.2d 220 (1981).

Several witnesses testified for the defense, but appellant states that he wished to call others which were not subpoenaed or which were prematurely dismissed. He also contends that the trial court hurried the defense so that witnesses could not be questioned thoroughly. In light of the trial court’s marked patience with appellant, we find the allegations frivolous. Several times the court took steps to see that appellant had full opportunity to subpoena and question witnesses. He does not specify the names of the witnesses he wished to call, but the record shows that appellant himself declined to call certain witnesses when the trial court offered to see that they appeared.

The trial court denied appellant’s motion to have the jury view the jail from which he escaped. Absent an abuse of judicial discretion, which we do not find in this case, a court’s decision to deny a motion to view the crime scene is not grounds for reversal of a conviction. Lee v. State, 229 Ark. 354, 315 S.W.2d 916 (1958), cert. denied, 359 U.S. 930, 79 S.Ct. 616, 3 L.Ed.2d 633 (1959).

Appellant argues that the trial court failed to send evidence into the jury room. Appellant did not request that the jury receive certain exhibits, however, and the court was not required to place the exhibits in the jury room. See Nathan v. State, 235 Ark. 704, 361 S.W.2d 637 (1962).

Finally, appellant seeks to raise ineffective assistance of co-counsel Barksdale as an issue on appeal, but ineffective assistance of counsel cannot be raised for the first time on direct appeal. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). He also asserts that he, himself, should never have been permitted to handle his defense at trial. However, he demanded the right to do so. The trial judge questioned him at length about his competence to act as his own attorney. Appellant repeatedly assured the court that he had the knowledge to defend himself and a strong desire to try the case. In light of appellant’s insistence that he be allowed to act as his counsel and the fact that an appointed attorney acted as legal advisor, we cannot say that the trial court erred in allowing appellant to proceed pro se.

From a review of the record and briefs before this Court, we find the appeal to be without merit. Accordingly, counsel’s motion to be relieved is granted and the judgment is affirmed.

Affirmed.


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    Thomas Preston WILLIAMSON v. STATE of Arkansas
    CR 82-42
    639 S.W.2d 55
    Supreme Court of Arkansas
    Opinion delivered September 20, 1982

      Carolyn Lee Whitefield, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant Thomas Preston Williamson was convicted by a jury of murder in the first degree, Ark. Stat. Ann. § 41-1502 (Repl. 1977). He was sentenced to life imprisonment in the Arkansas Department of Correction. It is from that conviction that appellant brings this appeal.

Pursuant to Anders v. California, 386 U.S. 738 (1967), appellant’s counsel has filed a motion to be relieved as counsel and a brief stating there is no merit to the appeal. Appellant was notified of his right to file a pro se brief raising any point he desired. He has not filed such a brief. The State concurs that the appeal has no merit.

On February 22, 1981, the appellant shot Michael Murrah in a Texarkana parking lot. The next day he made a statement to the police admitting to the crime. Appellant subsequently filed a pretrial motion contending that he was mentally incompetent and as a result lacked the capacity to freely and voluntarily make a statement. After a hearing, the trial court ruled that the statement was voluntarily given. On appeal, this Court examines such a ruling to see if the State proved by a preponderance of the evidence that the statement was voluntarily given. State v. Branham, 275 Ark. 16, 627 S.W.2d 8 (1982); Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981); Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974). We make an independent determination of this issue considering the totality of the circumstances and affirm the trial court unless we can say the lower court was clearly wrong. Branham, supra; Harrison v. State, 276 Ark. 469, 637 S.W.2d 549 (1982); Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975). In this case there were psychologists’ reports which concluded that the appellant’s intellectual functioning was significantly impaired, but there was another report which found that the appellant had the mental capacity to understand the legal proceedings. The officer who took the statement testified that the appellant indicated that he understood his rights and was voluntarily waiving them. Where the voluntariness of a confession is in issue, any conflict in the testimony of witnesses is for the trial court to resolve. Harrison, supra; Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). Here, the trial judge considered the credibility of the witness and the conflicting psychological reports and concluded that appellant was capable of making a voluntary statement. We cannot say from an independent examination of the record that his finding was in error.

Even without appellant’s statement, there was ample evidence to support his conviction. Several witnesses saw him at the scene of the shooting and one witness saw him fire the shots. A ballistics expert testified that the bullets which killed the victim were fired from a gun belonging to appellant’s father. Although there was testimony that appellant may have been drinking at the time he shot Murrah and that he was mentally deficient as a result of long-term alcohol abuse, it was for the jury to decide if he was legally responsible for his actions. Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981).

Upon a review of the record and briefs before this Court, we find the appeal to be without merit. Accordingly, counsel’s motion to be relieved is granted and the judgment is affirmed.

Affirmed.


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    Dolly M. PARTIN v. Bob MEYER et al
    82-46
    639 S.W.2d 342
    Supreme Court of Arkansas
    Opinion delivered September 27, 1982

      Sexton ir Porter, P.A., by: /. Lamar Porter, for appellant.

      Laser, Sharp ¿r Huckabay, P.A., for appellees.
   George Rose Smith, Justice.

Mrs. Partin brought this action for false imprisonment and slander as a result of having been detained and accused of theft while she was registering for an overnight room at the Ozark Inn in Clarksville. The defendants are the owners and the manager of the motel. The jury awarded Mrs. Partin $1,000 compensatory damages and $2,000 punitive damages. She apparently considers the awards inadequate and seeks a new trial on the ground that the trial court gave two erroneous instructions. The case comes to us as a tort action. Rule 29 (1) (o).

The appellant first complains about the court’s submission of an issue of probable cause to the jury. In explaining the issues the court first defined false imprisonment and then continued with this paragraph:

As a defense to this claim of Plaintiff, Dolly Partin, for false imprisonment, it is contended by the defendants that John Hancock [the motel manager] had probable cause for detaining the Plaintiff, Dolly Partin. A party who asserts the defense of probable cause has the burden of proving this defense.

The plaintiff objected below, and argues here, that there is no common-law right for one private citizen to detain another and that even if such right exists there is no substantial evidence to support a finding of probable cause for detention in this case.

There is a conflict in the parties’ versions of just what happened that night. Mrs. Partin, a resident of Alabama, testified that she was driving through Arkansas on her way to California. When she entered the motel about midnight, without a reservation, she tapped the bell at the desk, but no one appeared. She stepped behind the desk and looked into the adjoining room, but no one was there. As she was about to leave she saw a small sign indicating that the manager was in Room 201. When she knocked on that door, Hancock asked her to wait a minute while he dressed. He emerged shortly and accompanied her to the lobby. He unlocked a side door to get to the lobby. Mrs. Partin remarked that the lobby door was open and she had gone into the lobby.

Mrs. Partin signed a registration card and tendered a traveler’s check in payment. When Hancock opened the cash drawer to make change he discovered that the day’s receipts (about $600) were missing. According to Mrs. Partin, Hancock told her to stand still and said he was going to have to lock her up. He called the police and told them that she had robbed the motel. Hancock then locked the door.

Two police officers arrived within four or five minutes after receiving the call. They testified that Hancock accused Mrs. Partin of the theft and insisted that her purse and her car be searched. Mrs. Partin willingly consented to the searches and satisfied the police of her complete innocence.

Hancock testified that he and his wife were temporarily in Room 201, because the air conditioning in the lobby and their adjoining quarters was not working. He said that the cash drawer at the front desk was kept locked, with the key hanging behind a card on the wall. He denied having accused Mrs. Partin of the theft. His version was that when he discovered that the money was missing, "I told her that since she had been in the office and in the living quarters that she would need to wait and talk to the police, and I turned and called the police.” He admitted having locked the door, but he didn’t think he asked the officers to search Mrs. Partin. As we have indicated, the officers corroborated Mrs. Partin’s version of what happened after their arrival.

We do not agree with the argument that there is no common-law right in one person to detain another. To the contrary, we have said that our statute authorizing a private person to make an arrest upon reasonable grounds for believing that the arrested person has committed a felony “is in affirmance of the common law.” Carr v. State, 43 Ark. 99 (1884), construing Ark. Stat. Ann. § 43-404 (Repl. 1977). By definition an arrest includes a restraint of the person arrested or his submission to restraint; so the authority merely to detain is logically included within the authority to arrest, if that distinction matters.

The requirement of probable cause for a citizen’s arrest arises from an accommodation between two opposing principles. “The law of arrest represents the compromise between two conflicting interests of the highest order — the interest in personal liberty and the interest in apprehension of criminals. It represents one of the most successful efforts of the common law to accommodate itself both to the needs of society and of its individual members.” Harper and James, Torts, § 3.18 (1956).

Probable cause means that the arresting person must “reasonably suspect” the other person of having committed a felony. “It is enough that the circumstances which the actor knows or reasonably believes to exist are such as to create a reasonable belief that there is a likelihood that the other has committed the felony. In such cases, the public interest in the punishment of a felon requires the other’s arrest for the purpose of securing his custody pending investigation.” Restatement of the Law, Torts (2d), § 119, Comment; (1965).

We cannot say that the trial judge should have declared as a matter of law that Hancock had no probable cause for detaining Mrs. Partin. Hancock knew that a theft had occurred and that Mrs. Partin had been alone in that part of the lobby where the cash was kept. He had to make a quick decision whether or not to detain for a few minutes a transient who had had the opportunity to commit the crime. Probable cause, as we have seen, entails a “reasonable” suspicion and a “reasonable” belief. That standard of conduct, like that of the “reasonably” careful person, presents an issue for the jury unless “there is utterly no rational basis in the situation, tesdmonially, circumstantially, or inferentially, for a jury to believe otherwise.” Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962). However unlikely it may now seem that Mrs. Partin would have registered at the motel after having committed a theft, we think it was for the jury to say whether probable cause for the detention was shown. (Of course the jury actually rejected the defense of probable cause, since the verdict was for the plaintiff, but we do not imply that the error would have therefore been harmless if there had been no testimony justifying the submission of the defense.)

In the other questioned instruction the court told the jury:

You are instructed that falsely accusing one of a crime constituted what the law calls slander per se. In such cases, a person slandered is entitled to compensatory damages as a matter of law and such plaintiff is not required to introduce evidence of actual damages in order to recover compensatory damages.

As tendered by the plaintiff, the last clause in the paragraph read, “in order to recover substantial damages.” It is argued that the trial judge should not have modified the instruction by substituting the word “compensatory” for “substantial.”

The modification was proper. We have twice said in opinions that when words are actionable per se, the plaintiff need not prove actual damages in order to recover “substantial” damages. Dunaway v. Troutt, 232 Ark. 615, 339 S.W.2d 613 (1960); Taylor v. Gumpert, 96 Ark. 354, 131 S.W. 968 (1910). There we were using the word “substantial” to mean something more than nominal damages. The award, however, must always be compensatory; so the trial court correctly preferred that term in instructing the jury.

Affirmed.


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    Chester PERRY v. STATE of Arkansas
    CR 82-64
    639 S.W.2d 344
    Supreme Court of Arkansas
    Opinion delivered September 27, 1982

      Haskins & Wilson, by: John W. Achor, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted of first degree murder in the shooting death of one person and second degree battery in the shooting of another person. He received sentences, as the jury recommended, of 40 and 6 years imprisonment, respectively, and a $10,000 fine. We affirm.

Appellant, who claimed self-defense, first contends for reversal that the trial court erred in refusing to declare a mistrial following the testimony of a state’s witness who did not see either of the shootings. The witness testified that he was in a house fifty or sixty feet from the incident when he heard two shots. He immediately went outside and saw the appellant waving a gun, asking “who else wants some of this.” He also observed the appellant point a gun at a man named Nathaniel and say, “Do you want some of this?” and “I should have killed him.” This is not evidence of “other offenses” contrary to Rule 404 (b) of the Uniform Rules of Evidence as the appellant argues. The testimony of this witness as to what he saw and heard established a course of conduct during which the alleged crimes occurred and was relevant to the issue of motive or intent. Rule 404 (b) and Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978). Further, where acts are intermingled and contemporaneous with one another, the evidence with respect to any and all of them is admissible to show the circumstances surrounding the whole criminal episode. Harshaw v. State, 275 Ark. 481, 631 S.W.2d 300 (1982); Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981); Russell and Davis v. State, 262 Ark. 447, 559 S.W.2d 7 (1977); and Easley v. State, 109 Ark. 130, 159 S.W. 36 (1913).

The appellant next asserts that the trial court erred in denying his motion in limine to prevent the state from impeaching him, if he had testified, by a prior felony conviction. He argues that Rule 609 (b), Uniform Rules of Evidence, requires that the trial court should have granted this motion because the prejudicial effect of his prior conviction for murder outweighed its probative value. This argument was not made to the trial court, and, therefore, it cannot be considered on appeal. Rule 103 (a) (1), Uniform Rules of Evidence, A.R.Cr.P., Rule 36.21, Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), Pace v. State, 265 Ark. 712, 580 S.W.2d 689(1979).

Affirmed.