author: John A. Fogleman, Justice. Darrell Hickman, Justice,

text:
    Carl David WILBURN and E. J. JENNINGS, JR. v. TOPEKA CORPORATION, INC.
    78-228
    577 S.W. 2d 406
    Opinion delivered February 26, 1979
    (In Banc)

      Robert S. Blatt, for appellants.

      Daily, West, Core, Coffman & Canfield, for appellee and cross-appellant.
   John A. Fogleman, Justice.

Appellants were charged with the robbery of employees of the Fort Smith Sheraton Inn on April 17, 1977. After they had entered pleas of guilty and had been sentenced on March 4, 1978, appellants moved that $1,557.24 taken from them when they were arrested by Fayetteville police on April 18, 1977, be returned to them. After $650 of the money was turned over to the Fort Smith Sheraton Inn, appellants amended their request to ask that the remaining $907.24 be returned to them. On April 5, 1978, appellee, the operator of the Sheraton Inn of Texarkana, Arkansas, moved that this remaining money be turned over to it, alleging that this money was the proceeds of a robbery of the Texarkana Sheraton Inn on April 14, 1977. After a hearing on the motions, the trial court ordered that $157.24 be returned to appellants and $750 turned over to appellee. Appellants seek reversal on the ground that there was no substantial evidence to support the judgment. We agree and reverse the judgment.

It must be remembered that this is not an action by Topeka Corporation, Inc. to obtain a judgment for a civil liability of appellants for money taken by robbery and to collect that judgment by garnishment of moneys held by the Fort Smith Police Department. It is a motion for the return of seized property filed pursuant to Rule 15.2, Arkansas Rules of Criminal Procedure. Appellee was entitled to a return or restoration of the money seized only if it had a valid claim to the rightful possession of the things seized because these things had been stolen and it was the owner or the rightful possessor. We find no substantial evidence in the record before us to show that the Topeka Corporation was the owner of the things seized, i.e., the specific money then in the hands of the Fort Smith police.

We are somewhat handicapped in our review by reason of the fact that the record does not disclose things which appellee considers essential to the issues. Appellee filed a motion to dismiss the appeal, alleging that in spite of its designation of the entire record before the Circuit Court of Sebastian County, appellants had filed only a partial record of the proceedings below. This did not include the record of the criminal proceedings against appellants in the Circuit Court of Sebastian County, which appellee had designated, on the ground that the trial court, at its request, had taken judicial notice of those proceedings. Appellee asserted that these proceedings established a nexus between the two Sheraton Inn robberies, one at Texarkana and the other at Fort Smith. Appellee prayed that the appeal be dismissed, but that, in the alternative, its motion be treated as a motion for an extension of time within which the additional transcript proceedings could be prepared, in order that this court could render its decision upon the full record that was before the Sebastian Circuit Court. So far as we can tell from the affidavit of the Clerk of the Circuit Court of Sebastian County, these criminal proceedings consisted of a brief of the prosecuting attorney relating to the validity of a search by the Fayetteville police when appellants were arrested, and their seizure of the money found on appellants, and a letter from appellee’s attorneys addressed to the Judge of the Circuit Court of Sebastian County, requesting that the judge determine the content of the record, if appellant’s attorney desired that he do so.

We did not grant appellee’s motion to dismiss, but granted its alternate prayer. We have not found any additional transcript that has been filed here, in spite of our giving appellee the opportunity to file one. If nothing more than the prosecuting attorney’s brief was omitted, the record filed by appellant was not deficient, because that brief is not evidence, much less admissible evidence, on the issues here and, if this constituted the “proceedings” of which the trial court took judicial notice, it did so improperly. It appears, however, that there were certain pleadings in the criminal proceedings. Appellee has abstracted several pleadings, presumably from the criminal proceedings against appellants on the Sebastian County charge. None of these seem to have any relevance to the issues in this case. One of the pleadings abstracted is the brief of the prosecuting attorney, which, as we have said, could not be considered as evidence, unless the parties stipulated that it be. We find no such stipulation.

The evidence, viewed in the light most favorable to appellee, discloses that James Langford, an employee of appellee, who witnessed the Texarkana robbery, had subsequently identified Wilburn as one of the two robbers. Langford also testified that a weapon he had seen on this occasion looked like the weapon used in the Texarkana robbery. He described the vehicle in which the robbers came and left as a 70 or 71 model Torino, beige in color. He was unable to identify or recognize any of the money still held by the Fort Smith police as having been taken in the Texarkana robbery, four days before appellants were arrested.

When appellants were arrested, Jennings had $200 in $20 bills and $1.63 in change on his person. Wilburn had $180 in $20 bills, $25 in $5 bills and 95 cents in change on his person. A white plastic bag and a yellow paper bag were found in the rear of the gray Ford Torino occupied by appellants when they were arrested. These two bags contained money in the following denominations:

$20 bills $ 260

$10 bills 290

$5 bills 220

$1 bills 301

Change 146.85

$1217.85

Somehow a total of $1192.85 was calculated as the amount found in the rear of this vehicle. By an equally mysterious process, the total amount taken from these appellants and the vehicle was stated as $1557.24 and that amount was turned over to the Fort Smith police by the Fayetteville police.

The shortage reported by appellee’s accountants after the robbery included $750 in cash, which was made up of five “house banks.” The “front desk bank” amounted to $350, and each of four restaurant banks consisted of $100. The balance represented cash proceeds from the morning and evening shifts. Langford was the night clerk. He said that some $1 bills, some $5 bills, some $10 bills, some $20 bills and one or two $50 bills were taken from him. In addition to his $350 bank, three $100 bills were taken. He also said that there were quarters, dimes and nickels in rolls. Three rolls of dimes were wrapped in paper of the First National Bank of Fort Smith, with which appellee did no business. He had never seen a roll of nickels in a tan colored package, but had used rolls of quarters in orange and white wrappers, similar to some of those in question. There were coins in blue wrappers, which Langford said were commonly furnished by all banks. At the time of the robbery, none of the money taken had been in either of the bags found in appellants’ vehicle, although Langford said that he had seen a bag in the safe which contained the proceeds of the evening shift which preceded his shift and that the robbers took this bag.

Although appellee is probably correct in its contention that Rule 15.2 (f) and Ark. Stat. Ann. § 41-1401 (Repl. 1977) must be considered in conjunction with each other, the statute simply says that seized property must be returned to its rightful owner. There is no conflict between the statute and the rule, and the latter is simply the procedural implementation of the former. There simply is no evidence that any of the things seized from appellants were things of which appellee was the owner.

The judgment awarding appellee $750 of the money seized is reversed.

The Chief Justice would affirm the judgment as to Wilburn.

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting. I would affirm the judgment of the trial court in view of two standards we apply on review of trial judgments. First, we will not reverse if there is substantial evidence to support the trial court’s finding. Second, we view the evidence in the light most favorable to the appellee.

One of the appellants, Carl David Wilburn, was identified as an armed robber of the Texarkana Sheraton Inn. Both Wilburn and Jennings pleaded guilty to the charge of aggravated robbery of the Fort Smith Sheraton Inn which occurred several days after the Texarkana robbery. Apparently the appellants favor Sheraton Inns. These gentlemen were apprehended near Fayetteville with over $1,000.00 in the trunk of the vehicle. The description given by an employee of the Sheraton Inn at Texarkana of the vehicle used by Wilburn is similar to that of the vehicle the appellants were driving in Fayetteville.

Wilburn refused to open the trunk and, in fact, ran and threw the keys away.

The trial judge ordered a return of some $650.00 to the Fort Smith Sheraton Inn in a separate proceeding, and in this proceeding ordered $750.00 turned over to the Texarkana Sheraton Inn.

The majority finds that the money could not be identified as belonging to the Texarkana Sheraton Inn. Rarely can money which is taken from merchants be identified. However, this is a civil case, not a criminal case, and I feel that the appellee has made a prima facie showing that these gentlemen robbed it and still had some of the money. The fact that it was not in the exact denominations several days later does not impress me. The appellants put on no evidence whatsoever to indicate their occupation nor the source of the money, and I suppose we can assume they are in the business of robbing people for money. At least that is what the record indicates.

I would affirm the judgment of the trial court.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Lester HOSTO et al v. Leonard Edward BRICKELL
    78-266
    577 S.W. 2d 401
    Opinion delivered February 26, 1979
    (Division II)

      Wright, Lindsey & Jennings, for appellants.

      Paul D. Groce, for appellee.
   John A. Fogleman, Justice.

This is an appeal from the order of the circuit court reversing the suspension by the Arkansas State Board of Pharmacy of the license of Leonard Edward Brickell to practice pharmacy. All charges against appellee Brickell were dismissed. The reversal was based upon a finding that an inspection made by representatives of the State Board of Pharmacy upon the premises of Medix Pharmacy (owned and operated by Brickell) in Jacksonville, was in excess of the agency’s statutory authority. The basis for this holding was that the “inspection” was made without a warrant and without the consent of appellee. Since we do not agree that the appellee’s constitutional rights were violated or that the action taken was in excess of the powers of the Board of Pharmacy, we reverse.

We cannot say that the court’s finding that Brickell did not consent to the actions taken by the board’s representatives was clearly against the preponderance of the evidence. Lester Hosto, Executive Secretary of the Arkansas State Board of Pharmacy, who was accompanied by Hugh Perkins and Woodrow Little, inspectors for the board, and Larry Martin, a drug investigator with the Division of Drug Control with the Arkansas Department of Health, visited the Medix Pharmacy on February 8 and 9, 1978, for the purpose of conducting an accountability audit. Brickell was not present when they arrived. They awaited Brickell’s arrival so he could know that the audit was going to be conducted and have the opportunity to be present while it was going on. Brickell said that when Hosto stated the purpose of the visit, he asked if they had a search warrant and received the response that the State Board of Pharmacy did not need a search warrant. Brickell answered that there was not much he could do and went to telephone his lawyer, who was out of his office for an hour or two. After the lawyer was available, Brickell went to talk to him. Brickell said that he did not acquiesce in the “search.”

We cannot reverse the trial court’s finding on the question of consent unless it is clearly against the preponderance of the evidence. State v. Osborn, 263 Ark. 554, 566 S.W. 2d 139. We cannot say that there is a preponderance of the evidence to show that Brickell’s actions were more than an acquiescence to an assertion of lawful authority under the circumstances shown to exist. Such acquiescence does not constitute consent. Hock v. State, 259 Ark. 67, 531 S.W. 2d 701. See also, U.S. v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972); U.S. v. Kramer Groc. Co., 418 F. 2d 987 (8 Cir., 1969).

The real issue in this case is the propriety of the actions of appellants’ agents without a warrant. The statute relied upon by appellee is Ark. Stat. Ann. § 82-2626 (Repl. 1976). It deals with administrative inspection warrants. The act does not prohibit inspection of books and records without warrant, pursuant to administrative subpoena, nor does it prevent entries and administrative inspections without a warrant in any situation in which a warrant is not constitutionally required. § 82-2626 (4). The act of which § 82-2626 is a part contains an express disavowal of any legislative intent to limit or restrict the investigatory, inspection, or disciplinary powers of any licensing and disciplining board. Ark. Stat. Ann. § 82-2625.1 (Repl. 1976). Consequently, § 86-2626 must be read as an act authorizing administrative inspection warrants and regulating their issuance and execution when constitutionally required, and not as a limitation on actions where a warrant is not required. In other words, a warrant is not required for inspection of premises or books and records unless it is constitutionally required. We must direct our inquiry to the effect of constitutional restraints on the actions of the representatives of the State Board of Pharmacy.

Appellee’s petition for review in the circuit court characterized the action of Hosto as an audit, which was not supported by a search warrant. The circuit court’s order from which this appeal is taken calls it an inspection. The abstracted record does not elaborate upon the particular action, but it is clear that Hosto and those accompanying him made a rather comprehensive audit of appellee’s records pertaining to prescription drugs.

The constitutional prohibitions agairni searches are contained in Amendment 4 to the Constitution of the United States and in Art. 2, § 15, of the Constitution of Arkansas. Protection is afforded only agahv-i unreasonable searches. South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976); Wickliffe v. State, 258 Ark. 544, 527 S.W. 2d 640; Milburn v. State, 260 Ark. 553, 542 S.W. 2d 490; Young v. State, 254 Ark. 72, 491 S.W. 2d 789; Thomas v. State, 262 Ark. 83, 553 S.W. 2d 41. See also, Bedell v. State, 257 Ark. 895, 521 S.W. 2d 200, cert. den., 430 U.S. 931, 97 S. Ct. 1552, 51 L. Ed. 2d 775 (1977); Wyman v. James, 400 U.S. 309, 91 S. Ct. 381, 27 L. Ed. 2d 408 (1971). This does not mean that a search without a warrant is necessarily unreasonable and there are many well recognized types of warrantless searches that do not violate these constitutional protections. See Milburn v. State, supra; Norris v. State, 259 Ark. 755, 536 S.W. 2d 298; Wickliffe v. State, supra; Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973). The basic and essential purpose of these provisions is to protect the individual against unreasonable governmental intrusions into his privacy, whenever and wherever his expectation of privacy is legitimate. U.S. v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977); South Dakota v. Opperman, supra; Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); Jones v. U.S., 357 U.S. 493, 78 S. Ct. 1253, 2 L. Ed. 2d 1514 (1958). The reasonableness of a search in any case must be decided upon the basis of the existing facts and circumstances. Moore v. State, 244 Ark. 1197, 429 S.W. 2d 122, cert. den. 393 U.S. 1063, 89 S. Ct. 714, 21 L. Ed. 2d 705 (1969); Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967); South Dakota v. Opperman, supra. One of the most important factors to be considered is the existence, extent and legitimacy of the citizen’s right to expectation of privacy under the circumstances. U.S. v. Chadwick, supra; South Dakota v. Opperman, supra. See Perez v. State, 260 Ark. 438, 541 S.W. 2d 915; Gerard v. State, 237 Ark. 287, 372 S.W. 2d 635. See also, Sanders v. State, 262 Ark. 595, 559 S.W. 2d 704; Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 94 S. Ct. 2114, 40 L. Ed. 2d 607 (1974).

Administrative inspections without a warrant were substantially restricted by decisions in Camara v. Municipal Court, supra, and See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967). In Camara, the decision was based upon the individual’s right to be secure from arbitrary governmental invasion of his right to privacy. In See, it was made quite clear that an entry on commercial premises without a warrant cannot be justified purely on the basis of the difference between private residences and such premises, when the entry is upon those portions of the premises which are not open to the public. But it was made equally clear that the holding in that case did not imply that business premises may not reasonably be subject to inspections in many more situations than private homes would be. In addition, there was a further recognition, though not in specific words, of the greatly diminished expectation of privacy in a place of business where products are marketed under state licensing programs. The public interest requires careful consideration in applying reasonableness standards, according to Camara. The importance of surprise as a crucial aspect of routine inspections of business establishments was also recognized in See, and the Camara court considered the likelihood of frustration of the governmental purpose of the “search” by obtaining a warrant an important factor. See did not consider the reach of the Fourth Amendment with reference to statutes regulating a business which is subject to close supervision and regulation in the public interest, and for which a license is required. U.S. v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972).

In a business where there is a legitimate public interest and close regulation, such as the distribution of drugs, a procedure for the issuance of a warrant prior to an administrative inspection is not constitutionally required. See U.S. v. Biswell, supra; State v. Albuquerque Publishing Company, 91 N.M. 125, 571 P. 2d 117 (1977), cert. den. 435 U.S. 956, 98 S. Ct. 1590, 55 L. Ed. 2d 808 (1978). Where close scrutiny of traffic in commodities which are subject to close governmental supervision is of central importance for a proper governmental purpose and inspection is crucial to the regulatory scheme, if the laws are to be properly enforced and inspection made effective, unannounced inspections without a warrant must be deemed reasonable official conduct. U.S. v. Biswell, supra.

An excellent summation of the circumstances under which a warrantless search will meet the test of reasonableness was made by the Supreme Court of New Mexico in State v. Albuquerque Publishing Co., supra. That court said:

*** In so doing, we hold that a non-consensual, warrantless administrative inspection of business premises can be made only when: (1) the enterprise sought to be inspected is engaged in a business pervasively regulated by state or federal government; (2) the inspection will pose only a minimal threat to justifiable expectations of privacy; (3) the warrantless inspection is a crucial part of a regulatory scheme designed to further an urgent government interest; and (4) the inspection is carefully limited as to time, place and scope.

This is not a case in which appellee had a reasonable expectation of privacy insofar as the inspection and audit of his books and records by Hosto and those accompanying him is concerned.

The right of the state in the exercise of its police powers to regulate the practice of pharmacy in the interest of the health and general welfare of the public is beyond doubt. Harvey v. Peters, 237 Ark. 687, 375 S.W. 2d 654. Thus, the interest of the public is clearly established. The necessity of regulation of drugs was emphasized in that case by quoting the preamble to Act 50 of 1891, the first act regulating the practice of pharmacy. In part, it read:

WHEREAS, In all civilized countries it has been found necessary to regulate the traffic in medicines and poisons, and to provide by law for the regulation of the delicate and responsible business of compounding and dispensing the powerful agents used in medicines and

We need not trace the history of state regulation of the dispensation and distribution of drugs in order to show the great interest of the public in a very strict supervision of that business. The creation of a board for the supervision and regulation of the business, the requirement of what is in effect a license to engage in the business (under the label of “registration”), after the board’s determination of fitness, the requirement that the board keep all registered pharmacists informed of important regulations of other agencies in the field, the vesting of power in the board to revoke or suspend licenses, and the provisions for criminal sanctions for engaging in the business without a proper license or registration are attestation to the great public interest involved. Ark. Stat. Ann. §§ 72-1002, -1004, -1004.1, -1005, -1007, -1007.1, -1011, -1011.1, -1011.3, -1011.4, -1011.7, -1011.8, -1014, -1015, -1016, -1017, -1018, -1026, -1027, -1028.1, -1028.2, -1031, -1037 (Repl. 1957); -1017.1, -1040, -1044, -1045, -1052 -1053 (Supp. 1977). The extent of state regulation in relation to the handling of narcotic drugs is a further indication that the interests of the public are great and the problem grave. See “Uniform Narcotic Drug Act” [Ark. Stat. Ann. §§ 82-1001 — 82-1023 (Repl. 1976).] Further indication of the public interest in regulation of the business and the gravity of the problem may be found in comparatively recent legislation under the general titles of “Arkansas Drug Abuse Control Act” [Ark. Stat. Ann. §§ 82-2101 — 82-2109 (Repl. 1976)] and “Uniform Controlled Substances Act” [Ark. Stat. Ann. §§ 82-2601 — 82-2638 (Repl. 1976 and Supp. 1977)]. All this legislation shows that an intense regulation of the practice of pharmacy has been undertaken by state government in the public interest. We are certainly in position to take judicial notice that abuse and misuse of drugs are serious problems in our society.

The Board of Pharmacy is charged with responsibility for enforcement of the law governing the practice of pharmacy. Ark. Stat. Ann. § 72-1033 (Repl. 1957). Pharmacists are required to keep records of all narcotic drugs received and dispensed by them and to retain the record of every transaction for a period of two years after the transaction was made. Ark. Stat. Ann. §§ 82-1001 (7), 82-1009 (3) and (5). Every prescription for narcotic drugs must be retained on file by the proprietor of the pharmacy in which it is filled for two years, so as to be readily accessible for inspection by any public officer or employee engaged in the enforcement of the Uniform Narcotic Drug Act. Records required by the act are open for inspection by state officers whose duty it is to enforce the laws of this state relating to narcotic drugs. Only a licensed pharmacist is authorized to sell and dispense narcotic drugs upon a written prescription. Ark. Stat. Ann. §§ 82-1001, -1002, -1006. Hosto, Martin and the inspectors accompanying them were entitled to inspect the records of appellee, which the law required to be kept and held for inspection. The Arkansas State Board of Pharmacy is certainly a licensing and disciplining board under the provisions of Ark. Stat. Ann. § 82-2625. No element of forcible entry is present. Appellee was engaged in marketing products under a state licensing program. The practice of pharmacy, particularly in relation to the dispensation of narcotic drugs and other such commodities is subject to close scrutiny, supervision and regulation for an appropriate governmental purpose. Inspection is clearly crucial to the regulatory scheme. Unannounced inspections without a warrant are crucial to a proper enforcement of the applicable laws through effective inspections. See U.S. v. Biswell, supra. It is significant that the scope and extent of the inspection are (and were in this case) properly limited. See U.S. v. Montanye, 493 F. 2d 682 (2 Cir., 1974).

The inspection of records in this case was not such that the prior issuance of a warrant was constitutionally required. People v. White, 259 Cal. App. 2d Supp. 936, 65 Cal. Rptr. 923 (1968). See also, Colonnade Catering Corp. v. U.S., 410 F. 2d 197 (2 Cir., 1969), reversed on ground that there had been a forcible entry, 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970); U.S. v. Montanye, supra.

We reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

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


author: Conley Byrd, Justice. George Rose Smith, Justice,

text:
    Gerald COSBY and Sue COSBY v. Dwight OLIVER
    78-209
    577 S.W. 2d 399
    Opinion delivered February 26, 1979

      /?. H. Mills, for appellants.

      No brief for appellee.
   Conley Byrd, Justice.

Appellee Dwight Oliver sued appellants Mr. & Mrs. Gerald Cosby to recover damages to his Ford pickup that occurred as a result of the alleged negligence of appellants in permitting their horses to run loose on the highway. The Trial Court sitting as a jury in rendering judgment against appellants made the following findings:

“In a civil case it is my duty to determine which way the evidence is balanced. I have no serious doubt in my mind that the horses involved were horses belonging to the defendants. There is no testimony that the horses had been out before, either with or without the knowledge of defendants. It is a question of whether the maintenance of the place in which the horses were kept was reasonable. The fences came to one end of the barn and the barn itself constituted part of the fence, and there was a walk through which was closed with this sign that had been propped up there and wired. When Mr. Oliver and Mr. Barnett got there the fence was down and it was not wired. The testimony was otherwise that it was wired up whenever Mr. Cosby saw it and whenever Mr. Cranston saw it. With sixteen (16) horses out there, I don’t believe that that kind of a jury rig is reasonable means of keeping horses in. This is a sort of jury rig thing and I just don’t think it is adequate.”

Appellee testified that he had a collision with his Ford pickup in the early morning hours about a mile and a half south of Cave Springs on Highway 112 on November 12, 1976. He saw something in the road and hit his brake but didn’t stop. He just slowed down and blew his horn. He started to pull around it hoping it would go across the road on the right hand side. He didn’t know that there were some more of them coming across the road and he did not see what he hit. When he opened his door to get out, he could hear horses running. The only one he saw was a white horse. Later he and Travis Barnett started looking for horses. They found the appellants’ horses more than a mile and a half away from the scene of the collision up by a barn. They drove the horses back into the barn and wired up a metal sign that was lying on the ground. He assumed the metal sign was used for a gate. Because there was a white horse present and they found a brown horse limping, he assumed that the limping horse was the one he hit. When he talked to Mrs. Cosby she said somebody stole some hay out there and that’s how come the fence was down.

Travis Barnett, City Marshal at Cave Springs, testified that “the horses were already at the barn when we got there and we just drove them back to the barn. There was a sign in the doorway to the barn that was laying down on the ground that had apparently been used as a gate. ” It had been wired at each end. Travis Barnett testified that he had never raised horses but he had raised cattle and tried to keep them fenced in. The fences which he had when he farmed were about like the gate the appellants had there. It was a make-shift gate such as he had devised many times in his own business. A make-shift gate like most people with livestock make or put together and use.

Rex Cranston, the owner of the farm, testified that he had rented the pasture but he used the barn for hay storage. The sign was not supposed to be used as a gate, it was just part of the fence line. The sign was fixed and was like part of the fence line since it was tacked down. The only way you could utilize the sign as a gate was to unwire it. He was out there once or twice a month and the sign had been up and okay. Prior to leasing the pasture there were about 50 head of cattle out there and the sign was always up. To get into the pasture you had to use another gate.

Appellant Gerald Cosby testified that he had looked at the fence line before he rented it and felt it was sufficient to hold horses. He got into the pasture through a wire gate east of the barn. He checked the fences and gates every day and at no time did he find the fences or gates inadequate to hold horses. He had checked the fences and gates on Thursday prior to the accident on Friday. To his knowledge no horse ever got out of the pasture outside of the one incident appellee told him about. So far as he was concerned he had no injured horses and didn’t lose any sales on account of an injured horse.

As can be seen from the foregoing resume, the proof that appellee struck appellants’ horse is somewhat speculative. Yet, if we should assume that it was appellants’ horse that appellee struck, there still is no proof that appellants were negligent in permitting their horses to run at large. Ark. Stat. Ann. § 41-2919 (Repl. 1977) provides:

“A person commits the offense of permitting livestock to run at large if, ... he knowingly permits such livestock to run at large.”

In the construction of similar statutes in Favre v. Medlock, 212 Ark. 911, 208 S.W. 2d 439 (1948), we pointed out that it is the intentional or negligent permission of the owner for his animal to run at large which subjects him to the civil and penal consequences prescribed by the statute. We there held that the fact that an animal is at large is not prima facie negligence on the part of the owner. See also Poole v. Gillison, 15 FRD 194 (E. D. Ark. 1953).

We have been unable to find any proof in the record to show that appellants were negligent in maintaining the inclosures where the horses were kept. Neither have we found any proof in the record to support the tria! court’s suggestion that the sign was only propped up. It follows that the trial court erred in refusing to direct a verdict for appellants.

Reversed and dismissed.

Harris, C.J., and George Rose Smith, J., dissent.

George Rose Smith, Justice,

dissenting. I am unable to understand the majority’s reversal of this judgment for the plaintiff. There was an abundance of substantial evidence to support the findings of the circuit court, sitting as a jury.

The majority first imply that the proof that the appellee struck the appellants’ horse is “somewhat speculative.” I really don’t see how any other conclusion could have been reached by the trial judge. We have had a state-wide stock law for 30 years. It is common knowledge that a stray horse is hardly ever seen on a public road any more, much less a herd of six or seven horses. But that is what the appellee encountered. He found a trail of fresh droppings on the road that led to the appellants’ place, where at least that many horses were free from confinement. The herd included a white horse and an injured horse, both of which corresponded to the appellee’s account of the accident. How this proof can be called “somewhat speculative” is hard to understand.

The second issue is whether there is proof that the appellants were negligent in confining the horses. The front side of their large barn formed a continuation of the fence around their horse lot. A photograph in the record shows the wide front entrance into the barn, for which no doors were provided. Instead, the appellants used a large tin beer sign which, as shown by the photograph, was not quite as wide as the opening it was used to obstruct. When the appellee and the marshal arrived, the piece of tin was down. The appellee testified positively that there was nothing on the sign to hold it up. The trial judge stated specifically that the sign was down “and it was not wired.” It is really beyond question that the herd of horses actually got out onto the highway. I am at a loss to understand how it can be said, in view of the photograph and the testimony, that there is no substantial testimony to support a finding of negligence.

Harris, C.J., joins in this dissent.


author: Conley Byrd, Justice.

text:
    FARM BUREAU MUTUAL INSURANCE COMPANY OF ARKANSAS, INC. v. Darius PARRISH, Administrator of The Estate of Kathy Lynn PARRISH, Deceased
    78-274
    577 S.W. 2d 397
    Opinion delivered February 26, 1979
    (Division I)

      Barrett, Wheatley, Smith & Deacon, for appellant.

      Frierson, Walker, Snellgrove & Laser, for appellee.
   Conley Byrd, Justice.

The trial court found that the death of Kathy Lynn Parrish from carbon monoxide asphyxiation was the result of accidental means within the meaning of a policy of life insurance issued by appellant Farm Bureau Mutual Insurance Company of Ark. Inc. which provided:

“In the event of the death of the first individual named as insured caused by automobile accident, directly and independently of any other cause, while in or upon, entering or alighting from, or through being struck by any automobile, the sum of $5,000 less any payments otherwise made hereunder on account of such injury.”

From a judgment entered for the face amount of the policy together with penalty and attorney’s fees appellant brings this appeal contending:

“I. The Court erred in finding that the death of appellee’s intestate was caused by automobile accident, directly and independently of any other cause.
II. The Court erred in finding that appellant was not entitled to credit for $1,725.53 paid under the medical payments provision of the policy prior to institution of litigation.”

The record shows that Kathy Lynn Parrish and her boy friend were found dead in the boy friend’s car parked just off a county road. Although the engine was not running, the ignition key was still in the on-position and the automobile was out of gasoline when the bodies were found. Jim Walker who operated the wrecker that removed the automobile testified that the car was on a stump or something because the gravel guard was bent. From the way the gravel guard was bent he stated that the exhaust from the car had come up through the trunk and into the car.

POINT I. To sustain its position that the trial court erred in finding that the death was caused by an automobile accident directly and independently of any other cause, appellant points out that Kathy Lynn and her boy friend intentionally parked their car, intentionally left the motor running and intentionally remained in the car. We find no merit to this contention. To give the policy the interpretation suggested by appellant would provide coverage only in those situations in which the insured was guilty of no negligence. Furthermore, in 92 A.L.R. 164 the annotator points out:

“Death by asphyxiation from inhaling carbon monoxide gas from the exhaust of a gasoline motor is generally regarded as accidental or from accidental means if the breathing of the gas was unintentional, at least where the evidence shows that some unforeseen or unexpected circumstances or element interrupted or changed the natural course of events voluntarily set in motion by the insured.”

POINT II. To sustain the action of the trial court in holding that appellant could not deduct the $1,725.53 paid out in medical benefits from the accidental death benefits, appellee relies upon Ark. Stat. Ann. § 66-4014 (Supp. 1977), which provides:

“REQUIRED FIRST PARTY COVERAGE. Every automobile liability insurance policy covering any private passegner motor vehicle issued or delivered in this State shall provide minimum medical and hospital benefits, income disability and accidental death benefits, under policy provisions and on forms approved by the Commissioner of Insurance, to the named insured and members of his family residing in the same household injured in a motor vehicle accident, to passengers injured while occupying the insured motor vehicle, and to persons other than those occupying another vehicle struck by the insured motor vehicle, without regard to fault, as follows:
(a) MEDICAL AND HOSPITAL BENEFITS. All reasonable and necessary expenses for medical, hospital, nursing, dental, surgical, ambulance, and prosthetic services incurred within twenty-four (24) months after the automobile accident, up to an aggregate of $2,000 per person and may include any non-medical remedial care and treatment rendered in accordance with a recognized religious method of healing. Expenses for hospital room charges may be limited to semi-private accommodations.
(b) INCOME DISABILITY BENEFITS. Seventy per cent (70%) of the loss of income from work during a period commencing eight (8) days after the date of the accident, and not to exceed fifty-two (52) weeks, but subject to a maximum of $140 per week. In the case of a nonincome earner, such benefits shall consist of expenses not to exceed $70.00 per week, or any fractional part thereof, which are reasonably incurred for essential services in lieu of those the injured person would have performed without income during a period commencing eight (8) days after the date of the accident, and not to exceed fifty-two (52) weeks.
(c) ACCIDENTAL DEATH BENEFITS. The sum of $5,000 to be paid to the personal representative of the insured, should injury, sickness or disease resulting from an automobile accident cause death within one (1) year from the date of the accident.”

We agree with appellee that in construing a policy provided in accordance with the statute that the insurer cannot deduct the amount of medical payments from the accidental death benefits. Nor can we find anything in Aetna Insurance Company v. Smith, 263 Ark. 849, 568 S.W. 2d 11 (1978) to support appellants’ position.

Affirmed.

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


author: Darrell Hickman, Justice.

text:
    John E. BOX, Jr. and Ruth M. BOX v. R. F. DUDECK
    78-265
    578 S.W. 2d 567
    Opinion delivered February 26, 1979
    (Division II)
    [Rehearing denied April 23, 1979.]

      Ball & Mourton, for appellants.

      Wade, McAllister, Wade & Burke, P.A., by: Rudy Moore, Jr., for appellee.
   Darrell Hickman, Justice.

John E. Box, Jr., one of the appellants, agreed in writing to sell his interest in 89 acres of land to R. F. Dudeck, appellee, for $90,000.00. The land was held in Box’s name only. Ruth M. Box, John’s wife, refused to sign the agreement. Dudeck decided to seek specific performance of the agreement, satisfied to take the land subject to Mrs. Box’s inchoate dower interest.

The unusual, but not unprecedented, thing about this case is that specific performance of a land sale agreement was ordered even though a wife refused to sign the agreement.

The Washington County Chancery Court found that Box had agreed to sell his interest, ordered specific performance, and found the value of the inchoate dower interest to be $20,826.00. Dudeck was ordered to pay the agreed price, less an abatement of the dower interest. A lien was imposed on the land for the value of the dower interest subject to three conditions: Should John E. Box, Jr. predecease his wife, Ruth, the lien would be void; if Box is alive seven years after the deed is recorded, the abated amount will be payable to Box; if Ruth relinquishes her dower interest within seven years to Dudeck, the abated amount is payable to her.

The Boxes appeal alleging two errors, the second encompassing three arguments.

First, it is argued the agreement was conditioned on the wife signing the agreement and the chancellor erred in finding otherwise.

This issue is purely a question of credibility of the witnesses. Only two people actually knew what Box agreed to — he and the real estate broker, Phyllis Enos. Dudeck never talked to the Boxes and it is undisputed that Ruth Box never $aid she would, nor did she sign the agreement.

Ms. Enos, a Fayetteville real estate broker, testified she was shown the property by John E. Box a month before the sale. On April 5, 1975, Dudeck signed an offer to buy the property for $90,000.00, $15,000.00 down, the balance to be paid over ten years. Enos took the offer to Box who, after consulting with his attorney and accountant, added some provisions. An amended offer with these conditions was prepared and on the same day both Dudeck and Box signed it.

According to Ms. Enos, she asked Box if his wife’s signature should not be obtained. Box replied it would not be necessary. She said she assumed Box was simply speaking for both of them. However, since it is appropriate to obtain a wife’s signature, she called the next day or so to see if Ruth Box had signed or would sign the agreement. She said that Box told her his wife would not sign but that he still wanted to go through with the transaction. She said she then called Dudeck who decided that he still wanted to go through with the agreement.

Mr. Box essentially denied Ms. Enos’ statement about agreeing to sell without his wife’s consent. He admits he signed the agreement and had provisions added as Ms. Enos testified. He stated the sole reason he refused to sell was because his wife would not sign the agreement.

Box testified that when Ms. Enos asked him if there would be any trouble getting the signature of Ruth Box, he said he did not think so. He said that Ms. Enos replied, “I will take care of it.” He testified that Ms. Enos did not call him in a day or so about Ruth’s signature but instead talked to his wife. He said his wife told Ms. Enos she would not sign. He flatly denied he ever told Ms. Enos he wanted to sell anyway.

Mr. Box, a contractor who holds a real estate broker’s license, admitted that in a pre-trial deposition he said Ms. Enos never asked about his wife’s signature at the time he signed the agreement. He admitted that this testimony was inconsistent with his trial testimony. Also, Box testified that he did not know that the property was held in his name only at the time he signed the agreement. He said that he and his wife had originally held the land as tenants by the entirety but as a result of some estate planning upon advice by an attorney several years before, Mrs. Box conveyed her interest to him. He said he had simply forgotten about the deed.

Mr. Dudeck testified simply that he was willing to go through with the transaction without a release of the dower interest.

Ruth Box testified that she first saw the offer and acceptance in her lawyer’s office. She essentially corroborated her husband’s statement that Ms. Enos called their home and she informed Ms. Enos she was not ready to sign the agreement. She remembered discussing with her husband the fact that a man named Dudeck wanted to buy the place for $90,000.00. She did not think it was enough. She did not recall her husband ever telling her that he had signed the agreement.

The question here is one of fact: Did John Box unconditionally agree to sell his interest in the land? He signed the agreement, adding conditions, saw the $15,000.00 check deposited by Dudeck with Ms. Enos, and, according to Ms. Enos, said he wanted to sell it regardless of his wife’s actions. Mr. Box testified to the contrary. It was this conflict that the court resolved in favor of the appellee. Where matters of credibility are concerned, findings of those in a position to observe the witnesses, (in this case, the chancellor) are given great weight. On appeal, we only reverse such a judgment if it is clearly against the preponderance of the evidence. Digby v. Digby, 263 Ark. 813, 567 S.W. 2d 290 (1978). We cannot say in this case that the finding of the court regarding the agreement was wrong.

While specific performance in such a case is unusual, it is not unprecedented. Dudeck was satisfied to proceed with the transaction without the release of the dower interest. That was an option he had. Reed v. Phillips, 191 Ark. 58, 83 S.W. 2d 554 (1935). In the alternative, he could have elected to sue for damages for failure to deliver a merchantable title. Vaughan v. Butterfield, 85 Ark. 289, 107 S.W. 993 (1908).

The second allegation of error relates to the terms of the dower interest and the abatement order. The trial court asked for briefs and requested arguments as to the value of the dower interest. The appellants argued to the trial court, and to us on appeal, that the value of the dower interest is $10,-597.44. This argument is based on an interpretation of Ark. Stat. Ann. § 50-701, et sequentes (Repl. 1971). This figure was arrived at by reducing the purchase price of $90,000.00 to one-third, or $30,000.00, which appellants contend is the value of the fee interest to which the wife’s dower interest would attach. Next, using tables in Ark. Stat. Ann. § 50-705, they determine the annuity to be 10.7792 using Mr. Box’s age of 52 years, together with the legal interest rate of 6%. This figure, multiplied by an annual income figure of $1,800.00 ($30,000.00 times 6%) produces a figure of $19,402.56. It is argued that this is the value of Mr. Box’s interest in one-third of the land that is subject to the dower interest. $19,402.56 subtracted from $30,000.00 equals $10,597.44.

The chancellor, in a well reasoned memorandum, pointed out that this argument was erroneous for two reasons: First, the dower was inchoate, not vested; second, Mr. Box’s age was used rather than his wife’s. Using the table as a reference, the court concluded that a more reasonable value of the interest would be $20,826.00.

While the value determined by the court may not be exactly precise, it was the duty of the appellants to affirmatively show that it was erroneous. Peoples Protective Life Ins. Co. v. Smith, 257 Ark. 76, 514 S.W. 2d 400 (1974). The appellants have failed to do that.

Next, it is argued that the wife’s dower interest should bear interest at the contract rate until paid under Ark. Stat. Ann. § 29-124 (Repl. 1962). This argument is based on the premise that this was a judgment and that all judgments bear interest. The appellee correctly points out that this abatement of the purchase price was not a judgment. The dower interest has not been barred or relinquished. The full amount abated is payable to Mrs. Box at any time in cash at her option.

Finally, it is argued that the court was wrong in one of the conditions it imposed on the abatement, that is, that should Mrs. Box predecease Mr. Box within the seven year period the money should be paid to Mr. Box rather than result in a reduction in the original purchase price. Although this condition was not specifically included in the chancellor’s decree, we agree with appellants. We think this omission was an oversight of the court and the order is so modified.

Affirmed as modified.

We agree. Harris, C.J., and Fogleman and Holt, JJ.

Purtle, J., dissents.


author: John I. Purtle, Justice.

text:
    Allyce KROHA v. Daniel KROHA
    78-256
    578 S.W. 2d 10
    Opinion delivered February 26, 1979
    (Division I)
    [Rehearing denied April 2, 1979.]

      Patten, Brown, Leslie & Davidson, by: Charles A. Brown, for appellant.

      Blevins & Pierce, by: James W. Stanley, for appellee.
   John I. Purtle, Justice.

Appellant was granted a divorce from appellee and cross-appellant and awarded custody of the minor child. Appellant appeals from that portion of the decree which refused to grant her one-third of the corpus of a testamentary trust of which appellee is the beneficiary. She argues she is entitled to this interest in the trust pursuant to Ark. Stat. Ann. § 34-1214 (Repl. 1962). Appellee cross appeals from the refusal of the trial court to declare Ark. Stat. Ann. § 34-1214 unconstitutional as a denial of the equal protection clause of the state and federal Constitutions.

We first discuss appellant’s claim that she is entitled to one-third of the corpus of the trust. It is noted that appellee receives a monthly allowance or income from the trust and this income was apparently considered in setting the amount of support to be paid by appellee to appellant as support of the minor child. In any event, it is clear and unequivocal that the chancellor refused to grant appellant one-third of the corpus of the trust.

Ark. Stat. Ann. § 34-1214 provides as follows:

In every final judgment for divorce from the bonds of matrimony granted to the husband, an order shall be made that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and where the divorce is granted to the wife the court shall make an order that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and the wife so granted a divorce against the husband, if she shall have actually personally resided in this State for a period of time next before the commencement of the action at least equal to the residence required to enable her to maintain an action for divorce, shall be entitled to one-third (1/3) of the husband’s personal property absolutely and one-third (1/3) of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form, and every such final order or judgment shall designate the specific property both real and personal, to which such wife is entitled; ... .

We need not cite cases to support the precedent of chancery courts awarding the wife one-third of the husband’s personal property absolutely and one-third of his real property for life. The question now before us is whether the corpus of a testamentary trust is personal property of the beneficiary of the trust.

The trust in question was established in the will of Dorothy Mae Haskell of Garland County, Arkansas, which will was admitted to probate in the Garland County Probate Court on August 12, 1974. Pertinent parts of the will are set out as follows:

III
I give, devise and bequeath all the rest of my Estate to the Trust Office of Arkansas First National Bank, Hot Springs, Arkansas, in trust, for my grand-nephew, Daniel Joseph Kroha, and direct that my said Trustee shall sell the Casa Blanca Club as soon as possible after my demise and a buyer can be found willing to pay a fair price for same. I further direct that my Trustee shall sell all other property, with the exception of the real property mentioned in paragraph two, as funds may be needed to provide for the payments hereinafter set out for my grand-nephew, Daniel Joseph Kroha.
V
I direct that my Trustee shall pay to my grand-nephew, Daniel Joseph Kroha, the sum of $200.00 per month until all funds have been disbursed. In the event that additional money is needed for any emergency, said additional amount may be paid upon the approval of the attorney, hereafter named, and one of the directors of the Arkansas First National Bank.
VI
In the event that my grand-nephew, Daniel Joseph Kroha, should predecease me, and die without living issue, then and in that event, I give, devise and bequeath all of my said Estate to . . . .

An order of the probate court dated October 14, 1974, held the trust to be a legal and valid trust and that the parties, Daniel Joseph Kroha and First National Bank, were bound by the terms of the trust. No appeal was taken from the order of the court.

By the very provisions of the trust the appellee is entitled to payments from the trust but is not entitled to the corpus of the trust at all during his lifetime unless it is exhausted by the monthly payments to the beneficiary. He cannot mortgage, sell, assign or otherwise dispose of the assets of the trust. His ' interest is paid monthly and we presume it has been used for family purposes during the marriage.

We have reviewed the cases cited by appellant and do not find in any of them where a contingent interest in an estate has been treated as subject to division pursuant to Ark. Stat. Ann. § 34-1214. We agree with appellant that a husband’s out of state realty either in fee or in remainder is subject to an award pursuant to this statute, but this is a vested interest, and thus unlike the interest involved here.

Social security benefits, military retirement pay, and similar contingent interests have been rejected as proper, items to be awarded a wife when she has been granted a divorce in Arkansas. If the trust violated the rule against perpetuities, it is possible an attack on it would result in the property being vested in the settlor’s estate. However, that was not done during the time these parties were married and if it is so decided now, it is too late for appellant to be entitled to a one-third interest because they are not married. Under the probate court order there is more to do than pay over the assets to the beneficiary. Therefore, the statute of uses does not apply.

Fenney v. Fenney, 259 Ark. 858, 537 S.W. 2d 367 (1976) has been cited by both parties. We believe Penney is analogous to the instant case. Therefore, we hold the chancellor was correct in refusing to award the wife one-third of the corpus of the trust from which appellee, at least for now, is entitled only to monthly payments.

The constitutionality of Ark. Stat. Ann. § 34-1214 is of no legal interest to cross-appellant since the court did not award appellant an interest in this property. All other property was divided by agreement. Additionally, the constitutionality of the statute was not raised in the pleadings and is not even mentioned in the decree, and there is no occasion to pass on this question.

Affirmed.

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


text:
    SEBASTIAN COUNTY ASSOCIATION FOR RETARDED CITIZENS AND INDEPENDENT LIVING, INC. v. BOARD OF ZONING ADJUSTMENT OF THE CITY OF FORT SMITH, ARKANSAS et al
    78-261
    577 S.W. 2d 394
    Opinion delivered February 26, 1979
    (Division I)

      Morton, Gitelman and Stephen M. Sharum, for appellants.

      Dailey, West, Core, Coffman & Canfield, for appellees.
   John I. Purtle, Justice.

Appellants, Sebastian County Association for Retarded Citizens and Independent Living, Inc., obtained an offer and acceptance to purchase a particular piece of property in the City of Fort Smith, Arkansas, which was zoned R-2 for single family purposes. They applied to the Planning Department of Fort Smith for permission to use the property by a married couple who wanted to keep nine moderately retarded citizens, not their natural children, in the home with them. The request was denied by the Planning Department. Appellants appealed to the Board of Zoning Adjustment of the city which affirmed the ruling by the Planning Department holding the proposal of appellants’ intended use did not qualify as a single family. Thereafter appellants filed suit in chancery court in which they sought a declaratory judgment and mandatory injunction against the Board of Zoning Adjustments and the city. A nearby property owner, Frank Posey, intervened on the side of appellees. The appellants were unable to purchase the particular property because it was sold to a third party. The chancery court action was then amended to seek the same relief as to any property located anywhere in the city where only single family purposes were permitted. The appellees filed a motion to dismiss the petition as amended.

Upon hearing the motion to dismiss, the court granted the motion without prejudice on the grounds of mootness of the issues, lack of jurisdiction and non-justiciable nature of the issues as presented.

Appellants contend on appeal that the court erred in dismissing the amended complaint on the grounds of mootness and non-justiciability.

There is no dispute about the facts in this case. Appellants’ request for waiver was denied at a time when they definitely had a legal interest in a particular piece of property through the written offer and acceptance. Apparently appellees agreed at that time that a justiciable issue was before the court. However, when appellants lost the deal to purchase the particular house, an entire new ball game commenced.

Ark. Stat. Ann. § 34-2501 (Repl. 1962) reads as follows:

Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.

Therefore, a court of chancery, within its jurisdiction, has the power to consider a declaratory judgment. We held in Jackson v. Smith, 236 Ark. 419, 366 S.W. 2d 278 (1963) that if the subject matter of the declaration is within equity jurisdiction an action may be maintained in equity for a declaratory judgment. We do not ignore Bennett v. N.A.A.C.P., 236 Ark. 750, 370 S.W. 2d 79 (1963) which was somewhat more complicated and might be considered to hold there was no legal interest held by the plaintiffs. However, the United States Supreme Court had declared similar acts unconstitutional in Virginia, and the United States District Court in Little Rock, Arkansas, had directed the plaintiffs to proceed in the state court. Further, the acts in question directly affected the plaintiffs inasmuch as they would have to register and list their names. Therefore, the plaintiffs in Bennett had an interest to protect at the time of the declaratory action.

We think proper considerations were present in Arkansas Release Guidance Foundation v. Hummell, 245 Ark. 953, 435 S.W. 2d 774 (1969), cited by both appellant and appellees, wherein we held that consideration of zoning ordinances was properly restricted to that part of the city where the zoned property was located. In Hummell we considered a class D apartment district wherein the owner of the property desired to use it for a residence for exconvicts and we held the trial court was correct in restricting the ruling to the class D zone in which the parties defendant lived. We did not disturb the trial court’s finding that the property owners living in the vicinity of the property were proper parties. The injunction in Hummell was limited to a specific address. It did not challenge an entire zone as do appellants.

McDonald v. Bowen, 250 Ark. 1049, 468 S.W. 2d 765 (1971) cited by appellants was a taxpayer’s suit and we have always recognized a taxpayer’s right to such a declaratory judgment to prevent the illegal exaction of taxes. A taxpayer definitely has standing to file suit concerning exaction of taxes. In Culp v. Scurlock, 225 Ark. 749, 284 S.W. 2d 851 (1955), also cited by appellants, the plaintiffs lived in the 300-foot zone to which the challenged statute applied. Therefore, appellants in Culp had a direct interest in the declaratory proceedings. They were being required, or had been directed by a public official, to place stamps on cigarettes against their wishes and by what they thought was an illegal requirement of the law.

We hold that the appellants did not have a legal interest to protect as reflected by the facts and circumstances of this particular case. They were not challenging a tax, a requirement that they act or refrain from acting, that they move or not move, or do or refrain from doing anything in particular. There is no evidence that they were even residents or citizens of the zone or the city. In fact appellants are corporations and, as such, do not require any residence in a physical sense. In a proper case they would, no doubt, have standing to maintain an action on behalf of the prople they represent.

We held in Andres v. First Arkansas Development Finance Corp., 230 Ark. 594, 324 S.W. 2d 97 (1959) that a declaratory judgment is not proper to decide the legal effect of laws upon contingent and uncertain or future facts which may never occur. Also, that the danger or dilemma must already exist and cannot be granted upon speculation or remote possibilities.

The chancellor dismissed the petition without prejudice; therefore, appellants may well again have standing to bring this identical action. If they do, then the court will have to make a decision based upon the then existing facts with all interested parties having an opportunity to join in the proceedings. The other interested parties are not known at this time and pure speculation would have to be used to determine their identity.

We agree with the trial court that, after appellants lost their attempt to purchase the particular property, the issue became moot and they have no interest to protect at this time. The facts as presented in the amended petition do not present a justiciable issue for determination by the court.

Affirmed.

We agree. Harris, G.J., and George Rose Smith and Byrd, JJ.


author:
John I. Purtle, Justice.
      John A. Fogleman, Justice,

text:
    Don E. GREEN v. STATE of Arkansas
    CR 78-191
    577 S.W. 2d 586
    Opinion delivered February 26, 1979
    (In Banc)
    [Rehearing denied March 26, 1979.]

      Robert L. Lowery, for appellant.

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant and three codefendants were charged with robbery of the Brockwood Exxon Service Station and Church’s Fried Chicken on 12th Street in Little Rock, Arkansas. The three codefendants pleaded guilty before the trial date of June 30, 1978. Appellant’s motion to sever the two counts of robbery because no scheme or plan would be shown by the state was denied.

The trial court granted appellant’s motion for dismissal of the charge relating to the Exxon Station but permitted the charge relating to Church’s Fried Chicken to go to the jury.

Upon completion of the state’s case appellant moved for a directed verdict relating to the Church’s Fried Chicken incident. The motion was denied. The appellant did not introduce any testimony and rested after the motion was denied. The jury found appellant guilty and fixed his punishment at 6 years’ imprisonment.

On appeal two points are argued: (1) The court should have granted a severance of the charges; (2) There was insufficient evidence to support the conviction.

The only evidence presented by a codefendant was that they planned to rob the Exxon Station and when it produced only $5 they subsequently decided to rob Church’s Fried Chicken. The testimony relating to the robbery of the Exxon Station by David Zimmerman was that he saw four people in a car at the Exxon Station. He could not identify any of them nor could he tell if the people were black or white. Mr. Baker, the victim at the station, saw two people with stockings over their heads. He didn’t see the other two people and could not identify any of them or the vehicle they were in. Appellant did not testify nor did he give a statement relating to the Exxon Station robbery. Appellant’s statement to the officers with reference to the Church’s Fried Chicken robbery was that he asked the codefendants to take him home. “I asked them to take me home, and on the way home I asked them to stop by Church’s Chicken, and they stopped at 12th and Fair Park. I bought a box of chicken and a coke. We parked on the side of the business. I went back to the car. They had a shotgun and a rifle out and they said that they were going to rob the place. I told them to take me home first. They said, ‘No. As long as we are here, we just as well do it.’ They said I wouldn’t have to get out of the car. I stayed in the car and Billy stayed in the car and got under the steering wheel.”

Was the evidence sufficient to sustain a conviction of aggravated robbery of Church’s Fried Chicken? Again the codefendant testified that the four of them decided to go rob the Exxon Station and did. They planned to split the money four ways. He also stated there never was a plan to rob another place until after the waterhaul at the Exxon Station. He testified he had pleaded guilty to the robberies of both places and had been sentenced. Other evidence tended to show the robbery occurred but none of it identified the appellant. The only other evidence was the statement of appellant wherein he steadfastly denied any part of the Church’s Fried Chicken robbery. The only fact possibly connecting him with it was that he was there. In his statement appellant insisted he requested the codefendants to drive him home after he found out they planned the second robbery.

The question of evidence necessary to corroborate an accomplice’s testimony to the extent of allowing a case to be submitted to a jury is necessarily governed by the facts and circumstances of each case as it is presented. Evidence which is merely suspicious in nature is insufficient, or if it is as consistent with innocence as guilt, it is not enough to submit the question of the defendant’s guilt to the jury. O’Neal v. State, 192 Ark. 1178, 96 S.W. 2d 780 (1936); Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304 (1943). The corroborating evidence must tend to connect the defendant to the commission of the offense. It is not sufficient to show the offense was committed and the circumstances thereof. Pitts v. State, 247 Ark. 434, 446 S.W. 2d 222 (1969). We stated in Dunn & Whisenhunt v. State, 256 Ark. 508, 508 S.W. 2d 555 (1974):

Aside from the testimony of the accomplice Roberts, there is no other testimony at all linking the appellants with the robbery of Mr. Corley. The fact that Dunn & Whisenhunt were seen riding in the same automobile with Roberts, as related under the facts and circumstances of this case, is not sufficient corroboration to sustain their conviction.

We make the same statement regarding the facts and circumstances in this case. Appellant had the additional burden of having been exposed to the robbery evidence for which he was acquitted. We still adhere to the principle that a man is innocent until proven guilty. The mere presence of a person at the scene of a crime is not proof of his guilt, otherwise the customers or employees at Church’s Fried Chicken might be in appellant’s place.

Under the circumstances of this case, we are unable to find any corroborating evidence to support the codefendant’s testimony.

This disposition makes the severance issue moot.

Reversed and dismissed.

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

John A. Fogleman, Justice,

dissenting. I find the evidence corroborating the testimony of the accomplice sufficient to present a jury question. Samuel T. Bernard, an accomplice in the two robberies, testified that: he and Donald Green were together when they ran into Frank Turner and Billy Scott; they went to a North Little Rock club and Frank asked if they wanted to make some money, and said he knew the place they could knock off; all agreed and got in Bernard’s car; they were to split the money four ways and go to Helena until everything blew over; Green and Bernard served as lookouts while Frank and Billy went to the Exxon station at 65th and Geyer Springs, taking a sawed-off shotgun and a rifle; when Frank and Billy returned, they said they didn’t get much; all of them went to Church’s Chicken Place and backed into an alley; Frank told Don to go buy something and see how much money was in the cash register; Don went and bought something and returned to the car and sat down; he said something Bernard did not hear and Frank and Bernard got out of the car, one taking the rifle and the other the shotgun; Bernard went to the back of the building and Frank to the other side; Bernard said that either Green or Billy got under the steering wheel; he heard a shotgun blast as soon as Frank went arov d the building; after the robbery, he and Frank jumped into the car; Green was driving, but not in a manner to suit Bernard, so he switched places with Green; they let Frank and Billy (who were talking about “hitting something else up”) out of the car at 21st and Elm Streets.

Appellant made a statement which was introduced in evidence. He said that he was with the others at the club, that he asked them to stop at Church’s Chicken at 12th & Fair Park, where they parked at the side of the building and that he bought a box of chicken and a coke, after which he returned to the car and “they” had a :,tgun and rifle out and said “they” were going to rob the place. He stated that he asked “them” to take him home first, but “they” refused, saying that as long as they were there, “they” might as well do it. He said that he stayed in the car and that Billy got under the steering wheel and that, after Bernard and Frank came running back to the car, “they” took him straight home.

Charles Wesley Jones, an employee of Church’s Chicken, testified that after he had waited on a customer, a man came in wielding a gun and demanding that money be put in a bag. Jones slipped as he turned and the man fired a shot and ran.

It was only necessary that the evidence go beyond a showing that the crime was committed and the circumstances thereof and that it tend in some degree to connect the defendant with the crime. Anderson v. State, 256 Ark. 912, 511 S.W. 2d 151; Olles v. State, 260 Ark. 571, 542 S.W. 2d 755. The evidence may be circumstantial. Olles v. State, supra. It may be slight and not altogether satisfactory and convincing, if it is substantial. Olles v. State, supra; Klimas v. State, 259 Ark. 301, 534 S.W. 2d 202. It must be directed toward proving a fact in issue and not merely toward discrediting a witness or corroborating his testimony. Olles v. State, supra. But if the accomplice is corroborated as to particular material facts, the jury may infer that he spoke the truth as to all. Olles v. State, supra. The acts, conduct and declarations of the accused before or after the crime may furnish the necessary corroboration. Olles v. State, supra.

In Ahart v. State, 200 Ark. 1082, 143 S.W. 2d 23, it was held that the sufficiency of the corroborating evidence is always for the jury. Although this statement, taken out of context, appears to be an overstatement, it is significant in light of the evidence there which tended to corroborate the testimony of the accomplice in a cattle theft. The mother of the accomplice testified that the defendant came to her house with her son between 11:00 and 12:00 the night before the stolen cattle were found at her house and spent the night there. Another witness admitted having made a statement to the sheriff and deputy prosecuting attorney in which he had said that the defendant and the accomplice asked the witness to haul some cattle for him, but he refused.

The corroboration by appellant’s own statement in the case at hand is at least as strong as that in Ahart. Appellant was present when the crime was committed. He made a purchase which, according to the accomplice, was a part of the plan. As soon as he did so, the robbery took place. Knowing that it was going to take place, he went and took his seat in the getaway car. Those circumstances are much more consistent with guilt than innocence.

Comparison of the position of the employees of the place robbed with that of appellant will not stand under close examination. None of the employees came to the place or left it with the robbers. None of them sat in the “getaway” car knowing that a robbery was taking place and the companions with whom he came to the scene were doing it. None of them could have been expected to disassociate himself from the criminal enterprise. But if appellant were not part of it, and wanted no part of it, it would only be reasonable to expect that he would. The idea that an innocent person would wait for a robbery to be carried out so he could get a ride home with the robbers approaches ridiculosity.

The corroborating evidence here is much more incriminating than that in Shipp v. State, 241 Ark. 120, 406 S.W. 2d 361, where the question of corroboration was disposed of without difficulty, viz:

Thus the evidence shows that the appellant admitted to Sheriff Berryman that the particular rain suit in evidence was the one he bought; but he claimed in his conversation with the Sheriff that he bought the rain suit for use in his business. When the appellant admitted the purchase of the identical rain suit used in the robbery, certainly the appellant admitted enough to corroborate the accomplice. The appellant seeks to leave the impression that Goolsby [the accomplice] stole the rain suit from him; but that was a fact question to go to the jury. Without the testimony of Sheriff Berryman the corroboration in this case would be like that in Scott v. State, 63 Ark. 310, 38 S.W. 339; or Cook v. State, 75 Ark. 540, 87 S.W. 1176. But with the testimony of Sheriff Berryman, the evidence of corroboration went to the particular and identical rain suit introduced in evidence, and there was evidence from which the jury could have found — and evidently did find — that appellant bought the particular rain suit which Goolsby wore at the time of the robbery; and this certainly corroborates Goolsby’s testimony to the effect that the appellant suggested and planned the robbery.
The words of our opinion in Dyas v. State, 260 Ark. 303, 539 S.W. 2d 251, are applicable here. We said:
We have held in a somewhat similar case in which the defendant was accused of murder during the commission of a robbery that the testimony of the defendant in which he admitted that he was present at the crime, but denied participation in the homicide, was itself sufficient corroboration to satisfy the statute and support a conviction. Ark. Stat. Ann. § 43-2116. Ford v. State, 205 Ark. 706, 170 S.W. 2d 671. While corroborating evidence must do more than raise a suspicion of defendant’s guilt, it need not be direct, but may be circumstantial so long as it is substantial and tends to connect the defendant with commission of the offense. Jones v. State, 254 Ark. 769, 496 S.W. 2d 423. Presence of an accused in proximity to the crime, opportunity, association with persons involved in a manner suggesting joint participation and possession of instruments used in the commission of the offense are relevant factors in determining the sufficiency of the corroboration by circumstantial evidence. Jackson v. State, 256 Ark. 406, 507 S.W. 2d 705.

It might well be that were we jurors, we would say that the state had not proven appellant’s guilt beyond a reasonable doubt. We are not and should not act as such. We cannot, and should not, say that a reasonable juror could not conclude that the statement of Green tended to connect him with the crime.

I am authorized to state that the Chief Justice and Mr. Justice Byrd join in this opinion.