author: J. Fred Jones, Justice.

text:
    Bonnie Black WALKER and Janet Elaine WALKER v. Betty Walker YARBROUGH, Administratrix of the Estate of A. C. (Jack) Walker, Deceased
    74-141
    516 S.W. 2d 390
    Opinion delivered December 2, 1974

      Dan McCraw, Ike Allen Laws Jr., P.A. and W. H. Schulze, for appellants.

      Williams & Gardner, for appellee.
   J. Fred Jones, Justice.

A. C. (Jack) Walker died on November 12, 1969, and Betty Walker Yarbrough was appointed administratrix of his estate in compliance with her petition alleging that she was the only daughter and sole surviving heir of Mr. Walker. The appellant, as Bonnie Black Walker, filed a petition in the probate court alleging that she was the widow of Mr. Walker and that her minor child, Janet Elaine, was a daughter and heir of Mr. Walker and as such was entitled to a one-half interest in his estate after the expenses of administration, and her own dower interest were set aside. The appellant prayed that her dower interest in the property of Mr. Walker be set aside and awarded to her and that their daughter, Janet Elaine, be awarded her one-half interest in the remainder of Mr. Walker’s estate. Bonnie’s petition was based on an alleged common-law marriage. The probate judge found that Bonnie failed to establish a valid common-law marriage with Mr Walker. He dismissed her petition and decreed that Betty Walker Yarbrough was the sole surviving heir of Mr. Walker and was entitled to his estate.

On appeal to this court Bonnie and Janet Elaine rely on two points for reversal: First, they contend that the chancellor erred in finding that A. C. (Jack) Walker and Bonnie Black Walker were not common-law husband and wife and, second, they contend that there was substantial evidence Janet Elaine was the daughter of A. C. (Jack) Walker and that he recognized her as such. We do not reach appellants’ second point because we are of the opinion the chancellor was correct in finding that A. C. (Jack) Walker and Bonnie Black Walker were not common-law husband and wife.

Bonnie’s petition, insofar as the child is concerned, is based on Ark. Stat. Ann. § 61-141 (b) (Repl. 1971) which reads as follows:

“If a man have a child or children by a woman, and afterward shall intermarry with her, and shall recognize such child or children to be his, such child or children shall be deemed and considered as legitimate.”

It is conceded by all parties concerned that Mr. Walker and Bonnie were never married in a civil or religious ceremonial marriage and apparently the parties recognize that before Bonnie or her child, Janet Elaine, would be entitled to share in Mr. Walker’s estate, it would be necessary to prove that Mr. Walker had intermarried with Bonnie.

The evidence is to the effect that Mr. Walker was approximately 65 and Bonnie was approximately 34 years of age when they met in Hot Springs in 1958 or 1959. Mr. Walker owned farmland with a house thereon near Russellville and also maintained a house trailer at different locations in Hot Springs. Bonnie owned her home in Hot Springs and she and Mr. Walker entered into an illicit relationship and periodic illegal cohabitation in Hot Springs and on his farm near Russellville, and the relationship continued intermittently until about 1967.

The child Janet Elaine was born to Bonnie on August 28, 1963. There is considerable conflicting evidence directed to the question of whether Mr. Walker was the father of the child and to his acknowledgment that he was the father of the child as well as to his acts and intentions concerning her welfare. We find it unnecessary to discuss this evidence because this case turns on the question of whether Mr. Walker and Bonnie ever married. Common-law marriages, of course, are not permitted in Arkansas and the question narrows down to whether or not a marriage was contracted between the parties outside the state of Arkansas which would be recognized in this state under Ark. Stat. Ann. § 55-110 (Repl. 1971) which reads as follows:

“All marriages contracted without this State, which would be valid by the laws of the State or country in which the same were consummated, and the parties then actually resided, shall be valid in all the courts in this State.”

The evidence on this point is to the effect that in 1966 Mr. Walker took Bonnie and her daughter on a trip to California where they spent four or five days with relatives in that state and returned to Arkansas through the state of Colorado where they also spent five or six days visiting with Bonnie’s relatives in that state. The evidence is also to the effect that Mr. Bob Chandler had lived with Mr. Walker in his home near Russellville and they had become quite good friends. In 1966 Mr. Chandler was in the automobile business at De Queen, Arkansas, and Mr. Walker visited with him on different occasions. Chandler testified that Mr. Walker brought Bonnie and the child to De Queen in 1966. He said he knew that Bonnie and Walker were not married and he mentioned that fact to Mr. Walker. He said Mr. Walker first told him that he and Bonnie had married in Old Mexico, but that he then inquired about the marriage laws in Oklahoma as well as other states and he directed Mr. Walker to consult an attorney in De Queen.

The evidence is to the effect that prior to making the trip to California, Mr. Walker and Bonnie Mae Hawthorn made application in Sevier County for a marriage license and license was issued on May 9, 1966. Bonnie said Mr. Walker carried the marriage license with them on their trip to California and surrendered the license unused upon their return to Arkansas.

The appellant argues that she and Mr. Walker succeeded in contracting a common-law marriage, primarily in the state of Colorado which recognizes common-law marriages, and that the marriage so contracted should be recognized in Arkansas. We are of the opinion that the evidence falls far short of proving the consummation of a marriage contract entered into in the state of Colorado or any other state.

The evidence in this case is as consistent with concerted effort and intention to avoid a marriage contract as it is in ent ring into and consummating one. According to Bonnie Mae’s own testimony, she and Mr. Walker simply entered into an illicit relationship at Hot Springs, Arkansas, in about 1959 and continued that relationship at intervals for about ten years. She said that in 1967 she refused to go to Russellville with Walker and excerpts from her testimony are as follows:

“Q. At that time you refused to come to Russellville with him did you not?
A. Í had been working on my house at Alpine. Yes, sir, I did. I told him he could just take me back to. Alpine and he could go his way which was up at Russellville to Betty or to Mrs. Edna Walker and Myra. And then in uh - September of ’67 I went to work. I went to work at the Ouachita Hospital which that means 1 was not staying up at Russellville. I was staying then in Hot Springs but Jack was still in and out with me at my house on Alpine, 116 */2.
* * *
Maybe a week or two weeks he’d be gone. And then he would be back. But as far as living with him, I considered myself living with him even if he was in and out because that was his way of doing things.”

Bonnie said she and the child went on a trip to California and back through Colorado with Mr. Walker. She said she had been with him to El Paso, Texas, and Old Mexico. She said they first visited Walker’s niece, Imajean Carney, in California. She said they occupied the same room and bed in a guesthouse at Mrs. Carney’s home and told Mrs. Carney they were married. On this point Bonnie testified as follows:

“Q. Now did you represent — did you tell Mr. and Mrs. Carney that you were married?
A. Yes, sir.
Q. How were you introduced when you were in California?
A. Well, I don’t really remember how Jack put it, but he was always saying I was his nurse, and his wife, and just everything. And I was. Even a painter, a plumber, 1 don’t know what else. I’ve even helped him mow the grass.
Q. Did Mrs. Carney introduce you and Mr. Walker to any of her friends out there?
A. Her friends?
Q. Yes.
A. Oh, she had a neighbor, but I couldn’t remember the neighbor’s name that came over that lived close to her. She did but I couldn’t.
Q. Do you know how she introduced you?
A. I don’t remember her words, no, sir.”

Bonnie also said they spent one night in a motel in California and also visited a nudist colony.

“Q. Will you tell us, please, what was said at the nudist colony concerning your marriage?
A. Well, Jack — he asked Jack if that was his wife and he said yes. And Jack had to sign the register. He signed it Bonnie Black, Janet and Jack Walker. Maybe he said A. C. Walker. I don’t know. We got the little card, Bonnie and Jack Walker, I believe. Three day visit or something like that.”

Bonnie said they also visited with Russell Cannon in California. She said they occupied the same bedroom in the Cannon home and told Cannon they were married.

“Q. Did you all stay in the same room at Russell Cannon’s house?
A. Right.
Q. Did you all represent to Russell Cannon that you were married?
A. Yes.
Q. Did Russell Cannon introduce you as man and wife?
A. I can’t recall. We were at his shop almost every day but I don’t know if anybody come in.
Q. And you all had Janet with you at the time?
A. Janet was with me.
Q. Then after you left Russell Cannon’s house where did you go?
A. Oh, we went to uh — my aunt’s, Cheyenne Wells. We stopped somewhere overnight. I don’t just remember, in Arizona I believe. But I don’t know where it was, but we did s,'op, make one stop between California and my aunt’s. And my aunt was in the hospital and we went to my cousin’s in Arapaho, Colorado, and she lives sort of out in the country, and she had a place in town which town is a little wide spot in the road. And Jack and I and Janet stayed at her house in town. And they were out on the farm.
Q. This is Mrs. Irwin, is that correct?
A. Right, Mary Francis.
Q. Did you and Jack tell Mr. and Mrs. Irwin that you were married?
A. Yes, sir.
Q. Did you all live together at her house in town?
A. Yes, sir.
Q. With Janet?
A. With Janet.
Q. And you stayed there I believe almost a week, is that right ?
A. Well could be. I don’t remember just how many days.
Q. Did your cousin introduce you as husband and wife to her friends there in Arapaho?
A. Yes, sir.
Q. And Mrs. Walker, you and Jack Walker actually never went through a marriage ceremony, did you?
A. We never said I do in front of Justice of the Peace or minister but other than that we went through blood testk and all of that. Got the license and everything.
Q. All right, now I believe that one time you all went to Mexico for the purpose of getting married, is that correct?
A. Right.
Q. Would you tell us what happened on that time?
A. Oh, we went to Mrs. Douglas’s in El Paso and she went with us over into Mexico with the —
Q. Did you do anything toward completing the marriage?
A. Well we had our blood tested again in El Paso, Texas and I was with Jack except I wasn’t with him. Mrs. Douglas — I went over with him but I never did —Jack never did want me around him when he was talking about business with anyone and he went in several places, and what they talked about, I just couldn’t say. I presume I know what they went in there for to talk about but I wasn’t with him.
Q. In any event you went across the river into Mexico but you did not complete the marriage there as far as the legal formalities?
A. No, sir.” (Emphasis added).
On cross-examination Bonnie testified in part as follows:
“Q, When do you say you and Jack entered into a common-law marriage?
A. Well I would say when we first started living together and having sexual intercourse.
Q. In Arkansas, Hot Springs and Russellville?
A. Right.
Q. All right, and that’s when you are.telling the court it occurred?
A. Well if I understand your question right.”

On cross-examination Bonnie testified that the trip to El Paso, when they visited Mrs. Douglas, was in December, 1966, after their trip to California.

Mr. Russell Cannon testified in part as follows:
“Q. You’ve heard Mrs. Black's testimony that she and Jack and Janet visited in your home in California?
A. Yes, sir.
Q. Sometime in the summer of 1966?
A. Yes, sir.
Q. Do you recall that visit ?
A. Yes, sir.
Q. Mr. Cannon, do you recall anyone introducing Jack and Bonnie as husband and wife?
A. No, sir.
Q. Do you remember him referring to her as his wife?
A. No, sir.
Q. Do you remember anyone saying anything about her being his wife in his presence?
A. No, sir.
Q. Did you introduce them to any of your friends?
A. Did I introduce them to any of my friends?
Q. Yes.
A. No, sir, I don’t think so.
Q. Do you remember how long they were there?
A. Probably four or five days, six days.
Q. What were the sleeping arrangements while they were there?
A. Well Bonnie and this baby slept in my wife’s bedroom, and I slept with my uncle, and my wife slept in the daybed.
Q. You mean you slept with Jack Walker?
A. Yeah.
Q. He your uncle?
A. Yeah.
Q. This was the sleeping arrangements when you were in California?
A. Yes, sir.
Q. Was that the only time they were at your house?
A. Yes, sir.
* # *
Q. Did you ever talk with him about his relationship with Bonnie Black and Janet? Other than —
A. Other than just asking who she was and he said she was his nurse. He couldn’t live alone. Had sugar diabetes and he’d pass out.”

Mrs. Irwin testified on interrogatories that she and Bonnie are first cousins; that Bonnie and Walker spent three or four days in her home in Colorado in 1966. She said Bonnie told her they were married but that Mr. Walker did not. She said they occupied the same bedroom while there and that she introduced them to Guy Cuttler as husband and wife.

Several deeds and mortgages executed by Walker as well as Bonnie were introduced into evidence and they were separately signed by Walker as well as Bonnie as single and unmarried persons. Bonnie retained her name as “Black” on her Social Security identification. The child’s birth certificate recited her name as “Black,” and this was never changed.

The appellant cites Darling v. Dent, 82 Ark. 76, 100 S.W. 747, and Stilley v. Stilley, 219 Ark. 813, 244 S.W.2d 958, as precedent for recognizing out of state common-law marriages as legal marriages in Arkansas. These cases are readily distinguishable from the case at bar. In Darling there was uncon-troverted testimony that Mr. Darling and Mrs. Williams went to Texas with the intent of obtaining a divorce for Mrs. Williams and getting married. Mr. Williams died and Mrs. Williams described an actual marriage ceremony in Texas followed by continuous cohabitation as husband and wife for about eight months in Texas, followed by about eleven years in Arkansas until Darling’s death.

In Stilley, supra, the parties were ceremoniously married in Arkansas and went to Kansas where their five children were born. Mrs. Stilley obtained a divorce in Kansas and was awarded the custody of the children and child support. She returned to Arkansas and by amended complaint in chancery court alleged that she was under age at the time of the marriage and prayed that the marriage be canceled as absolutely void and of no effect. We held, in effect, that Mrs. Stilley had ratified the Arkansas marriage, even if it were void, by living with Mr. Stilley as husband and wife for nine years in Kansas (a common-law marriage state) and bearing five children and obtaining a divorce in which the decree recited that they were married.

The appellant also relies on the Colorado case of Taylor v. Taylor, 10 Colo. App. 303, 50 P. 1049, as setting out the requirements for a valid common-law marriage in that state. The Taylor case was also relied on in the Nebraska case of In Re Binger’s Estate, 63 N.W.2d 784. The pertinent facts as well as the statutory law in that case were almost on all fours with those in the case at bar. In Binger’s Estate an invalid marriage was performed in Missouri and a Colorado common-law marriage was relied on and in issue. In that case the Nebraska Court said:

“ [P]laintiff argued that after her legal impediment had been removed, there was a common-law marriage which we should recognize by virtue of the law and decisions of Colorado, concededly a common-law state.
That contention is predicated upon section 42-117, R.R.S.1943, which provides: ‘All marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, shall be valid in all courts and places in this state.’ The question is then whether or not under the circumstances of this case there was any valid common-law marriage in Colorado, which this state should recognize. We conclude that there was not.
Plaintiff claims that there was a common-law marriage in Colorado because upon three pleasure trips respectively, one in October 1947, one in June 1950, and one in September 1951, she and decedent twice attended conventions and once visited relatives in Colorado for 3 or 4 days each trip. On such occasions they either registered at a named motel as husband and wife, or stayed with relatives, where they slept in the same bed, cohabited, and were introduced to or by friends and relatives as husband and wife, after which they returned to their home in Weeping Water. No claim is made that they ever actually resided or had a domicile in Colorado or in any other state except Nebraska. There is no evidence that any of such trips to Colorado were made for the purpose of changing their domicile or residence to that jurisdiction or contracting a common-law marriage while they were in that state, or that while there any agreement was ever made by them to become husband and wife, or that they ever thought that such was necessary to give their marriage any validity.”

In Binger’s Estate, supra, the Nebraska Court cites and comments on several decisions from other states and in reference to the Colorado cases, said:

“Plaintiff relies upon the above cases, but they are all distinguishable. 7’he parties therein all lived in and were bona fide residents of Colorado where as such they, in good faith, intending to be married, continuously cohabited, and held themselves out as husband and wife in that state for long periods of time. Here the parties, who were at all times bona fide residents of this state where common-law marriage is invalid, simply took short pleasure trips across the state line without ever intending to contract or contracting a common-law marriage in Colorado as required by its laws.”

We approve the language and adopt the reasoning expressed by the Washington Supreme Court as quoted by the Nebraska Court in Binger’s Estate as follows:

“In State ex rel. Smith v. Superior Court, 23 Wash.2d 357, 161 P.2d 188, 192, the court said:‘We concur in the view of the trial court that where parties cohabit illicitly in the state of their residence and who happen to temporarily sojourn — only a few days in the case at bar — in a state where common law marriage is recognized, even if during those few days they hold themselves out as man and wife, those parties cannot by that conduct alone become legally man ard wife.
‘Parties who live for years in illicit relationship in a state in which they were domiciled will not find themselves married to each other if they happen to sojourn for a short time and hold themselves out as man and wife in a state where common law marriage is recognized.’ ”

There is no evidence in the record that Bonnie and Walker ever contracted a marriage without this state, within the meaning of Ark. Stat. Ann. § 55-110, supra.

The judgment is affirmed.

Byrd, J., concurs.

      Bonnie’s maiden name was “Black," she had married a Mr. Hawthorn and upon divorce from him she reassumed her maiden name.


source: Caselaw Access Project

author: J. Fred Jones, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    R. H. HORTON et al v. City of PARAGOULD, Arkansas et al
    74-162
    516 S.W. 2d 370
    Opinion delivered December 2, 1974

      Rhine & Rhine, for appellants.

      Cathey, Brown, Goodwin & Hamilton, for appellees.
   J. Fred Jones, Justice.

This is an appeal from a circuit court order overruling a demurrer and dismissing parts of a cross-complaint or counterclaim.

The appellee-plaintiffs as Mayor and city councilmen of the City of Paragould, together with appellee-plaintiffs Harris and Smith as newly elected water and sewer commissioners, filed suit in circuit court against the appellant-defendants as individuals and as water and sewer commissioners, and as members of a class of property owners in Water and Sewer Improvement District No. 3 of the City of Paragould.

The ten page complaint traced the legislative and ordained history of Improvement District No. 3 and alleged that under the provisions of the state law and municipal ordinances, Improvement District No. 3 had fulfilled the purpose of its creation and that by operation of law the ownership of the water and sewer system and its facilities had reverted to the citizens of Paragould, to be operated under the supervision and control of the governing body of the City of Paragould. The complaint then alleged that the defendant-commissioners had refused to recognize Harris and Smith as newly elected members of the commission; that they had neglected and refused to account to the City of Paragould, through its Mayor and city council, as to any of the official acts of the commission pertaining to the finances and operation of the water and sewer system of the city; had failed to keep accurate records of business transactions and had in fact usurped the offices of Harris and Smith, and had refused to permit the city council to inspect or copy water and sewer records.

The amended complaint then prayed for a declaratory judgment determining the ownership and right to manage and control the water and sewer system of the City of Paragould, and for an order directing the defendant-appellants Keeton and Gardner to cease the usurpation of the offices rightly belonging to Harris and Smith; for a mandatory injunction requiring the defendants to make available to the plaintiffs and the citizens of Paragould, access to the records of the water and sewer commission, and requiring them to comply with ordinances of the City of Paragould, and to render an accounting to the City of Paragould for the receipts and disbursements of funds passing through their hands as such commissioners, and to make certain reports to the city council.

The appellant-defendants filed a general demurrer to the complaint alleging that it did not state facts sufficient to constitute a cause of action and praying that the complaint be dismissed. The appellants then filed a 50 page brief in support of their demurrer and it is included in the record on this appeal. The appellee-plaintiffs made request for admissions and in response thereto, the appellant-defendants refused to admit or deny any of the requests made by the plaintiff-appellees until after their general demurrer was acted on by the trial court.

The appellant-defendants then filed an answer and cross-complaint in which they, in effect, denied each material allegation in the complaint. The defendant-appellants alleged in subsections (a) and (b) of Section VIII of what they termed a “Taxpayer's Cross-Complaint Against the Plaintiffs” that the city council had passed an ordinance in which a provision provided that the operation of the water works and sewer system and collection of revenues therefrom, should be under the control of the water and sewer system “heretofore established and presently functioning in the City. ” They then alleged that the board, so referred to in the ordinance, was the same board as the named defendants; that the plaintiffs were estopped to challenge the authority of said board because of their contractual obligations set out in the ordinance, and that the Acts and ordinances relied on by the appellee-plaintiffs were unconstitutional and void.

In subsections (c) through (k) the cross-complaint then alleged various acts amounting to misfeasance and non-feasance in office by the Mayor and city council in connection with many collateral and unrelated matters and in connection with many collateral and unrelated matters and in connection with the employment of special counsel rather than using the services of the city attorney in procuring the passage of unconstitutional legislation and prosecuting frivolous lawsuits, some of which were against the directors of Improvement District No. 3. The appellants also alleged in these subsections that the Mayor was receiving salary in excess of constitutional limit, and they prayed personal judgments for reimbursement and for injunctive relief.

As a separate item in response to appellees’ motion to strike the above subsections of the cross-complaint, the appellant alleged conflicts of interest between the appel-lees and their special counsel and moved for a show cause order against the attorneys for violation of the canons of professional ethics.

The order appealed from in this case recites as follows:

“On this 23rd day of April, 1974, court being in session, there came on to be heard the defendants’demurrer, the plaintiffs’ motion to strike defendants’ demurrer, defendants’ motion to dismiss request for admissions, plaintiffs’ motion to strike portions of defendants’ counterclaim cross-complaint, and defendants’ motion to show cause why Canons of Professional Ethics are not being violated, plaintiffs appearing by and through their attorneys, Cathey, Brown, Goodwin and Hamilton, and defendants appearing by their attorneys, Rhine and Rhine. The court, having reviewed pleadings, the motions with exhibits attached thereto, having heard statements of counsel and being fully advised in the premises, does find and order that:
1. Defendants’ demurrer should be and hereby is overruled and denied.
2. Subparagraphs c, d, e, f, g, h, i, j and k of paragraph VÍÍÍ of the defendants' answer and counterclaim should be and they hereby are dismissed without prejudice to the rights of the defendants or any of them to file suit in a separate case concerning the allegations contained therein in a court of competent jurisdiction.
3. The defendants’ motion to show cause why Canons of Professional Ethics are not being violated should be and it hereby is dismissed as not being within the competent jurisdiction of this court in this proceeding.
4. The defendants should be and they hereby are granted twenty days from this date within which to file further responsive pleading or further proceeding in this matter.
5. To the actions and orders of this court defendants do except and object, which exceptions and objections are hereby noted of record, and the defendants did note their intention to appeal the court’s ruling to the Supreme Court of the State of Arkansas.
IT IS SO ORDERED.”

Upon appeal to this court the appellants set out the points they rely on for reversal as follows:

“The lower court erred when it overruled appellants’ demurrer to the complaint filed by the appellees which complaint prayed for a declaratory judgment and information in the nature of quo warranto and other relief in an attempt to enforce City'of Paragould Ordinance 904, an ordinance to create a municipal water and sewer commission to take over the ownership, operation, and control of the water facilities of the City of Paragould now owned and controlled by Water Improvement District No. 3 of Paragould, Arkansas, with the authority to ‘sell any property, real or personal, not necessary to be used in the operation of the facility within its supervision.’
(A) The City Council of Paragould, Arkansas, had no legislative powers expressly conferred or fairly implied to pass Ordinance 904 and Ordinance 904 is a void ordinance.
(B) Section VII of Ordinance 904 violates the Constitution of the State of Arkansas and the Fifth Amendment of the Constitution of the United States.
(C) Ordinance 904 is in direct conflict with Special Act 487 of 1923 which is still in full force and effect.
The lower court erred when it dismissed the defendants’ (appellants’) ‘cross-complaint’ and referred to the ‘cross-complaint’ as a ‘counterclaim.’
The lower court erred when it dismissed without hearing defendants’ motion ‘to show cause why the canons of professional ethics are not being violated by the appellees’ attorney.’

We are unable to consider the points relied on by the appellants because this is an appeal from an interlocutory order and not from a final order or judgment disposing of the issues.

As early as 1915 in the case of Davis v. Receivers St. L. & S. F. Rd. Co.. 117 Ark. 393, 174 S.W. 1196, the defendant demurred to a complaint and the court sustained the demurrer. In the case at bar, as was recited in Davis, “no judgment was rendered dismissing the complaint of the plaintiffs and not even a judgment for cost was rendered.” In Davis we held that when the trial court sustained the demurrer, the plaintiff had his election to amend his complaint, or, to rest on his complaint and permit final judgment to be rendered dismissing his complaint and then appeal. In so holding, we said:

“It is well settled in this State that no appeal lies where there is no final judgment. The order of the court sustaining the demurrer was not a final judgment but was interlocutory, merely.”

See also the more recent case of Spruill v. Hamilton, 207 Ark. 468, 181 S.W. 2d 35, and cases cited therein.

The appellants simply argue the merits of the cause under their contention that the trial court erred when it overruled their demurrer to the complaint, and in their reply brief they argue that this court should sustain their demurrer and they state, in part, as follows:

“The appellees contend that the order of the lower court was not a final order and not appealable. * * * [I]n this case, the order entered by the lower Court did dismiss appellants’ demurrer, and also dismissed the appellants’ Cross-Complaint. Certainly this lower court order was final as to the Cross-Complaint, and to force these appellants into a trial without a final adjudication on the ‘Cross-Complaint Question,’ and if after the alleged cause of action is heard in the lower court, then the question of the Dismissal of the Cross-Complaint is again submitted to this Court, and this Court finds that the Cross-Complaint should not have been dismissed, a great injustice would be forced on these appellants.”

The appellants’ argument in this connection has been answered contrary to their contention in at least three decisions of this court. In Security Mtg. Co. v. Bell, 175 Ark. 128, 298 S.W. 865, the appellee-defendant filed separate demurrers to Sections 2 and 3 in the first paragraph of Section 4 of the complaint. The trial court sustained the demurrer to Section 3 and the first paragraph of Section 4, but overruled it as to Section 2. The appellant refused to plead further and the complaint was dismissed as to Section 3 and the First paragraph of Section 4 from which order the plaintiff appealed. We held in that case that an objection and exception (at that time required) to the ruling of the court sustaining a demurrer to the third section and fourth paragraph of the complaint fully saved the point on review and adjudication of the whole action, and in that case we quoted from Davie v. Davie, 52 Ark. 224, at p. 227, 12 S.W. 558, and said:

“ ‘The object of the limitation is to present the whole cause here for determination in a single appeal and thus prevent the unnecessary expense and delay of repeated appeals.’
As the appeal must be dismissed for being prematurely taken, we refrain from passing upon the issues determined upon demurrer until the whole case is brought before us on appeal properly taken and prosecuted.”

In Renner v. Progressive Life Ins. Co., 191 Ark. 836, 88 S.W. 2d 57 (1935), the trial court entered an order sustaining a demurrer to part of a complaint and granting a motion to dismiss as to other portions of the complaint. In that case we said:

“The effect of the foregoing order was to dismiss
appellant’s complaint in part only, and to retain a substantial part thereof for trial. In Security Mortgage Company v. Bell, 175 Ark. 128, 298 S.W. 865, reading from the second headnote, we stated the applicable rule as follows: ‘An appeal from an order dismissing a cause as to certain paragraphs, but leaving the paragraph which presented a triable issue, held prematurely taken, since the issues should have been tried and objections to the demurrer urged on the final appeal from the whole action.’
Appellant’s cause being dismissed in part only this appeal is prematurely prosecuted, and must be dismissed.”

In the very recent case of Ind. Ins. Consultants v. 1st State Bk., 253 Ark. 779, 489 S.W. 2d 757, the trial court granted a motion for summary judgment and in so doing dismissed an intervention. After notice of appeal was filed, the trial court corrected its order to show only a partial dismissal of the intervention pertaining to the $21,000 item in issue, and the appellant contended that the trial court lacked jurisdiction to correct its order after the filing of notice of appeal. We found no merit to the contention and in that case we said:

“We do not reach the merits of the other points argued by appellant for lack of a final order. In Renner v. Progressive Life Insurance Co., 191 Ark. 836, 88 S.W. 2d 57 (1935) and Security Mortgage Co. v. Bell, 175 Ark. 128, 298 S.W. 865 (1927), we pointed out that an order dismissing a complaint in part and leaving a part which presented a triable issue was not an appealable order.”
The appeal in this case is dismissed without prejudice.
Fogleman, J., concurs in part and dissents in part.

John A. Fogleman, Justice,

concurring in part, dissenting in part. For the most part, I would affirm the circuit court’s order, but I do not entirely agree with the approach taken to the problem by the majority. I do agree that the overruling of appellants’ demurrer is not properly before us because no final judgment has been entered. I also agree that appellants’ charges of violation of the “Canons of Professional Ethics” (I assume they are referring to the Code of Professional Responsibility) are not properly before us and that they were not properly before the trial court. See Davis v. Merritt, 252 Ark. 659, 480 S.W. 2d 924.

I further agree with the trial court and appellees that the portions of appellants’ pleading stricken by the circuit judge were to be viewed as counterclaims, as well as cross-complaints. Appellants complain that the trial court erroneously treated their pleading as a counterclaim instead of a cross-complaint. 1 agree with the trial court, however, that, insofar as relief against the appellants is concerned, the pleading was properly viewed, at least in part, as an attempt to state counterclaims. Otherwise, the striking of the pleading as a cross-complaint would be clearly proper. A cross-complaint is allowed only against persons other than the plaintiff in an action when a defendant has a cause of action against a co-defendant or a person not a party to the action which affects the subject matter of the action. Ark. Stat. Ann. § 27-1134 (Repl. 1962). Any cause of action asserted by the defendants against the plaintiffs was a counter-claim. Ark. Stat. Ann. § 27-1123 (Repl. 1962); Smiley v. Smiley, 247 Ark. 933, 448 S.W. 2d 642. If a proper counterclaim was pleaded by appellants, then it was possible to bring in new parties (i.e. the city clerk and city treasurer) in addition to the appellees-defendants. Ark. Stat. Ann. § 27-1124 (Repl. 1962); Flanigan v. O. R. Burden Construction Corp., 238 Ark. 43, 377 S.W. 2d 870.

Unlike my brethren of the majority, I consider that part of the trial court’s order striking portions of appellants’ “answer and cross-complaint” to be appealable and the propriety of the court’s action a question properly before us. It is essential to a clear statement of my position that I review the record in the case in the light of the provisions of Ark. Stat. § 27-2101 (Supp. 1973) set out in the second paragraph. The pertinent portions of the statute are:

The Supreme Court shall have appellate jurisdiction over the final orders, judgments and determinations of all inferior courts of the State, in the following cases and no other:
Second: In an order affecting a substantial right made in such action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action; and when such order grants or refuses a new trial, or when such order strikes out an answer, or any part of an answer, or any pleading in an action.

Where an order finally determines a distinct and severable branch of a cause, it has always been held to be appealable, even though the suit is not ended. Davie v. Davie, 52 Ark. 244, 12 S.W. 558. It has heretofore been recognized that a decree or order dismissing a cross-action (apparently either cross-complaint or counter-claim from a technical point of view) is appealable at least in some circumstances not involving the sustaining of a demurrer. Fox v. Pinson, 177 Ark. 381, 6 S.W. 2d 518; Flanigan v. Drainage Dist. No. 17, 176 Ark. 31, 2 S.W. 2d 70; Purser v. Corpus Christi National Bank, 256 Ark. 452, 508 S.W. 2d 549; Reynolds v. Bakem Credit Union, 255 Ark. 322, 500 S.W. 2d 549. We have also held that a judgment dismissing and striking an answer was final and appealable, even though final judgment awaited a jury verdict some eight months later, and that the question relating to the pleading being stricken could not be raised on appeal from the final judgment. Dunklin v. Watkins, 202 Ark. 602, 151 S.W. 2d 978. In a decision very pertinent to one of the issues here we considered a chancery court order permitting the Attorney General of Arkansas to appear and defend a suit by a taxpayer against the Commissioner of Revenues for the recovery of income tax paid under protest. We held that order to be appealable and reversed the trial court. Parker v. Murry, 221 Ark. 554, 254 S.W. 2d 468.

The order here, I submit, is one striking various counterclaims and parts of appellants’ answer. By statute a counterclaim is necessarily a part of defendants’ answer. Ark. Stat. Ann. § 27-1121 (Repl. 1962).

The City of Paragould instituted this action in which its mayor and city council were plaintiffs. Additional plaintiffs were Jeffery Harris and C. P. Smith, who claim to be duly elected and qualified members of the Water and Sewer Commission of the City of Paragould pursuant to its ordinance 904. Horton and others, who had been elected directors and commissioners in charge of the water and sewer facilities in the city pursuant to an act of the Legislature which plaintiffs contended had been repealed, were made defendants. Appellants Gary McClure and H. P. Taylor were made defendants as property owners within the city limits of Paragould and property owners within the boundary lines of old Water Improvement District No. 3, and who, appellees alleged, had in the past undertaken to act in behalf of the property owners of said Water Improvement District No. 3 in determining legal matters. The allegations of the complaint, however, made them representative parties to the action as members of a class consisting of the property owners within the boundary lines of Water Improvement District No. 3, for the purpose of binding these property owners by the determination of the issues in the lawsuit. Appellees also alleged that the defendants had asserted that there is a special and pecuniary interest on the part of property owners in the original Water Improvement District No. 3, to the exclusion of participation of all electors of the city in the affairs of the water and sewer department. Basically appellees sought a declaratory judgment holding that the ownership, control and management of the water and sewer systems of the City of Paragould is currently and has been, since the adoption of Act 653*of the General Assembly of 1967, in the mayor and city council of the City of Paragould with the legal authority on the part of any of the defendants being limited to such powers as they may have given by ordinance or resolution validly adopted by the council of the city pursuant to láw.

The defendants, appellants here, joined in a pleading against the named plaintiffs and against Laveta Smith, treasurer of the City of Paragould and Emma Jean Cole, city clerk. In this pleading appellants alleged that the legislative acts upon which the plaintiffs relied were unconstitutional and void in any application to the control, management, operation and ownership of the water facility property and the vested rights of the defendant Water Improvement District No. 3 of Paragould. Appellants’ “cross-complaint” was asserted by them as taxpayers against the mayor, city councilmen, treasurer and city clerk of the City of Paragould. In it they alleged:

A. That the action taken by the city was in violation of a bond ordinance passed in 1963 in order to receive a federal grant to be used in sewer improvement work by extensions, betterments and improvements to alleviate hazards to life, health and safety of the inhabitants of the city and that this ordinance pledged and required that the operation of the system and the collection of revenues be continued under the control of the waterworks and sewer commission theretofore established and functioning;
B. That acts relied upon by the city were unconstitutional, void and constituted a constructive fraud on the real property owners in Water Improvement District No. 3, in that they repealed an earlier act and thereby destroyed certain contractual and accrued rights of the property owners in Water Improvement District No. 3 and in the sewer facilities of the City of Paragould, and further more, that the passage of Ordinance 904 was a direct violation of these contractual and accrued rights, so that the city should be permanently enjoined from attempting to divest control of the water facility from the board of directors of Water Improvement District No. 3;
C. That appellees should be permanently enjoined from prosecuting lawsuits such as this and required to refund to the city treasurer all attorneys’ fees and expenses paid from the city treasury for prosecution of certain lawsuits;
D. That the mayor and individual council members should be required to refund into the city treasury all attorney’s fees, court cost and expenses paid from the city treasury in defending a suit brought by McClure and Taylor as property owners in Paragould Water Improvement District No. 3 and in drafting an act to repeal the statutes upon which McClure and Taylor had relied;
E. That personal judgment should be entered against appellees as individuals and in favor of the City of Paragould for all monies expended in processing lawsuits relative to the subject matter, including attorneys’ fees paid to special counsel;
F. That special counsel should not be allowed to proceed in the case because a member of the firm had accused a member or members of the city council of bribery in connection with a rezoning petition in which his firm was interested;
G. That the employment of special counsel to prosecute this action was in violation of ordinance 924 of the city prescribing the duties of the city attorney of Paragould and that the mayor and councilmen should be required to refund city money paid to special counsel and to dismiss special counsel and that they should be enjoined from employing any special counsel to file suits of this nature interfering with the operation of the water facility of this city;
H. That the mayor and city council of the City of Paragould should be enjoined from requiring the surplus funds of the Light Plant Commission be turned over to the city and that the city should be required to refund $35,000 and any other funds in the city treasury belonging to the Light Plant commission to that Commission;
I. That, upon their cross-complaint McClure and Taylor, as representatives of taxpayers in the city as a class, should recover amounts paid to the mayor over and above the $5,000 constitutional salary limit;
J. That the city treasurer and city clerk be enjoined from issuing warrants for expenses for special attorneys’ fees and expenses incident to this suit and for any money to be paid to the mayor over and above an annual salary of $5,000; and
K. That the case be transferred to equity.

Appellees did not demur but moved to strike all those portions of the appellants’ counterclaim and cross-complaint seeking relief by way of class action and all those portions of defendants’ counterclaim and cross-complaint which seek an injunction to keep the plaintiffs from being represented by special counsel and all those portions relative to the Light Plant Commission of the city. Thereafter, the answer and cross-complaint were amended in particulars not material to the question now before us. The trial court dismissed all portions of appellees’ counterclaim and cross-complaint except the portions relating to the contentions (A) that the action of the city was in violation of the bond ordinance for sewer improvements and (B) that certain acts upon which the plaintiffs relied and ordinance 904 of the city were void and unconstitutional as a violation of the contractual and accrued rights of property owners in Water Improvement District No. 3.

Thus we are not dealing with a demurrer to an answer but with a motion to strike. Furthermore, we must determine to what extent the pleading filed is a counterclaim and to what extent it was (as appellants contend it is) a cross-complaint. In this connection it should be remembered that a counterclaim must be asserted against the plaintiffs in the action. Appellants’ claims stricken except for (G) and (J) above were efforts to obtain personal judgments against the persons named as plaintiffs in the action. These then were not counterclaims because they did not state causes of action against the plaintiffs (appellants). This is true because appellants sued, not as individuals, but in the official capacities alleged in the complaint, and not as private individuals. When a cross-complaint contains matter foreign to the subject matter put in issue in the complaint, new parties not having an interest affecting the original suit may not be brought in. Home Insurance Co. v. Moro, Inc., 253 Ark. 304, 485 S.W. 2d 736; Meyers Store Co. v. Armstrong, 187 Ark. 636, 61 S.W. 2d 440; Naler v. Ballew, 81 Ark. 328, 99 S.W. 72; Pindall v. Trevor & Colgate, 30 Ark. 249.

Clearly the individuals, who, for the time being, represented the City of Paragould were “new parties”, as were the officials (city clerk and city treasurer) named as cross-defendants by appellants in their pleading. It seems to me that it was not proper to bring these parties into the case; the pleading constituted a cross-complaint to this extent and was properly stricken as to items (C), (D), (E) and (I). The relief sought clearly does not. affect the subject matter of the action and is not a claim against the plaintiffs. Item (F) simply states no cause of action or claim for relief.

As to items (H) and (I), and that portion of item (J) directed toward the mayor’s salary, we are governed by our holdings in Tucker v. Pulaski Federal Savings & Loan Ass’n, 252 Ark. 849, 481 S.W. 2d 725 that the counterclaim statute cannot be used as a vehicle for bringing a class action. It was also proper that the court dismiss the cross-complaint features of the pleading in the exercise of sound judicial discretion in that the issues would become so complicated and confusing that a judgment that would not prejudice rights of parties would be difficult to reach. Flanagan v. O. R. Burden Construction Corp., 238 Ark. 43, 377 S.W. 2d 870.

As to item (G) and item (J), insofar as it related to special counsel’s fees, I feel that the trial court erred. Insofar as appellants are concerned they were required to assert as many grounds of affirmative defense or counterclaim as they had. Ark. Stat. Ann. § 27-1121 (Repl. 1962). Hughes v. Holden, 229 Ark. 15, 316 S.W. 2d 710; Shrieves v. Yarbrough, 220 Ark. 256, 247 S.W. 2d 193; Adams v. Henderson, 197 Ark. 907, 125 S.W. 2d 472. Appellants had the right to challenge the authority of appellees’ attorneys to represent them in the suit. McKenzie v. Burris, 255 Ark. 330, 500 S.W. 2d 357. See also, Nunez v. O.K. Processors, Inc., 238 Ark. 429, 382 S.W. 2d 384.

It is probably immaterial to this question that McClure and Taylor assert these claims, along with the other appellants, in a representative capacity; however, insofar as this phase of the case is concerned, they could properly assert a counterclaim for property owners in Water Improvement District No. 3. They did not make themselves the champion of that group. Appellees did. I submit that if the decree was to bind this class, its representatives were required to assert any ground of affirmative defense or counter-claim the class might have.

I would affirm the action of the trial court except as to that part of appellants’ pleading relating to the employment of special counsel.

      This part of the order may not be appealable. Worth Insurance Company v. Patching, 241 Ark. 620, 410 S.W. 2d 125.


author: Frank Holt, Justice. Carleton Harris, Chief Justice, John A. Fogleman, Justice,

text:
    Richard S. McCONAHAY v. STATE of Arkansas
    CR 74-99
    516 S.W. 2d 887
    Opinion delivered December 2, 1974
    [Rehearing denied January 20, 1975. ]

      F. James Jefferson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen. and Arthur John Anderson Jr., Dep. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury first determined appellant guilty of grand larceny. Then pursuant to the habitual offender act, Ark. Stat. Ann. § 43-2328 (Supp. 1973), documents evidencing four previous convictions were introduced and appellant's punishment was assessed by the jury at 31 Vi years, the maximum, in the Department of Correction. Appellant asserts for reversal that the court erred in allowing the jury to consider as evidence of prior convictions two documents which do not reflect whether the appellant was represented by or had validly waived counsel. The state with commendable candor concedes this is error.

Appellant’s court appointed and present counsel objected to the introduction .of these two deficient documents. However, they were admitted into evidence on the basis that they reflected appellant had received a jury trial. Therefore, it presumably would appear that appellant was represented by counsel. It is well settled that “presuming waiver of counsel from a silent record is impermissible.” Burgett v. Texas, 389 U.S. 109 (1967). The introduction of a previous conviction document, where that record concerning representation is “silent,” is prejudicial error. Roach v. State, 255 Ark. 773, 503 S.W. 2d 467 (1973); Richards v. State, 254 Ark. 760, 498 S.W. 2d 1 (1973); Wilburn v. State, 253 Ark. 608, 487 S.W. 2d 600 (1972); and Burgett v. Texas, supra.

Appellee urges that a practical and appropriate procedure now would be to remand the cause for an eviden-tiary hearing by the trial court similar to that in Jackson v. Denno, 378 U.S. 368 (1964), to determine if appellant was represented by or validly waived counsel during the trials of his two out of state convictions. By Ark. Stat. Ann. § 43-2105 (Supp. 1973), following Denno, a confession of a defendant is not admissible into evidence for a jury’s consideration until the court has first held an in chambers hearing and there determined by a preponderance of the evidence that the confession was free and voluntary. When determined as being admissible our statute requires that thereupon “[I]ssues of fact shall be tried by a jury. ...” In Kagebein v. State, 254 Ark. 904, 496 S.W. 2d 435 (1973), we recognized that Denno and our statute are for the purpose of preventing a jury from hearing an involuntary confession. There we said “[I]t is not intended to restrict evidence a jury may hear after a court determination of voluntariness has been made. The defendant still has the constitutional right to Ir ve his case heard on the merits by a jury, including the weignt and credibility the jury might give to the voluntariness of the confession.”

The state says, however, in the case at bar, that upon a remand it is willing to shoulder the heavy burden of proof in a Denno hearing to convince the trial court beyond a reasonable doubt that the appellant was represented by or validly waived counsel at the time of his previous convictions. If the state meets that burden of proof with respect to the admissibility of the deficient documents, then the state asserts appellant’s sentence should stand and would comport with appellant’s constitutional rights. If, however, the burden of proof is not met, then the state would have the election to retry the appellant or accept the minimal enhancement of his sentence based upon the two documents to which no objection was made. We cannot agree with this suggested procedure.

Ark. Stat. Ann. § 43-2330.1 (Supp. 1973), our habitual criminal statute, reads in pertinent part:

The following trial procedure shall be adhered to in cases involving habitual criminals:
(1) The jury shall first hear all the evidence pertaining to the current charge against the defendant and shall retire to reach its verdict as to this charge, based only upon such evidence; *** [which was done in the case at bar]

(2) If the defendant is found guilty, the same jury shall sit again and hear evidence of defendant’s prior conviction(s). Provided, that the defendant shall have the right to deny the existence of any prior conviction (s), and to offer evidence in support thereof. (Emphasis ours.)

Certainly, it is for the trial court to determine the preliminary issue as to admissibility of the evidence. Cantrell v. State, 117 Ark. 233, 174 S.W. 521 (1915). The court should not now be asked to do indirectly what it could or should not do directly at the initial trial; i.e., determine the truthfulness or veracity of the admittedly infirm documents without that issue being determined by the jury. Cf. Cantrell v. State, supra. That is an issue which our legislature clearly intended for the jury’s determination once the trial court finds it admissible. Citations are not necessary to the effect that we have consistently held that a statute, which is penal in nature, as here, must be strictly construed.

Appellant’s counsel had a right to rely upon our previous decisions interpreting this statute and the procedure followed. Wilburn, supra. When the prior convictions were introduced, counsel properly objected and pointed out the constitutional infirmity. In Denno the defendant testified before the jury as to his version of his confession. According to Wilburn, it was unnecessary for appellant to testify or introduce any evidence, neither of which he did, since the documents were, as admitted, constitutionally defective. The burden was upon the state to offer proper documents or evidence before the jury to correct the defects. Our state and federal constitutions guarantee appellant the right to confront and cross-examine adversary witnesses. The jury, by this highly penal statute should be allowed, if requested, to weigh the credibility of these witnesses on a most vital and crucial fact issue.

In the case at bar, in accordance with our well established procedure when an infirm document of a previous conviction is admitted as evidence, we reduce appellant’s sentence. Roach v. State, supra, Richards v. State, supra, and Wilburn v. State, supra. Here we reduce appellant’s sentence to a total of four years (one year minimum for grand larceny [Ark. Stat. Ann. § 41-3907 (Repl. 1964)], plus three years for the two unquestioned previous convictions) to remove any possibility of prejudicial effect to the appellant resulting from the two defective documents concerning previous convictions. If the state, through the attorney general, desires to accept this reduction within seventeen calendar days, the judgment is affirmed as modified. Otherwise, the judgment is reversed and remanded.

Affirmed upon acceptance of modification.

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

Carleton Harris, Chief Justice,

dissenting. I agree with the procedure suggested by the State as far as this particular litigation presently before the court is concerned. In Wilburn v. State, 253 Ark. 608, 487 S.W. 2d 600, this court, upon the authority of the United States Supreme Court cases cited in Wilburn, reversed the judgment because the evidence offered concerning one of appellant’s three prior convictions did not reflect that Wilburn was represented by counsel in the earlier conviction, or that he had waived counsel, and we remanded the case for another trial “unless the attorney general within 17 days elects to accept a modification of the punishment so as to sentence Wilburn to the minimum time of three years plus one additional year as penalty for the second offense, or a total of four years in the state penitentiary.”

I am in agreement with the State’s proposal that this cause should be remanded for further proceedings to be conducted before the trial judge in order to determine whether the prior convictions were, as a matter of law, constitutionally infirm. Evidence should be presented before the court relative to whether appellant was represented on those occasions by counsel, or if he waived the right to counsel. If the additional evidence affirmatively reflects either of these facts, then, of course, the documents which were presented before the jury were properly admissible, and the original sentence should stand. On the other hand, if the evidence does not reflect either of these two facts, the State would then elect under the option set forth in Wilburn and either accept the minimal enhancement sentence of four years, or retry appellant with the possibility of obtaining, upon conviction, an enhancement sentence of from four to 21 years. I cannot see how McConahay can be prejudiced under this procedure, for unless the evidence, beyond a reasonable doubt, reflects that McConahay was represented by counsel, or waived the right to counsel, the judgment stands reversed. On the other hand, if the evidence reflects beyond a reasonable doubt that McConahay was represented by counsel, or waived that right, he still has suffered no prejudice, for the jury has already passed upon his prior convictions (the same jury that passed on the current grand larceny charge), and our statute has thus been complied with. I recognize that McConahay did not take the stand to testify relative to these prior convictions — but he certainly had the opportunity to testify and to deny that he had been convicted. Thus far, I agree with fellow Justice Fogleman, and we are in accord with regard to disposition of this case.

However, as far as future cases are concerned, I would suggest the following procedure:

The jury shall first hear all the evidence relating to the current charge against a defendant and shall retire to reach its verdict as to this particular charge, based only upon the evidence of the current offense (this is the requirement of the statute). If the jury finds the defendant guilty, the court, before permitting any evidence to be presented to the jury by the prosecuting attorney relative to prior convictions under the habitual criminal act, should conduct an in chambers hearing, and pass upon the validity or admissibility of the evidence to be offered to the jury concerning prior convictions. Should the court find a constitutional defect (the defendant was not represented by counsel or did not waive the right to counsel in the earlier convictions), the court would not permit such evidence to be introduced before the jury. If, on the other hand, the evidence convinces the trial court beyond a reasonable doubt that the defendant was represented by counsel, or waived the right to counsel at the trials which resulted in prior convictions, this evidence would then be admitted before the jury, and that body (the same jury which found him guilty on the current charge), would pass upon whether he had been convicted of the prior offenses, and would then fix his punishment, considering both the current and previous convictions. The requirement of the statute that “the same jury shall sit again and hear evidence of defendant’s prior conviction(s)” would thus be observed.

This procedure would guard against inadmissible testimony concerning prior convictions being offered in evidence, preventing reversals in cases involving habitual offenders, and at the same time, in every respect, safeguarding the rights of a defendant. It follows that I disagree with the views expressed in the majority opinion, and accordingly, respectfully dissent.

John A. Fogleman, Justice,

dissenting. I dissent from the condition placed upon the affirmance. I would remand the judgment without modification. I definitely disagree with certain statements in the majority opinion. I further dissent from the rejection of the procedure on remand suggested by the Attorney General. I do not agree that representation by counsel, or lack of it, or waiver, has even a remote or minute bearing on the “truthfulness or veracity” of a record of conviction. Nor can I agree that records of convictions which are silent with respect to representation by counsel, or the waiver of the right thereto, are, in any sense of the word “infirm documents”. The fact that it is necessary that a foundation be laid for their introduction does not make them infirm. Neither do I agree that somehow appellant would, as implied by the majority, be deprived of the right to confront and cross-examine witnesses by the state’s suggestion. The relevance of the statement in that regard escapes me.

I do not agree that appellant’s counsel had the right to rely on our previous decisions in not contesting the existence of the previous convictions, as the statute permits. We had no such decisions and appellant had every opportunity to contest the existence of these convictions, if he chose to do so, after they were admitted. I am sure that the majority does not really intend to say, though it does imply, that trials should be reduced to sporting matches in which one party o.r the other may “hide behind a log” of error and by reason thereof be afforded a second chance to do that which he could have done, without prejudice, in the first instance, had he chosen to do so.

I cannot help feeling that an erroneous premise has led the majority into its unwarranted rejection of the procedure proposed by the state. That premise is the statement, or to say the least, the plain implication, that the question of representation or waiver of counsel in a previous conviction is necessarily for jury determination, at least at the option of a defendant in the position of appellant.

I feel that elaboration upon the state’s proposed procedure is essential to its being understood and demonstrative of its propriety.

Where we have found this error in previous cases, beginning with Wilburn, we have permitted the state to have the option of having the judgment affirmed but modified to provide for the minimum sentence which the jury might have imposed if the objectionable evidence had been excluded or to have it reversed and the case remanded for a new trial. We did this on the basis that, if the modification be accepted, there was no possible prejudice to the appellant.

The state suggests that the Wilburn procedure is not necessarily exclusive and that there is an alternate procedure which we can and should follow in these cases. The Attorney General urges that we remand this case to the trial court for an evidentiary hearing of the type prescribed in Jackson v. Denno, 378 US. 368, 84 S.Ct. 1774, 12 L.Ed. 2d 908, 1 A.L.R. 2d 1205 (1964) where the question of the admissibility of a confession was involved, except that the state here would have the burden of showing, beyond a reasonable doubt, that McConahay was represented by counsel at his trial on the questioned convictions, or that he had knowingly and intelligently waived his right to such representation. If the state meets that heavy burden, he suggests, the constitutional error was harmless and the sentence should stand. If not, then the trial court could give the state the option of agreeing to a reduction of sentence under the Wilburn rule, or a new trial. I find this suggestion to be practical, without prejudice to any right of appellant and constitutionally in harmony with Jackson v. Denno, supra.

Our statute on habitual offenders is Ark. Stat. Ann. § 2330.1 (Supp. 1973). In pertinent part, it reads:

The following trial procedure shall be adhered to in cases involving habitual criminals:
(2) If the defendant is found guilty, the same jury shall sit again and hear evidence of defendant's prior conviction^). Provided, that the defendant shall have the right to deny the existence of any prior conviction(s), and to offer evidence in support thereof. (Emphasis ours.)

The statute only gave the defendant the right to deny the existence of any prior conviction. Clearly appellant had that right in this case but chose not to avail himself of it. There is no right on the part of a defendant to have the jury determine the weight or credibility of evidence of a previous conviction on the basis of representation by counsel or lack thereof or to consider the question of admissibility of evidence of a previous conviction. Where records of prior convictions are offered, either for enhancement of punishment or for impeachment of a witness, the question whether the party or witness was afforded the right to counsel, or waived it, goes to the question of admissibility of the evidence of the conviction. This is made clear in the leading case, Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L. Ed. 2d 319 (1967). We have treated the matter in the same light. See Wilburn v. State, 253 Ark. 608, 487 S.W. 2d 600; Richards v. State, 254 Ark. 760, 498 S.W. 2d 1; Roach v. State, 255 Ark. 773, 503 S.W. 2d 467.

The determination whether evidence is admissible is for the trial judge, even though he may have to decide a preliminary question of fact relating to the foundation for its admission. 75 Am. Jur. 2d 407, Trial § 345; 88 C.J.S. 407, Trial § 207. This is true, even though it is not error for the trial court, when in doubt about a matter essential to admission, to submit the question to the jury. 75 Am. Jur. 2d 407, Trial § 345; 88 C.J.S. 407, Trial § 207. See IX Wigmore on Evidence (3rd Ed.) 501, § 2550; McCormick on Evidence (2d Ed.) 121, § 53; Cantrell v. State, 117 Ark. 233, 174 S.W. 521; Pine Bluff Co. v. Bobbett, 174 Ark. 41, 294 S.W. 1002; Wimberly v. State, 90 Ark. 514, 119 S.W. 668; Clements v. State, 199 Ark. 69, 133 S.W. 2d 844.

It was clearly recognized in Burgett, that the error in admitting evidence such as is involved here might be harmless. There the United States Supreme Court said:

The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial and we are unable to say that the instructions to disregard it made the constitutional error “harmless beyond a reasonable doubt” within the meaning of Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.

Other courts have recognized that this is the case. See e.g. Donahay v. State, 255 S. 2d 598 (1971); Gilday v. Scafati, 428 F. 2d 1027 (1 Cir. 1970); United States v. Penta, 475 F. 2d 92 (1 Cir. 1973); Gilday v. Commonwealth, 355 Mass. 799, 247 N.E. 2d 396 (1969); Subilosky v. Commonwealth, 358 Mass. 390, 265 N.E. 2d 80 (1970); White v. State, 11 Md. App. 423, 274 A 2d 671 (1971); Tucker v. United States, 299 F. Supp. 1376 (D.C., Cal., 1969), 431 F. 2d 1292 (9 Cir. 1970), United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed 2d 592 (1972). In Loper v. Beto, 405 US 473, 92 S. Ct. 1014 (1972) this possibility was definitely recognized. The prevailing plurality of four, added this footnote to their opinion per Stewart, J.:

In the circumstances of this case there is little room for a finding of harmless error, if, as appears on the record now before us, Loper was unrepresented by counsel and did not waive counsel at the time of the earlier convictions. Cf. Subilosky v. Moore, 443 F. 2d 334; Tucker v. United States, 431 F. 2d 1292; Gilday v. Scafali, 428 F. 2d 1027.

Furthermore, Mr. Justice White, in a concurring opinion essential to the decision, made these pertinent statements:

***** and as our past cases now stand, I agree with Mr. Justice Stewart that the Court of Appeals’ reasons for affirming the District Court were erroneous. This judgment, however, does not necessarily mean that Loper’s conviction must be set aside. There remain issues unresolved by the Court of Appeals, as to whether the challenged prior convictions were legally infirm; was Loper represented by counsel at the time of the earlier convictions; if not, did he waive counsel? These matters are best considered in the first instance by the Court of Appeals. The same is true with respect to the legal significance of the lack of proof with respect to the validity of one or more of the prior convictions used for impeachment purposes at Loper’s trial. In this connection, I do not understand our prior decisions to hold that there is no room in cases such as this for a finding of harmless error; and if this case is ultimately to turn on whether there was harmless error or not, Í would prefer to have the initial judgment of the lower court.

The Supreme Court of California In Re Dabney, 76 Cal. Reptr. 636, 452 P. 2d 924 (1969) discussed the matter, viz.

We do not believe that the Supreme Court’s description of the error as inherently prejudicial means that it can never be found “harmless beyond a reasonable doubt” within the meaning of Chapman, for the court apparently applied the Chapman test in Burgetl. It did not state that because the error was inherently prejudicial it could never be deemed harmless, but instead stated that the error was inherently prejudicial and that “we are unable to say that the instructions to disregard it made the constitutional error ‘harmless beyond a reasonable doubt’ * * It did not foreclose the possibility that on another record presenting different facts it could conclude that such error was harmless.
By describing the error as inherently prejudicial, the court may have meant only that such error is always to some extent harmful by reason of its essential character and is therefore different from error in the admission of other unconstitutionally obtained evidence that is not always harmful, such as, for example, innocent responses to an interrogation not preceded by required Miranda warnings. (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed 2d 694.) In this sense of “inherently,” used as descriptive of the essential character of the error, commenting on a defendant’s failure to testify is also inherently prejudicial. (See Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed 2d 106.) Such error, however, may be found harmless under Chapman. Accordingly, we adhere to our holding * * * that the introduction into evidence of an unconstitutional prior conviction is not prejudicial per se and therefore does not necessarily effect reversible error. Both the court’s language in Burgett and the background provided by Spencer make clear, however, that only the most compelling showing can justify finding such error harmless beyond a reasonable doubt.

If appellant was actually represented by counsel, or had waived his rjght to counsel, in the cases resulting in the conviction of which he complains, he has not been prejudiced and the error is harmless. Of course, we cannot, upon the present record say/that this is so. But this does not mean that appellant is entitled to a new trial without a determination whether the evidence was prejudicial or harmless. If remand for that purpose is innovative, so much the better, so long as substantial individual rights are not prejudiced. Retrials are a burden upon the whole judicial system, as well as upon witnesses, officers, and all others connected with them. Where they can be avoided without prejudice to individual rights of parties, they should. The procedure suggested by the state would be a positive step in this direction. The trial court has the means of determining the facts. If it should be found that the convictions admitted were, beyond a reasonable doubt, not constitutionally inadmissible, even though they appeared so to be, why should appellant have a new trial?

The state’s suggestion is not as innovative as it might appear. In Johnson v. State, 9 Md. App. 166, 263 A.2d 232 (1970) the Maryland Court of Special Appeals recognized that the U.S. Supreme Court in Burgett applied the harmless error test of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.E. 2d 705 and was unable to say that the error was harmless. That court said:

*** In short there was nothing before the trial court upon which it could properly determine that the prior convictions were valid and thus admissible. We think the purposes of justice will be advanced by permitting further proceedings in the case. As we find***that the other contentions of appellant do not constitute grounds for reversal, we remand the case, without affirming, reversing or modifying the judgment, with direction to the lower court to conduct forthwith an evidentiary hearing on the issue of the validity of the prior convictions, at which the procedure hereinbefore set out shall be followed. Rule 1071. On the evidence adduced at such hearing, the lower court shall determine as to each prior conviction admitted in evidence at the trial on the merits, whether or not it was constitutionally valid. Upon such determination the record will be transmitted to this court.

The U.S. Court of Appeals for the Second Circuit, in United States v. DuShane, 435 F. 2d 187 (1970), also treated the matter, saying:

Accordingly, on this record, the evidence of the Oklahoma conviction was improperly introduced. However, it may be that the Government can produce live witnesses whose testimony, after cross-examination, as to what transpired in Oklahoma in 1959 could be a proper basis for a finding of waiver. ***** Therefore, we remand for a further evidentiary hearing on the issue of waiver. After such hearing and the careful consideration that the issue requires, if the trial judge concludes that the Government has not carried its burden of proving waiver, the judgment of conviction should be set aside. If he finds waiver, the judgment of conviction will remain, but appellant will again be able to pursue appellate remedies, if he so wishes, on the fuller record.

See also, People v. Moore, 391 Mich. 426, 216 N.W. 2d 770 (1974), relating to post conviction relief.

In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed. 2d 908, 1 A.L.R. 2d 1205, when the question was one of admissibility of evidence, the court said:

*** But if at the conclusion of such an evidentiary hearing in the state court on the coercion issue, it is determined that Jackson's confession was voluntarily given, admissible in evidence, and properly to be considered by the jury, we see no constitutional necessity at that point for proceeding with a new trial, for Jackson has already been tried by a jury with the confession placed before it and has been found guilty. True, the jury in the first trial was permitted to deal with the issue of volun-tariness and we do not know whether the conviction rested upon the confession; but if it did, there is no constitutional prejudice to Jackson from the New York procedure if the confession is now properly found to be voluntary and therefore admissible. If the jury relied upon it, it was entitled to do so. Of course, if the state court, at an evidentiary hearing, redetermines the facts and decides that Jackson’s confession was involuntary, there must be a new trial on guilt or innocence without the confession’s being admitted in evidence.

Of course, where error of constitutional proportions is involved, it is prejudicial, unless it be judicially determined beyond a reasonable doubt that the error was harmless. We should remand this case to the trial court to conduct a hearing to determine whether the error in admitting the convictions objected to was harmless beyond a reasonable doubt. If it so finds, then appellant would be free to pursue a further appeal. If not, then the court should grant appellant a new trial unless the state should agree to a reduction of sentence as prescribed in Wilburn v. State, supra, and its progeny.

I am authorized to state that Mr. Justice Brown joins in this dissent.

      Lest I be accused of legislating, let it be pointed out that the General Assembly of 1971, through Act 470, enacted legislation reading as follows:
      “SECTION 1. The Supreme Court of the state of Arkansas shall have the power to prescribe, from time to time, rules of pleading, practice, and procedure with respect to any or all proceedings in criminal cases and proceedings to punish for criminal contempt of court in all the inferior courts of law in this state.”
      Under this legislation, it is my view that a rule should be promulgated embracing the procedure set out in this opinion. For that matter, there is nothing suggested that conflicts with the statute, the only purpose being to prevent inadmissible testimony from being offered.

      I would even go along with the majority opinion insofar as disposition of this case is concerned, if the opinion provided that future cases should be handled in the manner set out in this dissent.


author: Carleton Harris, Chief Justice.

text:
    Arthur RATZLAFF et al v. FRANZ FOODS of Arkansas, a Subsidiary of TYSON’S FOODS, an Arkansas Corporation
    74-172 to 178
    516 S.W. 2d 385
    Opinion delivered December 9, 1974

      Putman, Davis & Bassett, by: Tilden P. Wright III, and John 0. Maberry, for appellants.

      Crouch, Blair, Cypert & Waters, for appellees.
   Carleton Harris, Chief Justice.

This is the third appeal in this litigation. See Ratzlaff, et al v. Franz Foods of Arkansas, 250 Ark. 1003, 468 S.W. 2d 239, and Ratzlaff, et al v. Franz Foods of Arkansas, 255 Ark. 373, 500 S.W. 2d 379. The pertinent facts are set out in the first Ratzlaff case, and it is not necessary that those facts be here reiterated. It is sufficient to say that appellants contend that appellee has discharged certain noxious wastes into the sewer system of the City of Green Forest, allegedly polluting Dry Creek, a stream running through appellant’s properties, and they allege damages. In the first case, the trial court sustained a demurrer to the complaint and we reversed and remanded, our holding being largely predicated on the fact that the complaint asserted that appellee had violated a contractual duty with the City. We also pointed out, however, that in Carmichael v. City of Texarkana, 116 F. 845, 54 C.C.A. 179, it was recognized that a user of the City’s sewage facilities could, under some circumstances, be liable. In the second Ratzlaff case, the appeal was dismissed because we held that it constituted a “piecemeal appeal”. Following the remand of that case, four additional plaintiffs joined the original plaintiffs in the suit against Franz Foods and except for slight variations of property descriptions and the amount of damages sought, the complaints and amended complaints are substantially identical to those of original appellants. There are three allegations, the first being the existence of an oral or written contract between appellant and the City of Green Forest, by which contract Franz was restricted from depositing certain production waste matters into the City Sewer System. It was next asserted that Franz was directly depositing such matter into Dry Creek, causing the pollution of said stream to the damage of appellants, and finally it was asserted that Franz had violated the City ordinance which specifically provided that certain deposits of waste products should not be deposited into the sewer system of the City. As to the last contention, the court granted a summary judgment, holding, as a matter of law, that this allegation did not state a cause of action; subsequently, the evidence being stipulated, the court granted a directed verdict and dismissed the complaint. Thereafter, this appeal was perfected, but only one point is here relied upon, viz-, “The existence of Ordinance No. 272 of the City of Green Forest, Arkansas, and the violation of such ordinance by the appellee states a cause of action against the appellee.”

Ordinance No. 272 is an exhibit to the complaint.

As to the ordinance, the complaint, inter alia, asserts violations of Article III, Section 3 (b), (d), Section 4 (b), (c), (f), (h), (i) (3), (i) (4), and (j) of said ordinance. We agree with appellee that violations of Section 4 and its subdivisions do not assert a cause of action since that section provides that no substances, wastes, etc., shall be discharged into the sewer system “if it appears likely in the opinion of the Water Superintendent or Sewer Superintendent such wastes can harm either sewers, sewage treatment process or equipment, have an adverse effect on the receiving stream, or can otherwise endanger life, limb, public property, or constitute a nuisance.” There is no allegation in the complaints or amended complaints that the superintendent has made any finding that waste deposited by Franz can harm the system, and without such an allegation, a cause of action cannot be predicated on this section.

Violations mentioned in Section 3, however, are not dependent upon the opinion of the Sewer Superintendent. Pertinent provisions in that section read as follows:

“Section 3. No person shall discharge or cause to be discharged any of the following described waters or wastes to any public sewers: . . .
(b) Any waters or wastes containing toxic or poisonous solids, liquids or gases in sufficient quantity, either singly or by interaction with other wastes to injure or interfere with any sewage treatment process [to] constitute a hazard to humans or animals, create a public nuisance or create any hazard in the receiving waters of the sewage treatment plant, including, but not limited to, cyanides in excess of two (2) mg/1 as CN in the wastes as discharged to the public sewer.
(d) Solid or viscose substances in quantities or of such size capable of causing obstruction to the flow in sewers or other interference with the proper operation of the sewage works such as, but not limited to, ashes, cinders, sand, mud, straw, egg shells, shavings, metal, glass, rags, feather, tar, plastics, wood, unground garbage, whole blood, pauch manure, hair and fleshings, entrails, paper dishes, cups, milk containers, etc., either whole or ground by garbage grinders.”

Appellee argues, however, that Article VI of the Ordinance covers this section. Article VI reads:

“Section 1. Any person found to be violating any provision of this ordinance shall be served by the Water Superintendent or the Sewer Superintendent with written notice stating the nature of the violation and providing a reasonable time limit for the satisfactory correction thereof. The offender shall, within the period of time stated in such notice, permanently cease all violations.
Section 2. Any person who shall continue any violation beyond the time limit provided for in Article VI, Section 1, shall be guilty of a misdemeanor, and on conviction thereof may be fined in an amount not exceeding One Hundred Dollars ($100.00) for each violation. Each day in which any such violation shall continue shall be deemed a separate offense.
Section 3. Any person violating any of the provisions of this ordinance shall become liable to the City for any expense, loss, or damage occasioned the City by reason of such violation.”

It is contended that since there are no allegations that the Sewer Superintendent has served a notice on appellee, as provided in Section 1, the complaint fails to state a cause of action.

Appellee, in its brief, says with reference to Section 3 and the pertinent subsections:

“This leaves only the allegations relative to violation of Sub-Sections 3 (b), and (d) to be dealt with. Article VI of the ordinance specifically and unequivocally provides that the deposit of any of the prohibited substances in the sewage system is not unlawful unless and until the water superintendent or the sewer superintendent finds that the ordinance is being violated, and serves written notice on the violator providing a reasonable time for the satisfactory correction of the deficiency. Section 2 of Article VI further specifically provides that there is no violation of law unless the person notified continues to deposit the substances in the sewage system after the period of time stated in the notice. There is not even any allegation that these requirements of the ordinance have been fulfilled; thus, the complaint also totally fails to state a cause of action relative to the alleged violations of Article III of the ordinance.”

We do not agree that Article VI provides that the deposit of prohibited substances into the sewage system is not unlawful until the Superintendent finds that the ordinance is being violated. In fact, Article VI deals entirely with enforcement for a violation and sets forth the criminal penalty in event an offender shall continue to violate the ordinance after being advised by the Sewer Superintendent with written notice stating the nature of the violation and providing a reasonable time for the correction thereof. Civil litigation is not dependent upon criminal prosecution and of course there is frequently civil litigation between parties where one has allegedly violated criminal provisions, but has not been prosecuted. It is true that there is no allegation in the complaint to the effect that the Superintendent has served a notice of a violation upon appellee but this does not necessarily mean that no violation has occurred. At any rate, there is nothing in Article VI which provides that even though one deposits prohibited (by the ordinance) substances into the sewage system, such act is not unlawful until notice has been served by the Superintendent.

To return to the case of Carmichael v. City of Texarkana, supra, the case was originally filed in the District Court at Texarkana, wherein complainants sought the abatement of a nuisance alleged to have been created by the discharge of sewage from the sewer system of the City on premises of complainants, and further sought to recover damages caused to complainants thereby. Both the City of Texarkana and certain individuals were named as defendants. The individual defendants demurred and such demurrer was sustained in a decree rendered in May, 1899. The suit remained pending against the City. Subsequently, in 1901, the pleading against the City was dismissed. This case is styled Carmichael v. City of Texarkana, 94 F. 561 (W.D. Ark.). The decree was thereafter appealed to the United States Court of Appeals (Eighth Circuit) and was affirmed, that court finding that, as to the City, there was no evidence of negligent construction or maintenance of the sewer system. As to the individuals, the court held that inhabitants of a city who call upon such city to construct a sewer which the city has the authority to construct and control, and such inhabitants who use the improvement in the way prescribed by law, are not liable jointly with the city for damages which result to third parties. In the trial court opinion, which was left intact by the Court of Appeals, District Judge Rogers stated:

“It does not appear from the complaint that the connections made by the individual defendants with the defendant city’s sewer system were made in violation of any city ordinance or statute of the state, nor will it be assumed in the absence of allegations to that effect.”

The question here presented is not exactly the same as that in Carmichael, but the principle is controlling, i.e., we have here the allegation that Section 3 of the City ordinance was violated by appellee depositing certain substances into the sewer system contrary to the ordinance.

We hold that a cause of action was stated and the court erred in granting a summary judgment to appellee. The judgment is therefore reversed and the cause remanded to the Carroll County Circuit Court (Eastern District) with directions to proceed in a manner not inconsistent with this opinion.

      The ruling was apparently based on the ground that an individual user of the City Sewage System cannot be liable for alleged damage once he discharges an effluent into the municipal sewage system.


author: George Rose Smith, Justice.

text:
    ALLSTATE INSURANCE COMPANY v. EQUITY MUTUAL INSURANCE COMPANY
    74-195
    516 S.W. 2d 389
    Opinion delivered December 9, 1974

      Wright, Lindsey & Jennings, for appellant.

      Laser, Sharp, Haley, Toung & Boswell, P.A., for appellee.
   George Rose Smith, Justice.

In November, 1972, the plaintiff’s decedent, Carrie Lovett, was fatally injured by an uninsured motorist as she was walking across a street in Little Rock. Mrs. Lovett was covered by $10,000 uninsured-motorist clauses in each of two automobile insurance policies: One, a policy issued to Mrs. Lovett by the appellee Equity Mutual upon Mrs. Lovett’s own car and, two, a policy issued by the appellant Allstate upon Mrs. Lovett’s husband’s car. Both policies provided coverage for the named insured and for his or her spouse. Liability being admitted, the only remaining question in the case is whether Equity Mutual is liable for the entire $10,000, as Allstate contends, or the two insurance companies are liable for $5,000 each, as the trial court held. We affirm.

As far as this case is concerned, the two policies are identical. Both contain excess insurance coverage, but counsel for the rival companies agree that excess coverage is not involved here. What is involved is a pro rata provision that is common to both policies and reads as follows:

Except as provided in the foregoing [excess coverage] paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of this insurance and such other insurance.

Allstate argues that Equity Mutual is the primary insurer because Equity Mutual issued the policy upon Mrs. Lovett’s own car. We need not determine whether that argument would have merit if Mrs. Lovett’s car had been involved in the fatal accident, for that is not the fact. At the time of her death Mrs. Lovett was a pedestrian. The pro rata clause contains no language peculiarly applicable to that situation. Instead, the controlling provision limits liability “if the insured has other similar insurance available to him and applicable to the accident.’’ Both policies had that provision; so we do not see why either company should bear the entire loss. That conclusion, upon similar facts, was reached in Box v. Doe, 221 So. 2d 666 (La. App., 1969), cert. den., 254 La. 457, 223 So. 2d 868 (1969). To come to any other conclusion we should have to read into the policies something that is not there.

Affirmed.


author: Lyle Brown, Justice.

text:
    James ALEXANDER v. STATE of Arkansas
    CR 74-92
    516 S.W. 2d 368
    Opinion delivered December 9, 1974

      Stallcup, Bartels & Boling, Court-appointed atty., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, for appellee.
   Lyle Brown, Justice.

Appellant James Alexander was convicted of the sale of a controlled substance (LSD) and sentenced to ten years. He advances five points for reversal which will be enumerated and discussed under separate headings.

Point I. The court erred in denying .appellant’s motion for the Slate to furnish him an independent chemist to make an analysis of the contraband.

Appellant takes the position that he was without funds to hire a chemist to make an independent analysis of the LSD and that he had a constitutional right to have such assistance at the expense of the State. We are cited no precedent to justify such demand. It clearly is not mandated or authorized by statute. A corollary to appellant's request is found in our case of Hale v. State, 246 Ark. 989, 440 S.W. 2d 550 (1969). Hale contended that the trial court erred in refusing to provide him funds with which to employ a private psychiatrist. In holding Hale's contention without merit we pointed out there was no law to support the proposition. To the same effect see Grissom v. State, 254 Ark. 81, 491 S.W. 2d 595 (1973). We point out that a qualified chemist employed by the State Board of Health made the analysis. Her qualifications are not questioned and she is in no way controlled by persons charged with the duty of prosecuting criminal cases.

Point II. The delay between the alleged commission of the offense and the filing of charges was constitutionally detrimental to appellant.

The offense was alleged to have occurred on February 28, 1973, and charges were not filed until July 12, 1973. Our general statute of limitations on filing of felony charges such as the one at hand is three years from the commission of the offense. Ark. Stat. Ann. § 43-1602 (Repl. 1964). A similar contention was made in Beckwith v. State, 238 Ark. 196, 379 S.W. 2d 19 (1964). We there said it was realized that time wears out proof of innocence as well as proof of guilt; nevertheless, the public policy on limitations for filing charges is expressed in the statute. We there said that the record failed to show that the acts of the prosecutor were so arbitrary, unreasonable and unlawful as to deprive Beckwith of due process of law. The same question arose in the case of I United States v. Marion, 404 U.S. 307 (1971). In that case there was a delay of 38 months between the commission of the offense and the returning of an indictment. The Court said the due process clause of the fifth amendment would require dismissal if it were shown at the trial that the pre-indictment delay “caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to obtain tactical advantage over the accused”. Then the court went on to make a point which is apropos to the case at bar:

Appellees rely solely on the real possibility of prejudice inherent in any extended delay; that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment. Events of the trial may demonstrate actual prejudice, but at the present time appellees' due process claims are speculative and premature.

In the case at bar it was clearly evident that no harm came to the appellant's defense as a result of the delay.

Point III. The trial court erred in permitting appellant’s wife to be cross-examined about other offenses allegedly committed by appellant.

Appellant says “the State attempted to place before the jury other offenses by asking the appellant’s wife if marijuana and other narcotics were not present in their house trailer many times and if she had not purchased or bought capsules for her husband to put dope in”. Evidence was produced by the State to the effect that narcotics were in fact in the house trailer and that the wife had obtained empty capsules to be filled with LSD. It was certainly permissible to cross-examine the witness as to felonious offenses of which she may have had knowledge or in which she may have participated. The subject matter went to her credibility as a witness. In Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225 (1969), appellant’s wife was questioned on cross-examination about the number of times she had testified in court. In affirming the case we pointed out that wide latitude is allowed on cross-examination to elicit facts impeaching the credibility of a witness. “The scope of this examination is largely within the discretion of the trial court.”

Point IV. The court erred in permitting the cross-examination of appellant about arrests on other crimes.

Appellant asserts as error under this point the fact that he was asked on cross-examination, “is that the first time you have been arrested?” Appellant takes the question out of context and also misquotes it. The prosecuting attorney inquired: “Now when were you arrested on these drug charges?" The dispute between the prosecutor and the witness concerned the exact date upon which appellant was arrested on the charges for which appellant was being tried. Appellant contended that he was not arrested until October l6. Upon objection being made, the prosecutor made it clear that he was trying to ascertain the exact date of the arrest of appellant on “this charge”. The trial court instructed the jury that evidence of any other arrest was not admissible. The point is without merit.

Point V. The court erred in permitting continued cross-examination of appellant concerning other crimes after appellant denied the crimes.

We have examined the testimony upon which the point is based. Appellant was asked on cross-examination if, on January 23 past, he sold two ounces of marijuana to W. D. Blount; if he received thirty dollars for the marijuana; if on the same day he sold two ounces of marijuana to Ken McKee; if he dealt in drugs with Ernie Epley or with Norman Hunter; if he did in fact “push drugs” for Pat Beaverson; if he sold mescaline out of Mobile Home No. 16; if he sold some LSD on February 28 past; if he sold drugs on March 1, 1973, to David Kem; if he bought empty capsules at the Indian Mall Pharmacy to be used for packing mescaline; if he sold cocaine from the trailer; and if he kept drugs in the mobile home in a drawer in the kitchen. All of the questions brought negative answers. The prosecutor did not argue with the witness about his answers. We are unable to say the trial court abused its discretion in permitting the questions to be propounded.

Affirmed.