author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    Michael Brett MOORE and William Roger BONNELL v. STATE of Arkansas
    CR 78-145
    576 S.W. 2d 211
    Opinion delivered February 5, 1979
    (In Banc)
    [Rehearing denied February 26, 1979.]

      McArthur & Lassiter and Solloway & Jackson, P.A., by: Lanny K. Solloway, for appellants.

      Bill Clinton, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

The trial court upheld the search of appellants’ U-Haul trailer on the basis of consent and sentenced appellants to five years each for violating the Uniform Controlled Substances Act, Acts 1971, No. 590. The issue on this appeal is whether the evidence is sufficiently clear and positive to sustain the State’s contention that appellants consented to the search.

The record shows that the burglar alarm went off at the Toll Manufacturing Company, 3700 Shackleford Road, Little Rock, about 4:30 a.m. on August 11, 1976. Two Pulaski County deputy sheriffs answered the burglar alarm. They were let into the plant gate by Terry McGuire, the plant superintendent. After the officers had been unable to find any exterior evidence of a break-in, they took off to investigate appellants who were driving their automobile on a public road some 100 to 200 yards behind the plant on 36th street.

Sergeant Rocky Woods testified that he was driving behind the Toll Manufacturing Company’s building when he saw the lights on appellants’ vehicle come on then go off. After some discussion witK Sergeant Ledbetter they jumped back in their cars, and raced around and stopped appellants. Sergeant Woods pulled in front of appellants’ vehicle and Sergeant Ledbetter pulled along the side of appellants’ vehicle for purposes of blocking it. After ordering appellants out of the vehicle and placing them under arrest for burglary, Sergeant Woods nade inquiry as to what was in the trailer. He states that in answer to his question to appellant Moore as to whether Moore cared whether the officer looked in the trailer, that appellant Moore stated: “No, not at all” and handed him the keys to the Slaymaker lock that secured the trailer. In further cross-examination he stated that he and Ledbetter never got out of their cars before taking off to investigate appellants. It was also established that the burglar alarm turned out to be a false alarm. Although Sergeant Woods had consent to search forms in his vehicle, he did not bother to get one signed. Sergeant Woods stated that when he stopped the appellants he had *uvised them to turn the ignition off, remove the keys and get out of the car.

Sergeant Ledbetter testified that after he saw the lights on appellants’ vehicle come on, he never saw them go off. He says that when Officer Woods asked if he could look in the trailer, that appellants handed him the keys. He states that appellants wer*: under arrest at the time. On cross-examination lie- admits that he and Sgt. Woods did not know that a burglary had in fact been committed and that all of the officers had answered many false alarms in the past. Their only reason for arresting appellants was a presumption from the burglar alarm. Sgt. Ledbetter was not sure whether appellants had the keys in their hand when Sgt. Woods asked to look in the trailer or whether appellants reached back in the car and took them from the ignition.

Robert J. Raley, Sr., plant manager for Toll Manufacturing Company, stated that Officers Woods and Ledbetter had made their periphery search of the outside of the building and were standing on the porch of the office ready to go search the inside of the building when Terry McGuire noticed a car turning around on 36th Street. He suggested to the officers that someone that was involved in the burglary was over there.

Terry McGuire, the plant superintendent, testified that he was the first person to call the officers’ attention to the appellants’ car. He says the lights were not blinked off and or or anything like that. The car was in a turn around spot on 36th Street when he saw it.

Appellant Moore testified that he was advised by Sgt. Woods that they were under suspicion of burglary, that Sgt. Woods had a right to search the vehicle and that Sgt. Woods demanded the key. Moore says that, at the time, he was outside the car but the car was still running. When Officer Woods told him to give him the key, he replied that he did not have the keys and that Sgt. Woods reached in the car, turned the ignition off and took the key. He states that the officers never asked permission to look in the trailer.

Appellant Bonnell says that he was told to stay in front of the car which he obeyed. He could not quite comprehend everything that was said but after hearing the officers making some statement to the effect that they had a right to search, Officer Woods reached in the car and took the keys.

We have consistently held that when the State relies upon a consent to make a search the burden is upon the State to show such consent by “clear and positive testimony,” Hock v. State, 259 Ark. 67, 531 S.W. 2d 701 (1976), White v. State, 261 Ark. 23-D, 545 S.W. 2d 641 (1977) and Rodriquez v. State, 262 Ark. 659, 559 S.W. 2d 925 (1978). To permit a consent to search to be shown by any less quantum of proof would permit the fact finder to issue in effect an ex post facto search warrant. Upon the record before us, we hold that the State has not sustained its burden of proof to show that the search of appellants’ U-Haul trailer was with their consent, State v. Osborn, 263 Ark. 554, 566 S.W. 2d 139 (1978).

The State to sustain the verdict suggests that the search was proper under the automobile exception set out in Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970). We disagree. Under the facts here, the officers, being informed of nothing more than a mere possibility that a burglary might have been committed, could not have had “reasonable cause to believe that [appellants] had committed a felony.” Without reasonable cause to believe that appellants had committed a felony, the officers had no authority to arrest appellants, Ark. Crim. Proc. Rule 4.1, and consequently, no authority to make a search incident to an arrest, Ark. Crim. Proc. Rule 12.4(b). See also, Sibron v. State of New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968).

Reversed and remanded.

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

John A. Fogleman, Justice,

dissenting. I agree that the search made in this case cannot be upheld as an automobile search, or as a search incident to a lawful arrest. It appears to me that it was too broad in scope and extent to be justified as incidental to the arrest of appellants. I do not agree that there was no probable cause for arrest, however. I disagree on the question of consent to search and I draw inferences from the testimony that are decidedly different from those drawn by the majority. I do not think that the trial court’s holding can be said to be clearly against the preponderance of the evidence, as we must say, in order to reverse that holding. State v. Osborn, 263 Ark. 554, 566 S.W. 2d 139. I would also point out that, in order to be clear and positive, it is not necessary that evidence be undisputed. State v. Sherrick, 98 Ariz. 46, 402 P. 2d 1 (1965), cert. den. 384 U.S. 1022, 86 S. Ct. 1938, 16 L. Ed. 2d 1024 (1966). Even if we equate “clear and positive” testimony with “clear and convincing evidence” (which I do not), the fact that the evidence is disputed is not determinative of the question. Kelly v. Kelly, 264 Ark. 865, 575 S.W. 2d 672 (1979). We said in Kelly that the latter degree of proof lies somewhere between a preponderance of the evidence and proof beyond a reasonable doubt, and is simply that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established.

If we made appropriate allowances for the superior position of the trial judge in evaluating the credibility of the witnesses, it is clear to me that the “clear and positive” test was met and that we cannot say that the finding of the trial court was clearly against the preponderance of the evidence.

Both police officers arrived at Toll Manufacturing Company within a few minutes after the burglar alarm was first sounded. Ledbetter was only a minute or two behind Woods. Woods testified that when he saw the car lights come on, the burglar alarm was still audible and that, as he came around the building, he saw the lights go off. He said that, after a period of about 30 seconds, he saw the lights come on again, in the same spot, but then their movement indicated that the vehicle was moving backwards. According to his estimate, the car was somewhere between 100 and 300 yards from the Toll Building, but on the perimeter of the Toll parking lot. Until he arrived at the vehicle he thought the car was on the parking lot. Woods said that he called Ledbetter’s attention to these lights. This officer said that, since he felt that the occupants of the car had caused the burglar alarm, he and Ledbetter went immediately to prevent this vehicle from leaving. Woods immediately noticed that the automobile bore an out-of-state license and that a U-Haul trailer was attached to it. The trailer was padlocked. Woods said that he first asked the driver and his companion to step out of the car and asked for identification. He stated that after they gave him their driver’s licenses, he advised appellants that he had reason to believe that they were involved in a burglary at the Toll Manufacturing Company and that he was placing them under arrest for burglary. Woods testified that he advised appellants of their rights, and then asked them what they had in the trailer. He stated that one of them (Moore, he believed), answered that it was dental equipment he was taking to his brother. According to Woods, after Moore explained further, he asked, “Well, do you mind if I see in the dental equipment you have in the trailer because we have had the burglary alarm going off” and Moore responded, “Here’s the keys, go ahead and look” and handed him the keys with which Woods unlocked the trailer.

Sgt. Ledbetter said that, upon arrival at the Toll Manufacturing Company premises, he and Woods proceeded to the building to check it, and as they “started up,” he observed the headlights of the automobile come on and saw that the vehicle started moving east at a slow speed. He did not see the lights come on and go off. He said that he never did go all the way around the building and that Woods was “spotlighting” the building to see if he could find an “entry hole” in it.

Ledbetter said that the officers identified themselves when they stopped appellants and that appellants furnished identification upon request and were very cooperative. He corroborated the testimony of Woods as to the advice given to appellants, the request for permission to look inside the trailer and the obtaining of the keys. He said that he was standing up in front of the car, but that he heard Woods say something about a burglary and heard something said about dental lab chairs or dental equipment. He said that the boxes in which the marijuana was found bore labels reading, “Four chairs per box. ” Ledbetter said that he suspected appellants of burglary because of the suspicious movements of the vehicle at a scene where a burglar alarm was going off about 200 yards away and, from past experience, he knew burglars used U-Haul trailers to haul away their loot.

Robert J. Raley, Sr., plant manager at Toll Manufacturing Company, was alerted and came to the plant after the officers and Terry McGuire, the plant superintendent, had arrived. He felt sure that an outside inspection of the building, which revealed that no doors were open or windows were broken, had been made, but he did not observe it. He did not think the officers had been at the scene long enough to check every lock, window and door to determine whether someone had been in the place. He said that preparations were being made for the party to go inside the building when the car was turning around and that he and McGuire told the sheriff’s deputies that maybe someone that had been involved in the burglary was over there. He said that the officers left immediately. He stated that there was nothing unusual about the officers stopping a car leaving a place from which its occupants could have had access to the building.

McGuire said that the officers had driven around the building and made a visual check and reported that they did not find any visible evidence of open doors or anything showing visible entry, but that nobody had really made a check of the plant before Officers Woods and Ledbetter left, and that he and Raley had to await the arrival of another officer to come and make a visual check. McGuire did not see the lights blink on and off, but he had been looking in another direction and happened to look toward the car and saw it with the lights on. It appeared to him that the car was “backing out” because he saw the “back-up” lights on it.

The evidence that the movements of the automobile on the perimeter of the parking lot while the burglar alarm was still sounding and at a time when the check of the building had not been completed was a basis for the officers to reasonably suspect that the occupants of the automobile were committing, or had committed, a felony. Under these circumstances it was proper for the officers to stop appellants and obtain identification and determine the lawfulness of their conduct. Rule 3.1, Arkansas Rules of Criminal Procedure. The officers would have been derelict in the performance of their duties, if they had not done so. To say the very least, the officers had reasonable cause to believe that the occupants of the vehicle were witnesses to the offense of burglary, a felony, and had the right to obtain identification of these persons and to ascertain what information they had about the burglary. Rule 3.5, Arkansas Rules of Criminal Procedure. When the officers saw that the out-of-state automobile was towing a U-Haul trailer, they had reasonable cause to believe that the occupants had committed the felony of burglary, knowing that such a trailer was commonly used by burglars to conceal and haul stolen property. See Sanders v. State, 259 Ark. 329, 532 S.W. 2d 752; Rowland v. State, 263 Ark. 77, 561 S.W. 2d 304; Perez v. State, 260 Ark. 438, 541 S.W. 2d 915; Williams v. State, 258 Ark. 207, 523 S.W. 2d 377; Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409, Wickliffe v. State, 258 Ark. 544, 527 S.W. 2d 640. They had the right to arrest these suspects. Rule 4.1, Rules of Criminal Procedure.

Although appellants presented a horror story about the actions of the officers, the trial court resolved the question of credibility against them, and this court is bound by that determination. State v. Osborn, 263 Ark. 554, 566 S.W. 2d 139.

I would affirm the judgment.

I am authorized to state that the Chief Justice joins in this opinion.

       Not all jurisdictions accept the proposition that any more than a preponderance of the evidence is required to establish consent to search. See, e.g., People v. James, 19 Cal. 3d 99, 137 Cal. Rptr. 447, 561 P. 2d 1135 (1977); State v. Buckner, 223 Kan. 138, 574 P. 2d 918 (1977); U.S. v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). We adopted the “clear and positive” degree of proof in Hock v. State, 259 Ark. 67, 531 S.W. 2d 701. While there is some question about this degree of proof being required in every case where justification for a warrantless search is based upon an allegation of consent, I think that it is certainly the proper rule when the defendant is under arrest when the “consent” is given, or when the evidence shows no more than acquiescence to an assertion of lawful authority by the searching officers. See Rodriquez v. State, 262 Ark. 659, 559 S.W. 2d 925; Hock v. State, supra; White v. State, 261 Ark. 23-D, 545 S.W. 2d 641. Thus, I consider the “clear and positive” rule to be applicable to this case.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Kelly M. RICKETTS et al v. Eugene V. RICKETTS et al
    78-155
    576 S.W. 2d 932
    Opinion delivered February 5, 1979
    (In Banc)
    [Rehearing denied March 12, 1979.]

      Northwest Arkansas Legal Services, Inc., by: Marcia Me Ivor, for appellants.

      Davis, Douglas & Penix and G. H. Burke, Regional Atty., Region I, for appellees.
   Frank Holt, Justice.

Appellants, 11 1/2 year old Kelly, 10 year old Laqueta, 9 year old Patricia, and 7 year old Eugenia, are the four daughters of appellee Eugene Ricketts. The appellants were the subjects of a dependency-neglect proceeding in a de novo hearing in circuit court. That court reversed the juvenile court’s order of custody and directed that the children be removed from their foster home and their custody vested in appellee Ricketts. Subsequently, the court denied appellants’ motion to vacate and stay the order of custody. Appellants contend for reversal that (1) they were denied due process in that they had no notice, opportunity to be heard nor independent counsel, (2) our statutory requirements for notice, hearing and appointed counsel were not followed, and therefore (3) the circuit court’s denial of appellants’ motion to vacate was error.

Mr. Ricketts had received custody of his children in 1975 when he and their mother were divorced. A petition seeking emergency custody of appellants was filed in juvenile court by appellee Arkansas Social Services while appellants’ father was incarcerated on a charge of DWI in April, 1976. Prior to that time, appellants had been voluntarily placed in foster care three times within five years as a result of appellee’s marital problems with his wife, Alberta, who has since abandoned her family. On April 2, 1976, a hearing was held at which time Mr. Ricketts and Arkansas Social Services were present and each represented by counsel. The juvenile court ordered the proceedings recessed and that Mr. Ricketts undergo treatment for alcoholism at a local guidance center. The appellant children were ordered to remain in the custody of appellee Arkansas Social Services, with it having the right to place appellants in a suitable home or institution of their choice. It appears they were placed in a foster home. Mr. Ricketts was given the right to petition the court for return of the children’s custody if and when he submitted to treatment and was pronounced cured of alcoholism. In Agusut, 1976, appellee Arkansas Social Services petitioned the juvenile court to have appellants declared dependent-neglected, pursuant to Ark. Stat. Ann. § 45-401 et seq. (Repl. 1977), alleging that Mr. Ricketts had refused to submit to treatment for alcoholism, had been incarcerated numerous times since the court’s earlier order and had not demonstrated that he could properly care for his children. Permanent custody of them was sought with the right to place them in a home or institution of its choice. Their custody was granted to appellee Arkansas Social Services with the right to place them in suitable foster care and petition the probate court for guardianship with the right to consent to adoption. Appellants were again placed in a foster home. On appeal to the circuit court, Ricketts and the Arkansas Social Services appeared in person and by separate attorneys with all agreeing that it was not in the best interest of the appellant children to be present. After presentation of evidence in a de novo hearing, the court, on March 1, 1978, notified counsel that the judgment of the juvenile court was reversed, that Arkansas Social Services’ petition for permanent custody was denied and the appellant children were to be returned to their father, Mr. Ricketts. Appellants, upon learning that they were to be removed from the protective custody of their foster home, sought the aid of present counsel. Their counsel moved the court to vacate its judgment on the grounds that appellants had no guardian ad litem or other representative appointed or appearing for them in the action and neither had they been heard by the court. They asked to be allowed to respond, for representation of their legal interest, to be heard and to adduce proof. Appellants, Kelly, age 11 1/2, Laqueta, age 10, and Patricia, age 9, filed affidavits citing occasions, when they were in their father’s custody, of physical abuse, drunkenness, and neglect, improper conduct in their home by their father and his friends and expressions of fear of him. The court denied the motion to vacate and stay the judgment and found that the appellants’ interests, although they were not present nor represented by counsel, were sufficiently represented by appellee Arkansas Social Services. Hence this appeal.

In summary appellants argue that the adjudication of their rights without notice to them and an opportunity to be heard or represented by independent counsel was a denial of due process. Numerous cases are cited. Principal authorities relied on are: In re Gault, 387 U.S. 1 (1967); Roe v. Conn, 417 F. Supp. 769 (M.D. Ala. 1976); Ark. Stat. Ann. §§ 45-413, 45-425 and 45-427. It is argued that Gault, although a delinquency proceeding, and Roe, a neglect proceeding, are applicable in this dependency-neglect proceeding. Also, the appellant children, who were named in the custody petition, were not notified of the proceedings as required by §§ 45-423, 45-425, 45-427, and 45-428. Appellees respond that the cited cases and our statutes are not applicable to a dependency-neglect proceeding as here. Further, the children were adequately represented on the parens patriae theory; namely, the Arkansas Social Services, a state agency and its attorney, whose interests were in common and not adverse to those of the appellant children. In the circumstances, we do not reach these respective contentions. Suffice it to say, in view of the ages of the children and their affidavits, we hold that the judgment should be reversed and the cause remanded in order to accord them an opportunity to be present and heard with counsel upon their intervention. By this procedure, all constitutional requirements as asserted by appellants will be fully met. See State ex rel. Juv. Dept. of Multnomah Cty. v. Wade, O. App., 527 P. 2d 753 (1974); 9 U.L.A., Uniform Juvenile Court Act, § 26 (a) at p. 422, adopted by the National Conference on Uniform State Law and the American Bar Assn. in 1968; and cf. Vilas v. Vilas, 184 Ark. 352, 42 S.W. 2d 379 (1931).

The issue as to the consent to adoption between the Social Services and Mr. Ricketts, the father, is deemed concluded since it does not appeal. The court, however, following a hearing on appellants’ intervention, is not precluded from making such disposition of their custody as is deemed appropriate and beneficial for the children.

Reversed and remanded.


text:
    Billy Neal HITT v. Imogene Hitt MAYNARD
    78-234
    576 S.W. 2d 211
    Opinion delivered February 5, 1979
    (Division II)

      C. W. Knauts, for appellant.

      Guy Brinkley, for appellee.
   Frank Holt, Justice.

Appellee was granted a divorce from appellant. The divorce decree recited that the court adopted a property settlement between the parties including appellant’s agreement to pay $75 a week as support for their 6 year old child. Subsequently, appellant sought a reduction of child support to $37.50 per week, asserting a material change of circumstances and his inability to continue making the agreed payment. The court found, as a matter of law, that he was without authority to modify the child support contract. Appellant asserts this was error and we agree.

A contract between divorced parties with regard to their children’s support, whether or not adopted by the court, is not binding upon the court, and therefore the agreement is subject to modification as the circumstances justify without the parties’ consent. Reiter v. Reiter, 225 Ark. 157, 278 S.W. 2d 644 (1955); Lively v. Lively, 222 Ark. 501, 261 S.W. 2d 409 (1953); Johnston v. Johnston, 241 Ark. 551, 408 S.W. 2d 885 (1966); Collie v. Collie, 242 Ark. 297, 413 S.W. 2d 42 (1967); and Williams v. Williams, 253 Ark. 842, 489 S.W. 2d 774 (1973).

Here appellee argues, however, that this issue is mooted due to the fact that the chancellor ruled the appellant’s circumstances or conditions had not sufficiently changed to justify withholding enforcement of the agreed child support. The record before us does not contain any evidence to justify this argument nor does the decree from which this appeal comes contain the ruling upon which the appellee relies. However, it very well may be upon remand the chancellor may have a basis from the evidence to justify his ruling.

Reversed and remanded.

We agree: Harris, C.J., and Fogleman and Hickman, JJ-


author: Darrell Hickman, Justice.

text:
    MARION COUNTY RURAL SCHOOL DISTRICT NO. 1 v. Phillip Leon RASTLE
    78-190
    576 S.W. 2d 502
    Opinion delivered February 5, 1979

      Donald J. Adams, of Adams, Covington & Younes, for appellant.

      Frank H. Bailey and Richard S. Paden of Bailey & Paden, for appellee and cross-appellant.
   Darrell Hickman, Justice.

These parties were before us in a previous case, Rastle v. Marion Co. Rural Sch. Dist., 260 Ark. 740, 543 S.W. 2d 923 (1976). Rastle, as a school teacher, had sued two school districts seeking a mandamus to require them to pay his teacher’s salary, alleging a breach of contract. We decided that an action for mandamus and one for damages could not be jointly tried and stated that an election of remedies must be made.

Rastle apparently made his election and filed another action in the Marion County Chancery Court seeking payment for two years pursuant to his teacher’s contract, for the school years 1975-1976 and 1976-1977. He joined Marion County Rural School District No. 1 and Oakland School District No.. 2 as party defendants because the original district, Marion County Rural School District, had been divided into these districts on July 18; 1975.

The trial judge found Rastle’s one-year contract for the school year 1974-1975 was automatically renewed due to Marion County Rural School District’s failure to give written notice of nonrenewal and, therefore, Rastle was entitled to his contractual salary for the 1975-1976 school year, less some $2,185.00 which he had earned in mitigation of damages. The trial judge held Rastle was not entitled to any further relief. Oakland School District No. 2, a new district created after the school year 1974-1975, was found to have no liability. Marion County Rural School District No. 1, the appellant, did not seek any cross relief against Oakland from the trial court or appeal from the judgment as it related to the Oakland School District.

Marion County Rural School District No. 1 brings this appeal and argues that the trial court was wrong in holding Rastle’s contract was automatically extended one year because no notice of nonrenewal was given by the district to Rastle.

Rastle argues on cross-appeal the trial court erred in holding the school district was liable for only one year since he has never received written notice of nonrenewal for the school year 1975-1976 or for the school year 1976-1977. Consequently, Rastle argues that the court was in error and should have awarded him compensation for the latter school year.

We find no error by the court and affirm the judgment on appeal.

Rastle had a one-year contract with the Marion County Rural School District to teach at a one-room school house located at Oakland for one year, school year 1974-1975. Arkansas law clearly requires that a school district must give written notice to a school teacher no later than 10 days after the end of the school year if a contract is not to be renewed. Ark. Stat. Ann. § 80-1304(b) (Supp. 1977) provides in part:

. . . Every contract of employment hereafter made between a teacher and a board of school directors shall be renewed . . . unless during the period of such contract or within ten (10) days after the termination of said school term, the teacher shall be notified by the school board in writing . . . that such contract will not be renewed for such succeeding year ....

It is agreed by all parties that this notice was not given to Rastle. The trial court held that under the statute the school district was liable to pay Rastle a salary for the succeeding year. We agree with the trial court that the contract was extended by operation of law for the succeeding year and the district should have been required to pay Rastle.

The appellant’s argument avoids the 10 day notice statute and on examination is found to be without merit.

First, the appellant argues that Rastle did not file his teacher’s certificate with the county school supervisor as required by law and, therefore, was not entitled to be paid. See Ark. Stat. Ann. § 80-1304(b) (Supp. 1977). Rastle did file his certificate in July, 1975. Ark. Stat. Ann. § 80-1227 (Repl. 1960) provides that the filing of a teacher’s certificate at any time before final judgment is a defense to any action against any county treasurer; county supervisor, or superintendent of schools based on Ark. Stat. Ann. § 80-1304 (Repl. 1960 and Supp. 1977).

Next, the appellant argues that Rastle’s certificate was for secondary education, he taught primary education, and no vacancy was available for him as a secondary teacher for the school year 1975-1976; since he could not be hired, the district should not be required to pay him. This argument ignores the fact that Rastle did teach elementary education, without objection, for the prior year, was paid for his efforts and there was no objection at any time to his qualifications. The argument essentially ignores the clear import of Ark. Stat. Ann. § 80-1304(b) (Repl. 1960), and the fact that it was the school district’s obligation to terminate the contract.

Finally, the appellant argues that it should not be legally liable because it was not in existence as a legal entity at the time liability accrued to Rastle.

After Rastle had taught school for one year, after the expiration of the period of time in which he should have been notified that his contract would not be renewed, and after he had filed his certificate with the county supervisor, two school districts were formed from the Marion County Rural School District, Rastle’s employer. One. school district was designated Marion County Rural School District No. 1, the appellant; the other school district was Oakland School District No. 2. According to the evidence at the trial court, an order of dissolution and division was entered as of July 18, 1975. Assets and liabilities were divided. Each district received a right to state benefits on a proportionate basis that would accrue to them according to geographical area. The one-room school house located at Oakland, where Rastle taught, is actually located in the Oakland School District No. 2 as it exists today.

The trial court found that Oakland was not liable because it did not exist as a legal entity at the time Rastle should have received his 10 days’ notice for nonrenewal. Since no appeal was taken from this finding, nor any cross action taken by the appellant against the Oakland School District for contribution, we cannot say the court’s action in this regard was incorrect. The appellant; which was a legal entity before, simply reduced in size, was found to be liable. We cannot say this finding was erroneous.

Rastle argues on cross-appeal that the trial court should have granted him judgment for his contractual salary for the school year 1976-1977. His argument is that he has never received statutory notice of nonrenewal and that contractual liability under the statute continues until he receives such notice. He also contends that the district’s failure to give written notice of nonrenewal is a violation of the due process clause of the United States Constitution. Rastle’s constituttional argument implies that he has a “property” interest in his continued employment.

(T)he Constitution does not require opportunity for a hearing before the nonrenewal of a nontenured teacher’s contract, unless he can show that the decision net to rehire him somehow deprived him of an interest in”liberty“or that he had a”property“interest in a continued employment, despite the lack of tenure or a formal contract.

Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972).

Rastle offered no evidence to prove that he had a property interest which would raise the due process issue. Formal teacher tenure is not provided by Arkansas law. Nethercutt v. Pulaski County Special School District, 251 Ark. 836, 475 S.W. 2d 517 (1972). Nor does Ark. Stat. Ann. § 80-1304(b) create an expectation of continued employment. See Cato v. Collins, 539 F. 2d 656 (1976).

Absent constitutional considerations, notice that is required under Ark. Stat. Ann. §80-1304(b) only goes to the succeeding school year. Rastle conceded he had actual notice that his contract would not be renewed sometime during the summer of 1975 and that satisfies due process of law.

Consequently, we find Rastle’s argument without merit and affirm the judgment.

Affirmed.

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


text:
    Earl McKNIGHT v. ARKANSAS STATE HIGHWAY COMMISSION
    78-230
    576 S.W. 2d 209
    Opinion delivered February 5, 1979
    (Division II)

      W. Q. Hall, for appellant.

      Thomas B. Keys and Philip N. Gowan, for appellee.
   Darrell Hickman, Justice.

The summary decree granted in this case by the chancellor must be reversed because material questions of fact remain unresolved. It was incumbent upon the appellee in this case, the Arkansas State Highway Commission, to show that there was no issue of fact. Robinson v. Rebsamen Ford, Inc., 258 Ark. 935, 530 S.W. 2d 660 (1975).

The Highway Commission filed suit in the Chancery Court of Madison County seeking a mandatory injunction against Earl McKnight, Jr., the appellant. McKnight owns property on which is located a commercial enterprise; it is adjacent to a paved state highway, State Highway No. 68-3, in Huntsville, Arkansas. McKnight had been asked to make an application for an access driveway to his property and in conjunction with that application to build a proper and approved access to the highway. McKnight has frontage on the highway of some 250 feet or more, the exact frontage being in dispute. McKnight conceded that he had refused to apply for the permit, objected to the injunction and raised several constitutional questions.

The Highway Commission in its petition simply alleged that it had no adequate remedy at law and would suffer irreparable harm if the injunction were not granted. McKnight denied those allegations, specifically stating that only conclusions had been alleged. The Highway Commission moved for summary decree and, according to the pleadings, recited that Highway Commission regulations required adjacent owners to have properly approved access and that its only remedy at law is criminal in the nature of a fine of not less than $5.00 nor more than $100.00. Ark. Stat. Ann. § 76-201.5 (Repl. 1957).

We agree with McKnight that there are only general allegations of irreparable harm and an inadequate legal remedy which are not supported by adequate proof. McKnight has controverted these allegations by stating that he has always used his property adjacent to the highway without any danger to the public, and that because his property is level with the highway he should not be required to build an access.

The chancellor should not have granted a summary decree in view of the disputed facts that exist. The fact that McKnight refuses to apply for a permit, along with general allegations of inadequate remedies and irreparable harm, without proof, do not warrant such action.

The Highway Commission in this case sought a remedy that is certainly one of several possible remedies. In Hickinbotham v. Corder, 227 Ark. 713, 301 S.W. 2d 30 (1957), cert. denied 355 U.S. 841, 78 S. Ct. 61, 2 L. Ed. 2d 48 (1957), we discussed the conditions that must exist before an injunction can be granted where legal remedies of a criminal nature exist. First, it must be shown that the remedy at law is inadequate and incomplete to affect relief. Second, it must be shown that an injury of a public nature exists that would warrant a chancery court assuming jurisdiction for purposes of granting an injunction.

We find these two conditions have not been met in this case so as to warrant a summary decree.

Reversed and remanded.

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


text:
    STATE of Arkansas v. Gary Lee BROWN
    CR 78-164
    Substituted Opinion on Denial of Rehearing delivered March 19, 1979
    (Division II)

      Bill Clinton, Atty. Gen., by ‘.Joyce Williams Warren, Asst. Atty. Gen., for appellee and cross-appellant.

      Pearce & Robinson, for appellant and cross-appellee.
   Darrell Hickman, Justice.

Gary Lee Brown was convicted of selling an obscene film in violation of Ark. Stat. Ann. § 41-3578, et sequentes (Repl. 1977), and fined $1,000,00.

Brown appeals alleging he was improperly charged with a violation of that statute which was repealed by Act 464 of 1977 (Ark. Stat. Ann. § 41-3501, et seq.). We agree with Brown’s argument in this regard.

The State on cross-appeal alleges the trial court improperly instructed the jury. We also agree with this argument. The State properly perfected its appeal by lodging the record within 60 days after filing a notice of appeal as required by Rules of Crim. Proc., Rule 36.10 (1977).

There is no contention that the film that Brown sold was not obscene. The argument is whether the statute Brown was charged with violating was repealed by a comprehensive obscenity law enacted in 1977.

The General Assembly, by Act 464 of 1977, passed legislation titled, “An Act to Establish a Comprehensive Obscenity Law for the State of Arkansas.” Part of the prohibited conduct in that Act relates to the sale of obscene material. Section 2, Subsection (8), provides:

“Promote” means to produce, direct, perform in, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, or advertise, for consideration, or to offer or agree to do any of these things for consideration.

Violation of Act 464 is a class B misdemeanor for which the punishment is a fine not to exceed $500.00 or a sentence not to exceed 90 days.

The statute Brown was charged with violating reads:

... It shall be unlawful for any person knowingly to exhibit, sell, offer to sell, give away, circulate, produce, distribute, attempt to distribute or have in his or her possession any obscene film.

Violation of this law is a felony and is punishable by a fine not to exceed $2,000.00 or imprisonment for not less than one, nor more than five years, or both. Ark. Stat. Ann. §§ 41-3578 and 41-3580.

Clearly both laws prohibit one from selling an obscene film and cannot be reconciled. Since Act 464, which includes a repealing clause which repeals all laws or parts of laws in conflict therewith, was passed after the statute under which Brown was convicted, it repeals that part of Ark. Stat. Ann. § 41-3578 which deals with selling obscene films.

We recently held that Act 464 of 1977 did not repeal that portion of these statutes (Ark. Stat. Ann. § 41-3578, et seq.) which might relate to showing an obscene film where there was no consideration paid. Buck v. Steel, Judge, 263 Ark. 249, 564 S.W. 2d 215 (1978). Act 464, as we have referred to herein, prohibits promotion only where consideration is involved. The Arkansas statute, which Brown is accused of violating, does not mention consideration.

Consequently, Brown was improperly charged and convicted, and, therefore, the judgment is reversed and dismissed.

The State argues in its cross-appeal that the trial judge improperly instructed the jury regarding knowledge. Both the State and Brown offered instructions on “knowingly”, that is, the knowledge that one must have to be guilty of violating the law. The trial court rejected both offered instructions and instead gave an instruction based on knowledge contained in Ark. Stat. Ann. § 41-203(2) (Repl. 1977). That instruction is as follows:

A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

The State argues this was error, not only because of the content of the instruction, but because this definition of “knowingly” is to be used only in connection with the criminal code, Ark. Stat. Ann. § 41-203 (Repl. 1977). Instead, the State offered this instruction:

The Defendant is charged with knowingly selling an obscene film. The State must prove beyond a reasonable doubt that the Defendant, had knowledge of the film in issue. It is not necessary that Defendant be shown to have actually seen the film, but only that the Defendant knew the nature and character of the film. It does not matter that the Defendant did not believe the film was obscene. If the Defendant knew the nature and character of the film, that is, knew that it was sexually explicit and contained descriptions or depictions of sexual conduct, then the requirement of knowledge would be satisfied. [Emphasis added.]

This instruction was improper because the emphasized language could be misleading to a jury. It might leave the implication with the jury that the matter would not have to be obscene.

The State offered another instruction as an alternative instruction based on knowledge as defined in Ark. Stat. Ann. § 41-3581 (g). That instruction, taken almost verbatim from the statute, would have been the proper instruction to be given by the court. The reason it should have been given is because this definition of “knowledge” was to be applied to prosecutions for violation of Ark. Stat. Ann. § 41-3578.

This was a pre-criminal code prosecution and since there could be others for this same offense, we have attempted to clarify the situation for the correct and uniform administration of criminal law.

Reversed and dismissed.

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


author: PER CURIAM

text:
    Josephine Louise LADD v. Lon H. LADD, Sr.
    78-142
    576 S.W. 2d 178
    February 5, 1979

      Bass Trumbo of Kincaid, Home & Tmmbo, for appellant.

      Charles Hanks and Thomas Pearson, Sr., of Pearson & Pearson, for appellee.
   PER CURIAM

Our attention has been called to deficiencies in the abstracting of the record in this case, which have arisen because of a misunderstanding of the responsibility for abstracting certain portions of the record which appear to be pertinent to a de novo review in this chancery case. The abstract is not flagrantly deficient and affirmance for noncompliance with the rule would be unduly harsh. Appellant’s attorneys are allowed 30 days within which to file a substituted abstract and brief pursuant to Rule 9 (e) (2) of the Rules of the Supreme Court, which shall include, but not necessarily be limited to, an abstract of any and all agreements between the parties which are pertinent to trial de novo on appeal. Appellee is allowed 21 days within which to revise or supplement his brief. The expense of the substituted brief of appellant and of any revision or supplement to appellee’s brief made necessary by the substituted abstract and brief shall be borne by appellant’s attorneys. When these briefs have been filed, the case will be set for oral argument in banc.


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

text:
    Ardia V. McCREE v. STATE of Arkansas
    CR 78-227
    Motion for Rule on Clerk granted February 5, 1979.
   Per Cruiam.

Motion for Rule on Clerk to lodge transcript is granted.

John A. Fogleman, Justice, concurs.

Darrell Hickman, Justice, dissents.

John A. Fogleman, Justice,

concurring. I join in the granting of this motion solely because appellant has been sentenced to life imprisonment without parole.

I am authorized to state that the Chief Justice joins in this opinion.

Darrell Hickman, Justice,

dissenting. The majority granted a rule on the clerk in this case. We routinely review numerous motions weekly and ordinarily grant or deny them without issuing a written opinion. Usually it is_a case of clearly being a matter of merit or no merit.

I feel compelled in this case to voice a dissent consistent with my position in the case of Harkness v. State, 264 Ark. 561, 572 S.W. 2d 835 (1978). In that case the majority permitted the record to be filed, which was tendered late, and in my opinion was not subject to being lodged because it was a violation of Rules of Crim Proc., Rule 36.9 (Repl. 1977).

That rule reads:

. . . The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit. ...

The majority in the Harkness case alluded to the fact that allegations had been made in the motion which were not denied by the state. By implication, I suppose, the majority was saying that our rule had not been violated because a “good reason” was given for failing to lodge the record. I stated my objections, emphasizing mainly that our rule was a good and proper rule and that rather than circumvent it, if necessary, it should be amended.

The decision in this case clearly flies in the face of Rule 36.9. The motion for the rule on the clerk filed by the retained attorney for this criminal defendant recites:

That due to the length of the trial record and the heavy case load of the court reporter, an extension of time to lodge was not filed.

This is not a reason which could be considered good cause for failing to file a transcript on time. There is no explanation whatsoever why counsel did not seek an extension of time in order to have the record prepared.

Presumably the majority acts as it does because this case involves a sentence of life without parole. Such action is admirable but still ignores and evades the problem. Notice of appeal was filed June 12, 1978. The record was tendered November 7, 1978, 58 days late. According to our rule such a record cannot be lodged.

There should be a means of accountability of counsel who fail to comply with our rules. I might add that an attorney has an obligation to his client to comply with our rules because a timely appeal no doubt inures to the benefit of the criminal defendant anxiously awaiting the outcome of the appeal.

At least we owe it to the bar to repeal the rule because obviously we are not going to enforce it.


author: John A. Fogleman, Justice.

text:
    Noah SIMMONS a/k/a Noah Hancock SIMMONS Jr. v. STATE of Arkansas
    CR 78-173
    578 S.W. 2d 12
    Substituted opinion delivered March 5, 1979
    (Division II)

      John W. Achor, Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant filed a motion for the withdrawal of his plea of guilty to a charge of breaking and entering. The circuit court denied the motion without a hearing. Appellant contends that the court erred in summarily denying the motion without a hearing. We disagree and affirm.

At the outset, appellant argues that the court should have considered the motion under Rule 37.3(a), Arkansas Rules of Criminal Procedure, and made written findings specifying those parts of the files or records relied upon to arrive at a decision that they show conclusively that the petitioner was not entitled to relief. Although petitioner labelled his pleading as “Motion to Withdraw Plea of Guilty” and specifically relied upon Rule 26, Arkansas Rules of Criminal Procedure, appellant is correct in his contention. We have held that a motion to withdraw a guilty plea must necessarily be made under Rule 37, if it is filed after the sentence has been carried into execution. Shipman v. State, 261 Ark. 559, 550 S.W. 2d 424.

It is true, as appellant points out, that Rule 37.3 (a) requires that, if the motion and the files and records show conclusively that the petitioner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files and records that are relied upon to sustain the court’s findings. We have held that the procedure requiring written findings should be followed in all cases when an evidentiary hearing is held (Orman v. Bishop, 243 Ark. 609, 420 S.W. 2d 908), and that the procedure is mandatory in such cases. Fuller v. State, 256 Ark. 133, 505 S.W. 2d 755. The obvious reason for making this requirement mandatory in cases where the judge is a trier of facts is that he determines the credibility of witnesses, resolves contradictions and conflicts in the testimony, and draws inferences from, and weighs, it.

Although we have reversed a judgment denying an evidentiary hearing where there had been a guilty plea in Robinson & Williams v. State, 264 Ark. 186, 569 S.W. 2d 662, the reversal was not based on this ground alone. Our problem there was that the record filed in this court was so scant, we could not understand how the trial court could determine that the motion was without merit. Even in McIntyre v. State, 242 Ark. 229, 412 S.W. 2d 826, where we held that the appellant was entitled to a new trial on his motion for post-conviction relief because appellant had entered a plea of guilty without the assistance of counsel, the reversal of the trial court’s denial of the motion was not based on the failure of the judge to make the required written finding alone. We pointed out this defect, but also pointed out that there was no evidence of record upon which he could have based his finding.

There are numerous cases in which the record before us shows conclusively that the motion or petition for post-conviction relief is without merit and that no evidentiary hearing is required. See, e.g., Moore v. State, 262 Ark. 27, 553 S.W. 2d 29. In many such cases we have upheld the denial of a hearing on a motion to grant relief where a plea of guilty had been entered, on the basis of a record which showed conclusively that the motion was without merit. See, e.g., Calhoun v. State, 249 Ark. 978, 462 S.W. 2d 849; Stone v. State, 254 Ark. 566, 494 S.W. 2d 715; Stallins v. State, 254 Ark. 137, 491 S.W. 2d 788; Robertson v. State, 252 Ark. 333, 478 S.W. 2d 878.

Rule 26.1 (a) provides that the court shall allow a defendant to withdraw his plea of guilty upon a timely motion and proof to the court that withdrawal is necessary to correct a manifest injustice. Appellant alleged that the plea, entered on October 27, 1976, was the result of a savage beating administered to him by two “county sheriffs” on October 18, 1976, and that he had entered the plea in order to avoid further harassment and violent treatment in the jail in which he was being held.

The trial court’s order was made upon a finding that the motion was without merit, based upon the files and records in the case. These files and records sustain the trial court’s holding. Withdrawal of a plea of guilty on the ground alleged by appellant required that the defendant prove to the satisfaction of the court that the plea was involuntary. The files in the case included a plea statement signed by appellant, acknowledging that he had read the entire statement, that he understood what his rights were and the questions asked, and his answer to all four questions on the statement was “yes.” The following statement appears immediately above his signature in capital letters:

I KNOW WHAT I AM DOING AND AM VOLUNTARILY PLEADING GUILTY BECAUSE I AM GUILTY AS CHARGED.

One of the four questions was:

Are you entering your plea of guilty on your own free will and accord without anyone causing you to do so on account of any promises or threats?

The attorney who represented appellant when his plea of guilty was entered had certified the following:

I have carefully gone over this paper with the accused. To the best of my knowledge he understands all of it and, further, his plea of guilty is consistent with the facts he has related to me and my own investigation of the case.

A record was made of the proceedings when the plea of guilty was entered. The plea was a negotiated plea. During the course of that hearing appellant acknowledged in open court that he had signed the statement and that he understood it. Other questions and answers were:

THE COURT: Do you understand it?
DEFENDANT SIMMONS: Yes, sir.
THE COURT: Do you have any questions about it?
DEFENDANT SIMMONS: No, sir, none whatsoever.
THE COURT: Are you pleading guilty because you are guilty?
DEFENDANT SIMMONS: Yes, sir.

This record clearly supports a finding that the plea of guilty was not involuntary. See Moore v. State, supra. It is the duty and responsibility of the trial judge to determine beyond doubt that a plea of guilty is voluntary and, in order to do so, he should inquire of the defendant personally. Rule 24.5, Arkansas Rules of Criminal Procedure; Clark v. State, 255 Ark. 13, 498 S.W. 2d 657; Byler v. State, 257 Ark. 15, 513 S.W. 2d 801. The record discloses a substantial, though not technical, compliance with these requirements.

It is essential that pleas of guilty, especially negotiated pleas, have a measure of stability. Pettigrew v. State, 262 Ark. 359, 556 S.W. 2d 880; Stone v. State, supra. The failure of the trial judge to specifically ask a defendant the precise question, “Have any threats or force, or any promises, apart from a plea agreement, been used to induce your plea of guilty?” does not render the plea and the sentence thereon subject to collateral attack for constitutional infirmity. Clark v. State, supra. Under Rule 37, the sentence imposed upon the guilty plea was not imposed in violation of the constitution and laws of the United States or of this state, and was not in excess of the maximum authorized by law. The court imposing the sentence was not without jurisdiction. Unless the sentence was subject to collateral attack for constitutional infirmity, i.e., for being based on an involuntary plea of guilty, appellant is not entitled to relief. Rule 37 was designed to provide a method of determining whether the constitutional rights of the defendant were violated or his sentence was imposed in violation of statutes or was otherwise subject to collateral attack. Thacker v. Urban, 246 Ark. 956, 440 S.W. 2d 553. As we once said, the rule was not designed to give a person convicted of a crime a holiday from the penitentiary for a hearing, but was provided for the protection of his constitutional rights. Evans v. State, 242 Ark. 92, 411 S.W. 2d 860. See also, Credit v. State, 247 Ark. 424, 445 S.W. 2d 718.

it is significant that appellant had the advice of counsel in the plea bargaining and in the entry of his plea, because he can attack it as involuntary only by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases. Horn v. State, 254 Ark. 651, 495 S.W. 2d 152. See also, Treat v. State, 253 Ark. 367, 486 S.W. 2d 16. But he made no such allegation, and the court was limited to the allegations of appellant’s petition in determining his right to a hearing. Stanley v. State, 258 Ark. 480, 527 S.W. 2d 613. It is also significant that the plea statement is similar to that set out in the opinion in Horn v. State, supra. But what is most significant is the fact that in spite of the trial judge’s inquiries and appellant’s personal participation in answering them, appellant never mentioned any coercion, threats or physical abuse, when he had ample opportunity to do so. Robertson v. State, 252 Ark. 333, 478 S.W. 2d 878; Nelson v. State, 252 Ark. 451, 479 S.W. 2d 556. Appellant has not given any reason for not having disclosed to the court the beating he now alleges was administered and its relationship to his plea.

What we said in Stone and in Robertson is applicable here. In Stone we said:

*** If the allegations in the case at bar are sufficient to require an evidentiary hearing, in the face of the record made when the plea was entered, then it is evident that every plea of guilty, without exception, is subject to reexamination at the whim of the prisoner. The trial court was right in refusing to order a hearing.

And in Robertson we closed by stating:

According to the record we have summarized, this appellant was given every opportunity to speak out, either in person or by employed counsel, and to raise any possible defense he had to the charges. If he had any such defenses it was incumbent that he raise them. In the face of the record made by the trial court and here summarized, appellant is not entitled at this late date to collaterally attack his sentence. Since appellant was in no position to attack the judgment, his presence naturally was not needed.

The record of the proceedings on appellant’s plea shows so conclusively that he is not now entitled to a hearing that a remand of this case to the trial court so it could point out the record already before us as the basis for its finding would constitute such an inexcusably extravagant waste of judicial resources, that we decline to order it.

The judgment is affirmed.

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

       A demonstration is found in Fuller v. State, supra, and its sequel, Fuller v. State, 256 Ark. 998, 511 S.W. 2d 474.


text:
    Charles O. WEST v. STATE of Arkansas
    CR 78-176
    576 S.W. 2d 718
    Opinion delivered February 12, 1979
    (Division II)

      Vincent E. Skillman, Jr., of Skillman & Durrett, for appellant.

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The jury found appellant guilty of manslaughter and his punishment was assessed at 5 years in the Arkansas Department of Correction. Appellant contends for reversal that the trial court erred in permitting the prosecuting attorney to inquire of a defense witness about the character of the appellant.

Cross-examination of this defense witness reflects:

Prosecutor: Q. Have you ever known him to be involved in any violence?
Defense Atty: Your Honor, I object to that.
Prosecutor: Now, your Honor, Mr. Wilson has put the character of the deceased in issue, and I think it is only fair at this point that I question any witness as to the character of the defendant as far as his reputation for quiet and peacefulness, or his reputation for violence.
The court: Objection overruled.

Upon further cross-examination, the state was permitted to show that appellant had shot and killed an individual about 4 years previously although the record reflects he was exonerated. Appellant argues this was prejudicial error since his witness never testified as to his character and reputation.

However, the state argues that the appellant’s character, as a peaceful man, had indirectly been put in issue when this and other witnesses testified that appellant had attempted to avoid confrontations or altercations whenever the decedent made threats against him. Appellee asserts the permitted cross-examination was pertinent to the issue of appellant’s peaceable nature or non-aggression. Therefore, the prosecution was entitled to rebut it by the recited cross-examination, citing Ark. Stat. Ann. § 28-1001, Rule 404 (a) (1) (Supp. 1977).

Rule 404 (a) provides:

Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:'
(1) Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same: .

This rule of evidence is an identical counterpart of the Federal Rules of Procedure. We hold the cross-examination here is not within the scope and meaning of this rule of evidence since the appellant did not place his character in issue. See U.S. v. Bledsoe, 531 F. 2d 888 (8th Cir. 1976), and 2 Weinstein’s Evidence, Rules 404[05], p. 404-32, and 404[01], p. 404-11.

Appellee also justifies this cross-examination by arguing that appellant’s peaceful character was an essential element to his plea of self-defense (non-aggression) and, accordingly, proof could be adduced on cross-examination as to specific instances of his conduct under Ark. Stat. Ann. § 28-1001, Rule 405 (b), which reads:

In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.

To be an “essential element,” “[t]he trait of character must be an operative fact which under substantive law determines the rights and liabilities of the parties. ” McClellan v. State, 264 Ark. 223, 570 S.W. 2d 278 (1978). Here we do not consider the peaceful nature of appellant to be an essential element of a direct substantive issue.

Pertinent to the issue here is Owens v. State, 169 Ark. 1188, 278 S.W. 3 (1925), where we said:

Appellant offered testimony tending to show the bad reputation of deceased, but did not put his own reputation in issue. It was not proper, therefore, for the State to offer original and affirmative testimony tending to show appellant’s reputation .... The prosecuting attorney did ask a witness for appellant what appellant’s reputation was. The objection to this question should have been sustained, as appellant had not put his reputation in issue ....

Here the appellant’s character and reputation were never placed in issue. We cannot say with certainty that the cross-examination of his defense witnesses as to appellant’s character and reputation did not have a prejudicial impact upon the jury.

We have carefully considered appellant’s other contentions and find no merit in them. For the error indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.

We agree: Harris, C.J., and Fogleman and Hickman,

JJ-


text:
    George A. LIPOVICH v. STATE of Arkansas
    CR 78-183
    576 S.W. 2d 720
    Opinion delivered February 12, 1979
    (Division II)

      Bill Webster, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of the offense of theft by receiving. Ark. Stat. Ann. § 41-2206 (Repl. 1977). His punishment was assessed at 10 years’ imprisonment in the Department of Correction and a fine of $5,-000. The appellant contends the trial court erred in denying his motion to suppress evidence secured from a search of a truck. He argues that the warrantless search of a U-Haul truck which he had rented was in violation of Ark. Stat. Ann. Vol. 4A, Rules of Crim. Proc., Rule 14.1 (Repl. 1977), because at the time of the search, there existed neither probable cause that the vehicle contained stolen articles nor exigent circumstances to justify the warrantless search. We hold the trial court correctly denied the motion to suppress.

Appellant had rented a U-Haul truck for overnight. Six days later the police were notified that a vehicle was causing a traffic hazard on the highway. Upon investigation they found the unoccupied truck parked about 2 feet off the pavement and apparently abandoned. They determined the identity of the driver and the U-Haul dealer or owner. The dealer and another representative of the U-Haul Company agreed to remove the truck and accompanied the police to the truck’s location where the sheriff and his deputies had been watching the truck. The U-Haul representatives identified the truck as their property and considered it stolen since its return was so long overdue. They refused to move it until it was opened and its contents checked since it could contain something hazardous to them or motorists. The police refused to open it since they had no authority. The owners then took the position they had authority pursuant to the rental contract and opened the truck by breaking the lock. The police in no way participated in the initial intrusion which revealed two organs, a piano and four benches. The police observed the articles, then entered the truck, inventoried or noted the serial numbers of the items and impounded the vehicle and its contents. By this time they had learned that appellant was wanted by other authorities. Shortly thereafter, the appellant, who had left to get gasoline for the truck, arrived and was arrested on the outstanding charges, ft was learned later that the items in the truck were stolen property and appellant was then charged with theft by receiving.

A warrantless inventory search of an abandoned vehicle is reasonable under the Fourth Amendment, in the absence of probable cause and exigent circumstances, as part of the police’s “community caretaking functions” where the process is aimed at securing or protecting the vehicle, its contents and the public, rather than detecting or acquiring evidence relating to a criminal violation. South Dakota v. Opperman, 428 U.S. 364 (1976); Cady v. Dumbrowski, 413 U.S. 433 (1973); Harris v. United States, 390 U.S. 234 (1968); and Perez v. State, 260 Ark. 438, 541 S.W. 2d 915 (1976). Here the actions of the officers were reasonable and followed sound police practices. They were dealing with a vehicle reported as stolen, found abandoned and a hazard on a public highway.

A motion to suppress evidence should only be granted under Rule 16.2 (e) if the court finds that a substantial violation of our rules has occurred or if the federal or state constitutions otherwise require suppression. Pridgeon v. State, 262 Ark. 428, 559 S.W. 2d 4 (1977). Here we find no substantial violation of our rules nor infringement upon any constitutional rights.

Affirmed.

We agree: Harris, C.J., and Fogleman and Hickman, JJ-


author: Stephen A. Matthews, Special Chief Justice. John I. Purtle, Justice,

text:
    Joseph H. WESTON v. STATE of Arkansas
    CR 77-238
    576 S.W. 2d 705
    Opinion delivered February 12, 1979
    (In Banc)

      Appellant, pro se.

      Bill Clinton, Atty. Gen., by: James E. Smedley, Asst. Atty. Gen., for appellee.
   Stephen A. Matthews, Special Chief Justice.

Appellant seeks relief in this Court from an indictment returned against him by an Independence County Grand Jury charging him with four counts of perjury. A brief statement of the factual background follows.

Appellant, the editor and publisher of a Sharp County newspaper, published an article in the September 19, 1977 issue of his paper alleging the existence of a prostitution ring, and other vice operations and narcotics traffic in Independence County. An Independence County Grand Jury investigated the matter and concluded its activity on November 19, 1977 by returning a four-count indictment for perjury against appellant, arising out of his testimony before the Grand Jury.

Throughout the course of the Grand Jury investigation, appellant filed numerous pleadings in the Independence Circuit Court, including a Motion to Quash the Grand Jury on November 3, 1977. The thrust of this motion was that the Grand Jury was a tool of corrupt law enforcement officials and judges who had set out on a course designed to harrass and intimidate appellant and to drive him and his newspaper out of business.

Because of the pendency of a lawsuit in Lawrence County in which appellant and Circuit Judge Andrew Ponder were adversary parties, Judge Ponder recused himself, and on October 25, 1977, Chancellor Robert Dudley of Pocahontas was assigned to

. . hear All Matters Pertaining to Joseph A. Weston’s Appearance Before the Independence County Grand Jury. This assignment includes all ancillary proceedings which may arise in connection with said cause and proceedings subsequent thereto.”

This assignment was made by the Chief Justice of this Court pursuant to the authority of Arkansas Statute 22-142.

Appellant asserts in his Brief and in oral argument that on November 18, 1977, Judge Dudley “abandoned” the case and that Judge Ponder erroneously resumed jurisdiction and on November 19, took certain improper action, including granting immunity to a witness named Patterson and “forcing” Patterson to testify against appellant, accepting the report of the Grand Jury, ordering the arrest of appellant, and fixing the amount of appellant’s bail bond. One of the troubles with appellant’s contentions is that the official record before this Court does not show that Judge Ponder took this action. Only the statements of appellant in his brief and his various pleadings, and a copy of a newspaper clipping appellant lodged with this Court, indicate such action by Judge Ponder.

It is virtually impossible for us to determine the relief appellant seeks. In his Reply Brief he says:

“An examination of my Briefs and pleadings will show that my appeal is NOT directly based upon the indictments themselves, per se.
“At the risk of being rebuked for violation of various rules of court procedure, I am directly appealing the erroneous conduct of two wilful judges and a crooked prosecuting attorney. The grand jury was only the willing and ignorant tool and these two judges — and their courts — and of Blankenship.”

In another place in his Reply Brief, appellant says he seeks from this Court:

“An order to quash en toto all activities of the corrupt Independence County Grand Jury from October 18, 1977 to November 19, 1977, inclusive.
“A reversal of all orders of all judges, written or otherwise, oral or otherwise, entered in the court record or not entered in the court record, issued or acted upon in open court or in secret sessions, or otherwise acted upon, lawful or unlawful, that were issued in any way in connection with or in association with activities of the Grand Jury during its entire term.”

Apparently appellant hopes this Court will fashion some unspecified form of relief for him, delivering him from, and rebuking, those whom he counts as his oppressors.

It should be noted that appellant has not moved that the indictment against him be quashed. The nearest he has come to such a request is his motion to quash the Grand Jury panel filed on November 3, 1977 and denied by Judge Dudley on November 4. This took place two weeks before the indictment was returned against appellant.

We decline, at this stage of the proceedings, to disturb the indictments against appellant for three reasons.

First, there is no appealable order before us. See Alexander v. State, 260 Ark. 785, 545 S.W. 2d 606 (1976); and State v. Langstaff, 231 Ark. 736, 332 S.W. 2d 614 (1960). Appellant has been indicted, but he has not been convicted of any offense. We have been cited to no authority holding that a right of appeal exists from an indictment by a Grand Jury. Rule 36.1 of the Rules of Criminal Procedure provides in part:

“Any person convicted of a misdemeanor or a felony by virtue of a trial in any circuit court of this State has the right to appeal to the Supreme Court of Arkansas.”

This provision is practically identical to Ark. Stat. 43-2701.

Because of the absence of a final order of the trial court settling some issue against appellant, or finding him guilty of some offense, an appeal to this court will not lie at this stage of the proceeding.

Second, we are committed to the rule that we will not review matters not in the record. Harvey v. Castleberry, 258 Ark. 722, 529 S.W. 2d 324 (1975); Poindexter v. Cole, 239 Ark. 471, 389 S.W. 2d 869 (1965); Becker v. Rogers, 235 Ark. 603, 361 S.W. 2d 262 (1962); and Jernigan v. Pfeifer Brothers, 177 Ark. 145, 5 S.W. 2d 941 (1928). In Becker, we said:

“At the outset, let it be mentioned that the briefs contain, and make reference to, many matters that do not appear in the record. Appellee’s brief, in large measure, is devoted to extraneous material, and appellants, in their reply brief, to some extent follow the same practice. The fact that we do not consider statements beyond the record is so axiomatic as to require no citation of authority.”

The “record” appellant presents us pertaining to the alleged actions of Judge Ponder consists of a newspaper account of appellant’s indictment and appellant’s own assertions in his brief.

Nor will we afford relief which is not first sought in the trial court and denied. Bond v. State, 230 Ark. 962, 328 S.W. 2d 369 (1959); Hicks v. State, 225 Ark. 916, 287 S.W. 2d 12 (1956); and Yarbrough v. State, 206 Ark. 549, 176 S.W. 2d 702 (1944).

The only relief appellant sought in the Independence Circuit Court which he now seeks here, as far as we can ascertain, is that the Independence County Grand Jury be quashed from its inception. The record filed in this Court, disregarding appellant’s assertions and the newspaper account, which cannot be treated as a “record,” does not estabish any basis for the granting of such relief.

Third, appellant’s brief is in flagrant disregard of Rule 9 of this Court. His statement of the case, instead of being a concise statement of the case, without argument, as required by Rule 9 (b) is a highly partisan account of what he believes to be injustices perpetrated upon him by those whom he perceives to be his enemies. More importantly, the abstract is in no sense an impartial condensation of the record, without comment or emphasis, as required by Rule 9(d).

Rule 9 does not exist as a snare for unwitting litigants or for those who appear before the Court, pro se. In fact, we are inclined to be more lenient in invoking Rule 9 in the cases or persons appearing pro se than in other cases. But the jurisdiction of this Court is limited to appellate jurisdiction only. Arkansas Constitution, Article 7, Section 4; Ark. Stat. 27-2101. We do not try anew all litigation or come to the assistance of appellants, pro se or otherwise, by combing the record and re-writing their pleadings for them and re-shaping their prayers into some form of relief which this Court may grant. We look only to see if the record shows that the trial court committed an error prejudicial to the appealing party. To aid in a speedy determination of appeals we, along with most other appellate courts, have promulgated Rule 9(d) placing upon appellants the burden of furnishing an abstract of the record consisting of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents and other matters in the record as are necessary to an understanding of all questions presented to this Court for decision.

Our refusal to afford appellant relief at this stage of the proceedings is based on all or any of the three reasons set out above, i.e., no appealable order is before us, the record does not support appellant’s position and there has been no compliance with Rule 9.

We do not hold that appellant is precluded from questioning the validity of the indictment which the Grand Jury returned against him. Nothing in this opinion prejudices a proper attack on the indictment. If appellant is tried and convicted and then chooses to attack the indictment by pleadings presented first in the trial court, basing his attack on matters reflected in the record, certainly the validity of the indictments may be examined. In fact, we take this occasion to observe that if the regular presiding Circuit Judge of Independence County, who had recused himself from taking any part in the Grand Jury proceedings involving appellant, did in fact resume jurisdiction over matters involving appellant and take discretionary action, it may well be that the indictment cannot stand if it is questioned on an appeal from a conviction. Bolden v. State, 262 Ark. 718, 561 S.W. 2d 281 (1978). If no stenographic record of the proceedings was made, our procedure permits the omission to be supplied by a bystander’s bill of exceptions. Graham v. State, 264 Ark. 489, 572 S.W. 2d 385 (1978).

Affirmed.

Special Justice Richard H. Wootton joins in the opm ion.

Harris, C.J., and Fogleman, J., not participating.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The appellant, Joseph H. Weston, formerly published a newspaper known as the Sharp Citizen. I understand the word Sharp is used in honor of or to designate the county rather than in its ordinary meaning. There is little doubt that appellant had the ability to arouse the ire of public officials and other citizens to a degree seldom equalled by any editor or publisher. Nevertheless, he was producing a newspaper which was entitled to all the rights and protection enjoyed by other media vehicles pursuant to the state and federal Constitutions. Although his publication was not in conformity with our standard publications, it nevertheless was a “freedom of the press” product.

Ark. Const. Art. 2, § 6, states:

Liberty of the press and of speech — Libel. — The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions is one of the invaluable rights of man; and all persons may freely write and publish their sentiments on all subjects, being responsible for the abuse of such right. In all criminal prosecutions for libel the truth may be given in evidence to the jury; and, if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party charged shall be acquitted.

This provision has been in full force and effect since 1874, thereby giving the distinct impression that the people of Arkansas are satisfied with it. This Article has built into it a measure of protection to the innocent people and proper restraints against abuse of the press. It provides all persons may freely write and publish their sentiments on all subjects, being responsible for the abuse of such right. It further provides that the truth of any such matters so published shall be a defense to any action for libel. I know of no instance where a judgment has been rendered against appellant on account of articles published by him.

Appellant is not a lawyer, and there is no question but that this Court would be justified under the normal interpretation of our rules in dismissing his appeal. However, under unusual circumstances, the Court has waived the rules. In all probability, we are going to review this case again. Nevertheless, we ought to be able to rule on it with some degree of finality the next time it comes. We will be unable to do so unless we, at least, give some guidelines to be followed before it is again before us.

It can be determined from appellant’s brief that he is clearly urging he has been punished for exercising his rights as guaranteed by the Constitution. We are also able to determine that some of the events which occurred are not in the record, nor will they be in the record when it is next before us. If one judge was relieved of all responsibilities of the Joseph H. Weston matter, and another undertook to handle these same matters, then it was not proper for the judge so relieved to assume jurisdiction again without proper authority. It is alleged by appellant, and not disputed by the state, that the recused judge happened to be in Independence County on Saturday, November 19, 1977, when the Grand Jury returned the indictments against the appellant. The recused judge granted immunity to a witness before the Grand Jury, denied a motion made by appellant, met with the Grand Jury, and accepted their report. Only the judge having jurisdiction of the case should have performed these acts, if in fact they were performed, and the record, such as it is, appears to establish these facts. When the case arrives here again, this matter will still be unresolved because it is not “officially” in the record and we will then be compelled to send it back.

Essentially, appellant is asking this Court to dismiss the indictments. The state admits an appeal will lie from the denial of a motion to dismiss an indictment. If this is the law, then we really have an appealable order before us even though the words are not expressed in those exact terms. There is no question that appellant raised every issue possible at every stage of the proceedings. His ideas are not presented for the first time on appeal.

The minutes of the Grand Jury have apparently never been furnished to appellant. If the prosecutor was in fact directing the whole proceedings and was present during the deliberation of the Grand Jury, it is a reversible error. Some parts of the record were found after this Court entered a mandate to the lower court. The record is still technically incomplete.

Appellant earnestly contends throughout every stage of the proceedings that he is being persecuted for the exercise of his freedom of speech. If only a portion of his allegations are true, he has merit to his arguments. Our Bill of Rights was instituted to end the restraints which at one time had been imposed upon the people of England. These rights have, no doubt, been a mighty force in guiding this nation to its present degree of greatness among the nations of the world and remains a cornerstone or foundation to our Republic and its democratic processes. There are times when we feel these privileges and rights are abused, but such thoughts are usually of a short duration. Although appellant may have been viewed as a pusillanimous polecat by some people, he may have been nevertheless exercising his rights as guaranteed by the Constitution.

In view of the state of the, record and all of the implications and allegations, I would reverse and return this case to the lower court for a fresh start from the beginning, if there is still a desire to prosecute the appellant.


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

text:
    Willie RICHMOND v. STATE of Arkansas
    CR 79-10
    — S.W. 2d —
    Motion for Rule on Clerk to lodge transcript granted February 12, 1979
   Per Curiam.

Motion for Rule on Clerk to lodge transcript is granted.

John A. Fogleman, Justice,

concurring. I vote to grant this motion only because petitioner has been sentenced to two sentences for life imprisonment and for a term of 20 years, all to run consecutively.

I am authorized to state that the Chief Justice joins in this opinion.

Darrell Hickman, Justice,

dissenting. Consistent with the position that I took in Harkness v. State, 264 Ark. 561, 572 S.W. 2d 835 and McCree v. State, 265 Ark. 46, — S.W. 2d —. I dissent to granting the rule on the clerk in this case.

There was no good cause shown for the record being tendered to our clerk three months late.

The young attorney for Willie Richmond stated that this was his first appeal and that he did not know he had only ninety days to lodge the record; he thought that he had seven months. It is my opinion this was not for good cause. We should not presume incompetence of counsel without a hearing of some sort and I would deny the motion and let the matter take its natural course.


text:
    THE CORNING BANK v. THE BANK OF RECTOR
    78-236
    576 S.W. 2d 949
    Opinion delivered February 19, 1979
    (Division II)

      Scott Manatt, for appellant.

      C. Joseph Calvin, for appellee.
   John A. Fogleman, Justice.

Appellant has failed to demonstrate error in the court’s holding that the lien of a real estate mortgage given by Gerayne Poole and his wife to appellee, The Bank of Rector, is prior and superior to an earlier security agreement between the Pooles and appellant, The Corning Bank. Consequently, we affirm the decree.

Appellee contends that the decree should be affirmed because of appellant’s failure to abstract the record in compliance with Rule 9, Rules of the Supreme Court. We are handicapped by the manner in which appellant has abstracted the record in this case. It is not such a flagrant violation of Rule 9 as to require an affirmance under that rule, particularly in view of the fact that appellee has supplemented the record to supply some of the deficiencies. None of the pleadings are abstracted. Some of the security instruments (particularly those in favor of appellee) were incompletely abstracted by appellant, without specific transcript references being given. Appellant did place a photocopy of one side of its security agreement in a pocket of its brief, in violation of Rules 8, 9 (d) and 11 of the rules of this court, if it was intended as a substitute for abstracting. See, Per Curiam Order, Re: Attaching Exhibits to Abstract of the Record, February 13, 1978, 262 Ark. 911; Lewis v. Miller, 263 Ark. 154, 563 S.W. 2d 435. Excerpts from appellant’s security agreement are scattered throughout appellant’s abstract and brief (also without transcript references), and some of them are merely footnotes to appellant’s argument. The decree entered was not abstracted, but appellee has abstracted the opinion of the chancellor to the extent necessary for us to understand the court’s holding. Some reference is made by appellant to estimates showing the purchase price of the property involved. These estimates are not abstracted. Appellant says they were furnished to it prior to its disbursement of the funds secured by its security agreement. No evidence to support this statement is abstracted. We will treat the matter on the merits, but it must be remembered that the record on appeal is that which is abstracted. Williams v. Owen, 247 Ark. 42, 444 S.W. 2d 237.

The controversy involves grain bins which, at least at the time of the trial, were located on real estate on which The Bank of Rector held a mortgage dated May 17, 1976, and properly filed for record on the same day. Appellant contends that its financing statement and security agreement (a single instrument) dated March 17, 1976, covering the bins, made its security interest superior to the lien of the mortgage to appellee. The financing statement and security agreement contained no description of any real property and no indication whether the property described //as located on, or to be located on, any real estate. This statement was filed in the office of the Circuit Court Clerk of Clay County on March 19, 1976, where financing statements are filed only by the name of the debtor. Since there was no land description in the instrument, it was not noted or recorded in any deed, mortgage, release deed or miscellaneous record book in that office. It was filed in the Uniform Commercial Code file.

The financing statement and security agreement upon which appellant relies refers to the property described as goods. The instrument, according to appellant, contains a covenant that the Pooles would not sell, exchange, lease or otherwise dispose of the “goods” or any of the debtor’s rights therein, without the written consent of appellant, it also contained the following clauses:

Debtor, upon demand by secured party, shall assemble the goods and make them available to secured party at a place reasonably convenient to both parties.
Until default hereunder, debtor shall be entitled to possession of the goods and to use and enjoy the same.

There was also a provision that the property would be retained at the place of business of Greenway Elevator Co. at P. O. Box 94, Greenway, Arkansas.

The critical issues in this case, according to appellant, are whether the property involved is a fixture and whether a “fixture filing” was required to preserve the priority of appellant’s security interest. The chancellor held that each of the grain, bins consisted of a floor, roof and sides and that they constituted buildings, were “permanent property” and a part of the real estate. He also held that there was nothing on file to put appellee on notice of appellant’s security interest. We cannot say that the chancellor erred.

Under the Uniform Commercial Code, goods are fixtures when they become so related to the real estate that an interest in them arises under reel estate law. Ark. Stat. Ann. § 85-9-313 (1) (a) (Supp. 1977). Unless the facts are undisputed and reasonable minds could only reach one conclusion, the question whether particular property constitutes a fixture is sometimes one of fact only, but usually is a mixed question of law and fact. See, Thos. Cox & Sons Machinery Co. v. Blue Trap Rock Co., 159 Ark. 209, 251 S.W. 699; Taylor v. Walker, 127 Ark. 541, 192 S.W. 895; British & American Mortgage Co. v. Scott, 70 Ark. 230, 65 S.W. 936; 35 Am. Jur. 2d 759, Fixtures, § 75; 36A CJS 738, Fixtures, § 64.

In reviewing the evidence on this question, we are aided in our understanding of it by photographs reproduced by appellee. W. J. Hurst, whose occupation is selling and erecting grain bins similar to those involved, had inspected these bins. He appears to have been the only witness on the question of whether the bins were fixtures. According to him: a bin, the size of these, would require a “12-foot deep footing” and four to six inches of concrete over the balance of the surface; the bins, which have dimensions of 22 feet by 21 feet and a capacity of 7,000 bushels, are constructed on this foundation from side sheets 34 inches wide and 79 inches long; they are attached to the foundation by steel bolts and nuts; it would take three days to construct these bins; a bin can be removed from the foundation by removing the nuts from the bolts with a crescent wrench and the motor attached to the bins can be removed in the same way; the motor and a three-phase fan are detachable and can be changed readily; the bins can be removed and put in a truck and hauled away (leaving only a concrete slab with bolts sticking up) but it is not practical to do so, and special equipment, similar to house moving equipment, would be required; the bins could not be moved without being completely disassembled; a house could be removed “by the same token;” and the bins can be “taken down in reverse order in which they are erected. ” Hurst knew of two bins that had been moved, but they were on sand and wired to the ground, not set in concrete.

In Ozark v. Adams, 73 Ark. 227, 83 S.W. 920, we reiterated the basic rules for determining whether an article remains a chattel or becomes a fixture. They are: (1) real or constructive annexation to the realty in question; (2) appropriation or adaptation to the use or purpose of that part of the realty with which it is connected; and (3) the intention of the party making the annexation to make a permanent accession to the realty, this intention being inferred from the nature of the chattel, the relation and situation of the party making the annexation, the structure and mode of annexation and the purpose for which the annexation has been made. A consideration of the various facts in this case seems to support a finding that the property in question was intended to be a permanent accession to the land and therefore it became a fixture. The person making the annexation was the owner of the realty; the realty was being used as a grain storage facility and the chattels in question were grain storage bins; the bins were assembled and erected on the realty and this installation involved the pouring of a concrete slab with bolts imbedded in it. The inference is strong, where the party attaching the “fixture” is the owner of the soil, that it was intended to become a part of the soil and not a removable fixture, and to overturn it, there must be strong evidence of a contrary intention manifested by some act or circumstance. Thompson & Co. v. Lewis, 120 Ark. 252, 179 S.W. 343. In the case just cited, emphasis was given to the fact that the machinery involved was attached to the soil in the manner customary for the use of that type of machinery. We do not consider the case of Cherokee Carpet Mills, Inc. v. Manly Jail Works, Inc., 257 Ark. 1041, 521 S.W. 2d 528, relied upon by appellant, as materially affecting the rules herein stated, or as being particularly favorable to appellant’s position. We simply are unable to say that the finding that the property involved here constituted a fixture is clearly against the preponderance of the evidence.

If we can assume from the record before us that, at the time the security agreement was executed, the bins had not been assembled or placed on the lands described in the mortgage to appellee, the decision in this case turns upon the effect of the filing by appellant as notice to appellee. In this case, we consider Ark. Stat. Ann. § 85-9-313 (Supp. 1977) as controlling. ___

In this connection, we do not consider the fact that appellee’s mortgage was taken and recorded in reliance upon a title opinion based upon an abstract which was made prior to the date of the filing of appellant’s security agreement. In any event, appellee caused an examination of the records to be made by an abstractor on the day after its mortgage was filed. The issue does not turn upon the information appellee had. It depends upon what a proper search would have disclosed.

The abstractor did not find appellee’s security agreement because it was not filed or recorded in the real estate records. The abstractor testified that, if the document had contained a legal description, he would have found it. The only description relied upon by appellant as a land description was the statement that the property would be located at the Greenway Elevator Company at Greenway, Arkansas, which, as we have pointed out, was identified only by a post-office box number. We do not consider this as a sufficient key to identification of real estate to meet Uniform Commercial Code requirements.

The description was sufficient only if it reasonably identified the real estate. Ark. Stat. Ann. § 85-9-110 (Add. 1961). The test is whether the description made possible the identification of the real estate. Commentary, § 85-9-110. See also Piggott State Bank v. Pollard Gin Co., 243 Ark. 159, 419 S.W. 2d 120; People’s Bank v. Pioneer Food Industries, Inc., 253 Ark. 277, 486 S.W. 2d 24. In a financing statement filed as a fixture filing, the description of the real estate must be sufficient to have given constructive notice of a real estate mortgage under the law of this state if it had been included in a mortgage of the real estate described. Ark. Stat. Ann. § 85-9-402 (5). This description did not meet this test. It is true that a real estate mortgage will not be held void for uncertainty, even as to third persons, where the description used in the mortgage furnishes a key whereby one, aided by extrinsic evidence, can ascertain what property is covered. Caraway Bank v. U.S.A., 258 Ark. 858, 529 S.W. 2d 351. The name and address of the mortgagor would hardly furnish that key, particularly when the address is a post-office box number. To be sufficient, the description must make reference to something tangible by which the property can be located. Snyder v. Bridewell, 167 Ark. 8, 267 S.W. 561; New England Securities Co. v. West Helena Consol. Co., 177 Ark. 849, 8 S.W. 2d 440. This requirement was not met.

On the basis of the evidence before him, the chancellor was justified in holding that appellant’s collateral was goods which were, or were to become, fixtures, so that, in order to establish the priority of its security agreement, a “fixture filing” must have been made in the office where a mortgage on real estate would be filed or recorded, before the interest of a subsequent encumbrancer is placed of record. Ark. Stat. Ann. § 85-9-313 (1) (b), (4) (b). There is no indication that appellant complied or attempted to comply with the requirements for a “fixture filing.” There was no recitation in the instrument that it was to be filed for record in the real estate records and it did not contain a description of the real estate sufficient to give constructive notice of a mortgage of the real estate. Ark. Stat. Ann. § 85-9-402 (5) (Supp. 1977). Thus, the circuit clerk was not called upon to index the instrument as he would have if it had been a real estate mortgage. Ark. Stat. Ann. § 85-9-403 (7) (Supp. 1977).

We do not regard appellant’s argument that its priority was established under § 85-9-313 (5) as having any merit. That section provides that a security interest, whether or not perfected, has priority over the conflicting interest of an encumbrancer or owner of the real estate where the encumbrancer or owner has consented in writing to the security interest. Appellant takes the position that Poole was both encumbrancer and owner. He was not the encumbrancer. The Bank of Rector was. An encumbrancer is one who holds a burden, charge or lien on property or an estate to the diminution of the value of the fee, but which does not prevent the passing of the fee by conveyance. Webster’s New International Dictionary, 2d Ed. See also, Black’s Law Dictionary (DeLuxe 4th Ed.), pp. 620, 908. Since The Bank of Rector did not give its consent, appellant did not have priority over that bank’s interest as an encumbrancer.

Appellant also contends that a “fixture filing” was not necessary because “trade fixtures” are not actually fixtures as contemplated by the Uniform Commercial Code. We cannot see how these bins can be classified as “trade fixtures,” and removable from the realty as such. It is commonly accepted that trade fixtures are articles erected or annexed to realty by a tenant for the purpose of carrying on a trade, and removable by him during his term (provided the removal does not affect the essential characteristics of the article removed or reduce it to a mass of crude materials) upon grounds of public policy and because, from the nature of the tenure, they are not presumed to have been annexed with the intention of making them permanent additions to the realty. Field v. Morris, 95 Ark. 268, 129 S.W. 543; Barnes v. Jeffus, 173 Ark. 100, 291 S.W. 990; Bennett v. Taylor, 185 Ark. 794, 49 S.W. 2d 608. Poole was not a tenant, and from the testimony of Hurst, the bins could have been removed only by reducing them to a mass of crude materials.

Appellant has failed to demonstrate error in the decree, sq it is

Affirmed.

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

       In its statement of the case appellant states that Gerayne Pool obtained financing to purchase “two grain bins on the property subsequently mortgaged to the Bank of Rector, to-wit, real property, the moneys for the purchase of the grain bins coming from the Corning Bank.” No transcript reference is given and none of the abstracted evidence provides this information.