author: John A. Fogleman, Chief Justice.

text:
    Frederick Lee KOONCE a/k/a Frederick ROBERTS v. STATE of Arkansas
    CR 80-43
    598 S.W. 2d 741
    Supreme Court of Arkansas
    Opinion delivered May 27, 1980

      Jack T. Lassiter, for appellant.

      Steve Clark, Atty. Gen., by: Robert J. DeGostin, Jr., Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

Appellant Frederick Lee Koonce, also known as Frederick Roberts, was sentenced to 16 years’ imprisonment as a habitual criminal, after having been found guilty of aggravated robbery by a jury. He was also found guilty of unauthorized use of a motor vehicle, as a lesser included offense on the charge of theft of property, and sentenced to imprisonment for one year on that charge. On this appeal, he alleges that the trial court erred in failing to grant his motion to suppress as evidence a .22 caliber weapon seized in the search of the vehicle. He also asserts that the court erred in failing to give an instruction on choice of evils that he had requested.

The weapon was a .22 caliber revolver seized by an officer of the police department of McComb, Mississippi on the date of the alleged robbery in Cabot, Arkansas. Officer Ronald Yoas was on patrol in McComb on the evening of September 2, 1978, when he saw a motor vehicle parked behind a deserted filling station. As he approached the vehicle, he observed two male persons putting oil in the car and drinking beer from a quart bottle and two cans. He asked them for identification. One of these men produced an Indiana driver’s license identifying him as Tommy R. Burcham. The other was identified as Lonnie L. Burcham. They were arrested after Officer Yoas requested information from the National Crime Information Center and was told that Tommy Burcham was wanted on a charge in Indiana. Yoas approached the vehicle and observed a man asleep inside it. He awakened this man, who was the appellant, and asked him for identification. Koonce exhibited an insurance or hospital card issued to Jerry Ashley. At the time a driver’s license bearing the name Jerry Ashley fell to the floorboard of the vehicle from a wallet in possession of the person in the car. The picture on this license was not that of the person in the vehicle. Officer Yoas observed an open, half-full, quart bottle of beer in the back of the vehicle and noticed the odor of marijuana. The officer placed appellant under arrest for possession of open beer. The officer removed appellant from the vehicle and searched it. He found several knives and a fully loaded Central .22 caliber nine-shot revolver, which was identified as appellant’s by Jerry Ashley, the alleged victim of the robbery, as looking like the revolver that was held on him at the time of the robbery. The weapon was found under the front seat of the automobile on the passenger side.

Lonnie Burcham told Officer Yoas that he and his brother Tommy had bought the car. Tommy .Burcham testified at the suppression hearing that the car belonged to him and his brother Lonnie. All three of the persons taken into custody were charged with possession of “open” beer in violation of a McComb city ordinance. One or more of them were charged with possession of marijuana. Koonce testified at the suppression hearing that he claimed no ownership of the car and that to the best of his knowledge it belonged to Lonnie Burcham. He also said that he did not own the pistol.

Since Koonce had neither a property interest nor a possessory one, either in the vehicle in which he was only a backseat passenger or in the weapon seized, he had no legitimate expectation of privacy under the front seat of the vehicle, which would entitle him to invoke the exclusionary rule. Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387, reh. den. 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1978). For this reason, we do not consider other arguments pertaining to the reasonableness of the search.

Appellant also contends that the trial court erred in failing to give instructions on the defense of “choice of evils” on each charge against him. This defense is new to Arkansas criminal jurisprudence and seems to be a rather new concept which has not been defined by statute in many jurisdictions. It is included in the defense of justification in our criminal code. Ark. Stat. Ann. § 41-504 (Repl. 1977). That section provides:

Justification - Choice of Evils. - (1) Conduct which would otherwise constitute an offense is justifiable when:
(a) the conduct is necessasry as an emergency measure to avoid an imminent public or private injury; and
(b) the desirability and urgency of avoiding the injury outweigh, according to ordinary standards of reasonableness, the injury sought to be prevented by the law proscribing the conduct.
(2) Justification under this section shall not rest upon considerations pertaining to the morality and advisability of the statute defining the offense charged.
(3) If the actor is reckless or negligent in bringing about the situation requiring a choice of evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability. [Acts 1975, No. 280, § 504, p. 500.]

Appellant requested, and the court refused, AMCI 4102, based upon this section of the statute, on both charges.

We do not think appellant made a showing entitling him to these instructions. Included in the commentary to this section is the following statement:

Illustrative of situations that might permit successful recourse to § 41-504 are: (1) the destruction of buildings or other structures to keep fire from spreading; (2) breaking levees to prevent the flooding of a city, causing, in the process, flooding of an individual’s property; and (3) temporary appropriation of another person’s vehicle to remove a seriously injured person to a hospital.

The evidence upon which appellant bases his argument that he was entitled to these instructions is as follows:

Mr. Ashley testified that on the night in question Mr. Koonce was with an individual by the name of Tom Burcham and that they came by Ashley’s house around 8:00 or 9:00 that evening. Mr. Ashley testified that the three of them sat around his apartment on that Saturday night drinking beer and smoking pot. Mr. Ashley testified that he went to bed at approximately 1:00 in the morning and was awakened by Mr. Koonce tapping him on the shoulder. He testified that Mr. Koonce told him to lay still and that Mr. Koonce had a .22 revolver in his hand at the time. Ashley testified that Koonce expressed an intention to rob him. According to Ashley, Koonce took his billfold and all the change in his pocket, a small can in the living room, truck keys and a 1978 GMC truck which belonged to Ashley’s employer. Ashley stated that approximately $250.00 was taken from him. Mr. Burcham, at Koonce’s direction, tied Ashley’s hands and Koonce tied his feet. Ashley admitted that he was a convicted felon and on the night in question he had been using marijuana and LSD.
On cross-examination Ashley admitted that he had sold LSD in the past and had procured marijuana for a neighbor. Ashley denied having been “somewhat berserk” on the evening in question, but he admitted to previous LSD use and that the drug is a hallucinogenic. He admitted to smoking 4 or 5 joints of marijuana that evening. On re-direct examination he identified the gun that was held on him as a .22 caliber gun, blue with a long barrel.
In contrast to Mr. Ashley’s testimony, the Defendant Frederick Lee Koonce testified as follows: Koonce testified that he had met Ashley two or three days prior to the incident. Mr. Koonce stated that he had bought LSD from Ashley in tablet form at that time. On the evening in question, Mr. Koonce and Mr. Burcham went to Mr. Ashley’s home and bought approximately 1 ounce of marijuana and two hits of LSD from Mr. Ashley. They smoked marijuana and drank beer. Mr. Ashley took approximately 3 tablets of LSD. That occurred approximately 1 hour after Mr. Koonce and Mr. Burcham arrived at the apartment. Between the hours of 10:00 p.m. and 1:00 a.m. Mr. Ashley was incoherent and co.úld not be understood. Ashley was unable to get up from his chair. Mr. Koonce testified that Mr. Ashley was unaware of anything until around 3:30 or 4:00 in the morning when he began to discuss a past debt owed to him by Mr. Burcham. That discussion ended in an argument and Mr. Koonce testified that he told Mr. Ashley that he had tied him up because he was too violent and too emotional to talk and discuss things and so he would not hurt himself or Koonce or Burcham. Koonce testified that he asked Ashley where the keys to his truck were and Ashley told him. Koonce further stated he and Burcham took Ashley’s drugs from him because of his condition and told him that they would be back early in the morning and let him have his things. Koonce and Burcham then drove to Burcham’s brother’s home in the pick-up. They then drove Lonnie Burcham’s car back to Ashley’s home with the intention of returning Ashley’s possessions. Koonce testified that when they arrived they heard arguing and loud voices inside so they left. Mr. Koonce denied pulling a pistol on Mr. Ashley at any time. The truck that was taken from Ashley’s residence was left approximately a half block from Mr. Burcham’s brother’s house and Ashley had been informed where the truck would be left. Koonce testified that he took Ashley’s billfold with him when they left for New Orleans because he was afraid to leave it in the pick-up truck on the street. Mr. Koonce denied taking $250.00 from Mr. Ashley.

We readily agree with a New York court [People v. Brown, 70 Misc. 2d 224, 333 NYS 2d 342 (1972], that a statute such as this is to be narrowly construed and applied. The seed for this section of our criminal code was furnished by The American Law Institute in Tentative Draft No. 8 of its Model Penal Code (1958). The language of our statute differs to some extent, and is more limiting, but the basic principles of this new defense are similar to those espoused by the institute. In justifying the extension of the defense to offenses other than homicide, in its comments the institute said:

* * * Property may be destroyed to prevent the spread of a fire. A speed limit may be violated in pursuing a suspected criminal. An ambulance may pass a traffic light. Mountain climbers lost in a storm may take refuge in a house or may appropriate provisions. A cargo may be jettisoned or an embargo violated to pfeserve the vessel. An alien may violate a curfew order to reach an air raid shelter. A druggist may dispense a drug without the requisite prescription to alleviate distress in an emergency. A developed legal system must have better ways of dealing with such problems than to refer only to the letter of particular prohibitions, framed without reference to cases of this kind.

In its proposed official draft of the Model Penal Code, the institute made some changes in the language of the section defining the defense, but referred to the tentative draft for commentary.

The evidence here does not bear any similarity whatever to the examples set out in either the commentary to the governing section of our criminal code or to that in the ALI tentative draft. We find the instruction inappropriate to the facts in this case.

The judgment is affirmed.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Dorothy MILKS v. C. M. CARDEN, Chancellor, and Jimmy SEALS, Chancery Clerk
    80-102
    598 S.W. 2d 744
    Supreme Court of Arkansas
    Opinion delivered May 27, 1980

      Christopher Rand, Griffin J. Stockley, Jerome Rephan and Sim

      mons S. Smith, Central Arkansas Legal Services, for petitioner.

      Steve Clark, Atty. Gen., for respondents.
   George Rose Smith, Justice.

The petitioner, an indisputably indigent person, sought to file a suit for divorce in the Saline Chancery Court without paying the required $20 filing fee. The chancellor recognized that the petitioner is indigent, but entered an order that “reiterates [the court’s] policy of disallowing any such fee waivers in this Judicial District.” In this court the petitioner seeks a writ of mandamus to compel the chancellor and the court clerk to accept the complaint without the fee.

It is first argued by the Attorney General, appearing for the respondents, that mandamus is not the proper remedy, because acceptance of the complaint was discretionary with the trial court. A complete answer to this suggestion is that the trial judge did not even purport to exercise any discretionary authority; he simply adhered to a fixed policy against the waiver of filing fees in civil cases. Mandamus is thus the only remedy available to the petitioner.

On the merits the case is governed by the Supreme Court’s opinion in Boddie v. Connecticut, 401 U.S. 371 (1971). There the court held that the constitutional guaranty of due process of law prohibits a state from denying, solely because of inability to pay filing fees, access to its courts to indigents who in good fait seek dissolution of their marriage. The court sought — somewhat optimistically, as the future may well prove — to confine its reasoning to suits for the dissolution of marriage. Even so, the case at bar is such a suit; so it is our duty to give effect to the Supreme Court’s ruling.

Writ granted.


text:
    Larry CROMWELL v. STATE of Arkansas
    CR 79-223
    598 S.W. 2d 733
    Supreme Court of Arkansas
    Opinion delivered May 27, 1980

      John W. Achor, Public Defender, by: Theodore Holder, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Cromwell was convicted by a jury of attempted capital murder, with a sentence of life imprisonment, and of aggravated robbery, with a sentence of imprisonment for 25 years. He argues two grounds for reversal.

The two offenses occurred, as part of the same incident, on October 19, 1978. On that day a man entered a small grocery store in Little Rock, used a pistol to hold up the proprietor, Willie Woods, and took the money in the cash register. The robber then ordered Woods to get down behind the counter. When Woods was almost prone the robber shot him in the chest, in what seems to have been intended as an execution type killing. The shot, however, was not fatal. Woods described his assailant to the police and at the trial some 11 months later he identified Cromwell as the criminal. Cromwell testified that he was elsewhere at the time of the incident and had nothing to do with it.

First, it is contended that paragraph (1) (a) of the capital murder statute is void for vagueness. Ark. Stat. Ann. § 41-1501 (1) (a) (Repl. 1977). This paragraph provides that a person commits capital murder if, in the commission of or attempt jto commit rape, kidnapping, arson, vehicular piracy, robbery, burglary, or escape in the first degree, he causes the death of any person under circumstances manifesting extreme indifference to the value of human life. The next section of the Criminal Code provides, in almost identical language, that a person commits murder in the first degree if he commits or attempts to commit “a felony” in the same circumstances. § 41-1502 (1) (a). Hence under the literal language of the two sections Cromwell might have been charged either with capital murder or with first-degree murder, because robbery is a felony and therefore fits the definition of each offense.

The appellant, in arguing the void-for-vagueness doctrine, relies upon the rule that the legislature must set-reasonably clear guidelines for law enforcement officials and triers of fact, to prevent arbitrary and discriminatory law enforcement, Smith v. Goguen, 415 U.S. 566 (1974), and upon the companion principle that a vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with attendant dangers of arbitrary and discriminatory application. Grayned v. City of Rockford, 408 U.S. 104 (1972). It is insisted that our statutes are therefore void for vagueness, because tar prosecuting attorney or the trier of fact may arbitrarily decide whether an accused is to be charged with or convicted of capital murder, a capital offense, or muder in the first degree, punishable by imprisonment only.

This argument, as applied to our statutes, is not sound. In the cases cited the statutes themselves were vague, leaving enforcement to the selective whim of the policeman, prosecutor, judge, or jury. For instance, in Goguen the court held that the language, “publicly . . . treats contemptuously the flag of the United States,” did not define the offense with sufficient precision to give adequate warning of what conduct was prohibited. The definition of the offense was therefore being delegated to the law enforcement officials, who in that case sought to convict Goguen for having worn a small United States flag sewn to the seat of his trousers.

Here, by contrast, the appellant does not complain that the language of our statutes is vague. Those statutes, in plain words, prohibit one from causing the death of any person in the commission of various felonies, which are defined elsewhere in the Code, the other statutory language, “under circumstances manifesting extreme indifference to the value of human life,” has already been upheld against a charge of vagueness. Martin v. State, 261 Ark. 80, 547 S.W. 2d 81 (1977).

Instead of arguing that our statutes themselves are vague, the appellant isolates a separate consequence of the void-for-vagueness doctrine and insists that our statutes confer arbitrary power upon prosecutor and juries to select between capital murder and murder in the first degree.

The answer to this argument is that the possible exercise of such discretionary authority is not fatal to the statutes, for even in capital cases, which this one is not, the evil to be guarded against is the capricious selection of a group of offenders. Gregg v. Georgia, 428 U.S. 153, 199 (1976). In the first place, it is impossible to avoid the use of general language in the definition of certain offenses. State v. Weston, 255 Ark. 567, 501 S.W. 2d 622 (1973). Moreover, the prosecutor or grand jury is often compelled to choose one or two or more offenses, no matter how precise the statutes may be. For example, the conflicting testimony of eyewitnesses may, depending on their variying credibility, establish capital. murder if the accused committed robbery but only murder in the first degree if he committed a lesser felony such as theft of property, battery, or aggravated assault. §§ 41-2103, -2203, -1601, and -1604. There can be no constitutional objection to the exercise of a reasonable discretion in that situation.

In the court below the trial judge solved the problem by taking Section 41-1502 (1) (a), defining murder in the first degree, to refer not to just any felony but only to any felony other than the seven specified in Section 41-1501 (1) (a), defining capital murder. On this point see the Comment to Instruction 1506, AMI Criminal (1979). For the guidance of the bench and bar we take this opportunity, when the death penalty is not involved, to express our disagreement with the trial judge’s view. The Criminal Code was drafted by an able committee, which worked diligently for years. It was approved by the General Assembly after careful study. We are unwilling to say that the reference in Section 41-1502 (1) (a) to “a felony” was meant to exclude the seven felonies specified in the preceding section. The actual wording of the statute may have been chosen to lighten the possible punishment that might be imposed for conduct falling within the strict definition of capital murder — a consequence that might be acceptable both to the prosecution and to the defense. If that is not true in a particular case, presumably the defease can ask that the State be required to elect between the two degrees. In any event, we find no constitutional infirmity in the overlapping of the two sections, because there is no impermissible uncertainty in the definition of the offenses.

The second point for reversal has to do with the admissibility of evidence. About a month after the commission of the offenses the prosecuting witness, Woods, identified Cromwell at a police line-up. That identification was challenged by a motion to suppress, but after a hearing the trial judge denied the motion, finding that the line-up would not taint an in-court identification by Woods. Before the trial Woods also saw Cromwell at a preliminary hearing and at a pretrial conference.

When the trial began, defense counsel indicated during his voir dire examination of the veniremen and in his opening statement to the jury that he would question Woods’s in-court identification of Cromwell, because Woods had never seen Cromwell until the date of the robbery, which was 11 months before the trial. On the basis of that indicated line of defense Woods was permitted to testify, on direct examination during the State’s case in chief, that he had never seen Cromwell before the robbery, but he had seen him on three occasions after that. No details were given, nor were any elicited by cross examination.

The evidence was admissible. We have frequently held that a prosecuting witness may testify that he saw or identified the defendant before or after the offense. Bishop v. State, 236 Ark. 12, 364 S.W. 2d 676 (1963); French v. State, 231 Ark. 677, 331 S.W. 2d 863 (1960); Birones v. State, 105 Ark. 82, 150 S.W. 416 (1912). That evidence is relevant, because a jury may reasonably believe that an in-court identification is more apt to be accurate if, for instance, the witness has known the accused for a long time or has seen him on other occasions. Details affecting the weight of such testimony may be brought out on cross examination. Of course, proof of an identification made at an improperly conducted line-up is not admissible. Gilbert v. California, 388 U.S. 263 (1967). Here, however, the trial court’s order refusing to suppress the lineup identification is not challenged.

In another line of cases, and before the adoption of Uniform Evidence Rule 801 (d) (1) (iii), Ark. Stat. Ann. § 28-1001 (Repl. 1979), we held that a third person, such as a police officer, cannot testify that the prosecuting witness identified the accused on an earlier occasion, if there has been no impeachment of the prosecuting witness. Trimble v. State, 227 Ark. 867, 302 S.W. 2d 83 (1957). We reviewed our cases in detail in Spivey v. State, 247 Ark. 752, 447 S.W. 2d 846 (1969), and declared our adherence to the rule of Birones, Bishop, and French. The Spivey cases controls this one.

Affirmed.


author: Frank Holt, Justice.

text:
    ARKANSAS GAZETTE COMPANY v. Floyd J. LOFTON, JUDGE
    80-2
    598 S.W. 2d 745
    Supreme Court of Arkansas
    Opinion delivered May 27, 1980

      Rose Law Firm, P.A., for petitioner.

      Steve Clark, Atty. Gen., by: Debby ThetfordNye, Asst. Atty. Gen., for respondent.
   Frank Holt, Justice.

Otha Lee Conley was charged with four counts of rape which were committed in the Quapaw Quarter area of Little Rock during the summer of 1978. Following two trials, which included other incidental charges, he was convicted and sentenced to a total of 143 years. During a preliminary hearing about a week before the third trial, the trial court enjoined and restrained the petitioner from (1) publishing any information regarding the substance of the preliminary hearing until after the jury was impaneled, and (2) referring to the accused as the “Quapaw Quarter rapist” in any news stories published prior to the trial. We dissolved this order, issued a writ of certiorari and directed the parties to submit briefs pursuant to Rule 16. Even though we dissolved the order, we address the one issue presented since it is capable of repetition in future cases. Commercial Printing Co. and Tosca v. Lee, 262 Ark. 87, 553 S.W. 2d 270 (1977).

The petitioner does not object to the first aspect of the order. With commendable restraint, petitioner declined publishing the substance of the evidence proffered at the preliminary suppression hearing, and in fact never had any intention to do so. Petitioner points out, however, that it was clearly free to do so if it chose since it was an open court proceeding. Shiras v. Britt, 267 Ark. 97, 589 S.W. 2d 18 (1979); and Woody. Goods on, Judge, 253 Ark. 196, 485 S.W. 2d 213 (1972). Therefore, the only issue presented here is whether the order restraining the press from referring to the accused as the “Quapaw Quarter rapist” was unconstitutional and void.

Any restraint on the freedom of the press, even though narrow in scope and duration, is subject to the closest scrutiny and will be upheld only upon a clear showing that an exercise of this right presents a clear and imminent threat to the fair administration of justice. US. v. CBS, Inc., 497 F. 2d 102 (5th Cir. 1974). Any prior restraint bears a heavy presumption against its constitutional validity, and the government carries a heavy burden of demonstrating justification for its imposition. CBS, Inc. v. Young, 522 F. 2d 234 (6th Cir. 1975).

Here there is no doubt that the court entered the order in good faith, believing it was required by the publicity surrounding this and the two previous trials. However, the informations alleging that Conely had committed four rapes, in the Quapaw Quarter area, were clearly matters of public record. The accused had been convicted of two of these alleged rapes in the area and was charged with two additional rapes, one of which was the subject of the instant trial. We are cited no case nor does our research reveal one which permits judicial censorship of the use of descriptive words by the news media. In effect, here the press was merely paraphrasing what the public records reveal. Use of the phrase by the petitioner is protected by the federal First Amendment and Art. 2, § 6, of our own constitution. The restraint of these constitutional rights amounts to a judicial censorship which is beyond the jurisdiction of this or any court. Therefore, the restraint imposed by the court cannot pass constitutional scrutiny.

In response to the respondent’s contention that a writ of mandamus is not the proper remedy, we need only refer respondent to our reasoning in Commercial Printing Co. v. Lee, 262 Ark. 87, 553 S.W. 2d 270 (1977), cited with approval in Shiras v. Britt, supra.

Order made permanent.


author: Darrell Hickman, Justice.

text:
    Lloyd N. BROWN v. Mary Kay BROWN
    79-341
    598 S.W. 2d 747
    Supreme Court of Arkansas
    Opinion delivered May 27, 1980

      Janis A. Richardson, for appellant.

      Patten, Brown, Leslie & Davidson, by: Charles A. Brown, for appellee.
   Darrell Hickman, Justice.

This is an appeal involving a divorce decree which was entered August 19, 1976, by the Chancery Court of Saline County. There was no appeal from the decree. That was before we declared part of Arkansas’ divorce law unconstitutional. Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1979).

In April of 1979, the appellant, Lloyd Brown, filed a motion seeking termination of an alimony award that the court made back in 1976 and asking that the parties’ home be sold. He argued for the first time that Arkansas’ alimony law was unconstitutional. Also, he argued it was unfair to award alimony to a woman, able, but unwilling, to work.

After a hearing on the motion, the chancellor found a change in circumstances and reduced the alimony from $200 a month to $150 but ruled against the appellant on his other requests. Both parties have appealed.

This case is not unlike the cases of Boyles v. Boyles, 268 Ark. 120, 594 S.W. 2d 17 (1980) and Schmidt v. Schmidt, 268 Ark. 382, 596 S.W. 2d 690 (1980). In both of those cases an attempt was made to constitutionally challenge a decree involving alimony for the first time after a decree had been entered. We held in both cases that since the constitutionality of the Arkansas statute had not been raised in the original proceeding, it was too late to do so at a later time.

In Boyles we held that alimony became a vested interest when the decree was entered; the issue of alimony becomes res adjudicata. The appellant is essentially trying to appeal from the 1976 decree. We affirm the chancellor’s decree which denied the appellant’s request to terminate the alimony because it was unconstitutional.

That leaves the matter of whether the chancellor abused his discretion in failing to terminate the alimony award because the appellee was able to work. This hearing occurred three years after the decree was entered. The appellee was able to support herself with the alimony and the child support for the one minor child. We cannot say, at this time, simply because she was able to work, that the chancellor was wrong in failing to terminate alimony. The child is eleven years old and, according to the appellee, the interest of the child is best served by her remaining in the home at this time. The chancellor did take into consideration the changed circumstances, primarily the decrease in income of the appellant, and reduced the award. We also cannot say the chancellor was wrong in reducing the award.

Consequently, we affirm the decree of the chancery court.

Affirmed.


text:
    C.R.T., INC. v. Gordon BROWN et al
    80-57
    602 S.W. 2d 409
    Supreme Court of Arkansas
    Substitute Opinion on Rehearing delivered July 7, 1980

      Wright, Lindsey & Jennings and Friday, Eldredge & Clark, for appellant.

      Philip E. Dixon and Charles R. Nestrud, of House, Holmes & Jewell, for appellees.
   Darrell Hickman, Justice.

C.R.T. Inc., the appellant, licensed to haul asphalt and asphalt products, steam cleaned its trucks at a terminal in Pulaski County. The run-off from the steam cleaning necessitated some kind of lagoon to prevent pollution. C.R.T. constructed a holding pond to contain the waste. It was eight feet deep and measured about 120 feet by 200 feet. Drain pipes were placed in the holding pond and only water was supposed to run off, leaving the residue in the tank to be periodically removed. The pond was not the kind of facility recommended by C.R.T.’s engineers. The facility recommended by its engineers was estimated to cost between $40,000 and $60,000, which C.R.T. decided was too expensive.

In December, 1977, Gordon Brown, a landowner of adjacent property to C.R.T.’s facility, and the lessees of his land, Harold Thomas and Rickey Thomas, filed suit in the Chancery Court of Pulaski County. They asked that C.R.T. be permanently enjoined from discharging any petroleum waste onto the Brown property. The Thomases used the Brown property as a pasture for a small herd of cattle. The chancellor entered a permanent injunction and the parties entered into a settlement for damages that had occurred to the land and to the small herd of cattle. The settlement figure was $9,000.00.

In July, 1978, Brown and the Thomases filed another petition in chancery court asking that C.R.T. be held in contempt of court for pollution that had occurred to the land in 1978. Brown asked for damages to his land and the Thomases asked for damages to their cattle. The Department of Pollution Control and Ecology joined in the suit.

The chancellor found C.R.T. in contempt of court and awarded Brown, the property owner, $27,000.00 in damages; Rickey Thomas was awarded a total of $5,580.00 for damages to his cattle;, the appellees were also awarded $8,-500.00 as attorneys’ fees and costs of $1,325.41. The chancellor specifically found that since Brown had not used any of his portion of the $9,000.00 settlement obtained in 1977 to restore the land, his damages were reduced by $4,-000.00. In other words, the chancellor found that Brown’s damages totalled $31,000.00 — but were reduced to $27,-000.00.

C.R.T. concedes that the chancellor was right in finding that “Oil and asphaltic materials flowed from [C.R.T.’s] pond onto [Brown’s] property in June of 1978 and again in September, 1978.” However, C.R.T. argues that the damages were excessive and the attorneys’ fees and costs were improperly awarded.

We must first emphasize that this was a contempt proceeding and that C.R.T. was found in contempt of court. There was an abundance of evidence to support the chancellor’s finding that C.R.T. had failed on at least two occasions in 1978 to prevent pollution and that, in fact, asphaltic material had overflowed from the pond, running into a small stream that traversed the Brown property and damaging Brown’s land.

Two witnesses testified regarding the damage to the land. Appellant’s witness testified that he could clean up Brown’s property by scraping the ground and replacing the topsoil. His estimate was that the cost would be between $10,000 and $12,000. He conceded, however, numerous small trees would have to be removed.

The appellees’ witness, John Allen, Jr., an employee of Ergon, Inc. which provides an environmental cleanup service, estimated that it would cost $32,887.00, plus taxes, to clean up the property. Ergon is a Memphis, Tennessee corporation and in its estimate labor alone would amount to $17,000.00. Ergon proposed that this cleanup would have to be done with shovels and buckets to insure that the property was restored to its prior state.

The appellant argues that Ergon’s estimate, which was no doubt used as a basis of the award by the chancellor, was totally unreasonable. We disagree.

We find that the chancellor properly considered the special damages in this case to be a sum that it would take to restore the property to its former state. Earl v. Clark, 219 N.W. 2d 487 (1974). See also Ross v. St. Louis I.M. & S. Ry. Co., 120 Ark. 264, 179 S.W. 353 (1915). While the estimate of Ergon to restore the land was considerable, it was the only evidence of what it would take to restore the land to its former condition. The fact that it would be expensive to restore the land to its former condition is not reason alone to overrule the chancellor’s finding. There was no other evidence of what amount of money it would take to repair the damage and at the same time preserve the land as it was.

C.R.T., a corporation found in contempt of court, causing an unusual damage to Brown’s property, would ask that damages only be awarded that would restore Brownes property as C.R.T. would like it restored. Our review on appeal is limited to examining the finding of the chancellor and only overruling it if it is against the preponderance of the evidence. Fisher v. Fsiher, 237 Ark. 321, 372 S.W. 2d 612 (1963).

Since this was a civil contempt proceeding we find it entirely appropriate that the chancellor awarded attorneys’ fees and costs. The award of attorney’s fees in civil contempt action has been approved by the United States Supreme Court. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1967). The attorneys’ fees were based on the number of hours the appellees’ attorneys said they worked and we cannot say the chancellor was clearly wrong in the award. The same is true for the costs. The costs included cost of a deposition and the fee for an expert witness. Essentially, the costs were those to the appellees for trying the lawsuit. We find nothing inordinately unfair about such an award in a contempt case. A party should not be penalized for having to prove that a person or corporation is in contempt of court. Indeed, the converse is true.

The damages awarded to the Thomases were for loss of cattle and damage to the cattle. The first figure for damages was $3,900.00 because of the death of six cattle. The chancellor found five died as a result of an overflow which washed oil and asphalt into the creek in June, 1978. The cattle used the stream for drinking water. One cow was found to have died as a result of an overflow that occurred in September, 1978. A veterinarian testified that in his opinion the cause of death was the result of the intake of the asphaltic materials. The appellant questions the worth of his opinion. Questions raised regarding the expert’s testimony go to the weight or credibility of his testimony and any argument regarding the weight of that opinion was a matter to be decided by the chancellor. Apple v. Cooper, 263 Ark. 467, 565 S.W. 2d 436 (1978). We cannot say the chancellor’s finding regarding the death of the cattle was against the preponderance of the evidence and, therefore, we do not disturb it. Kemp v. Simmons, 244 Ark. 1052, 428 S.W. 2d 59 (1968).

The chancellor found that weight loss suffered by 14 cattle resulted in damages to the appellees in the amount of $1,-680.00. The cattle were estimated to have lost about 150 pounds each and cattle at that time were selling for about 75 to 80 cents a pound. This evidence supports the chancellor’s finding and we cannot say he was clearly wrong in this regard.

The appellees argue on cross-appeal that Rickey Thomas should have been awarded damages because his cows did not calve as they would have except for the pollution. The chancellor made a finding to the contrary and we cannot say his finding is clearly against the evidence. No punitive damages were awarded, the chancellor finding that the appellees had wavied any right to punitive damages by filing the suit in a court of equity. In making his decision the chancellor apparently relied on the case of Stolz v. Franklin, 258 Ark. 999, 531 S.W. 2d 1 (1975). The appellees, on cross-appeal, argue that punitive damages should have been awarded and that the chancellor could have considered damages under the clean-up doctrine. We find it unnecessary to discuss this since we review a case de novo and in our judgment the damages awarded in this case were sufficient not only to compensate the appellees but to punish the appellant for its wrongful act.

Affirmed.


text:
    James Allen JONES v. STATE of Arkansas
    CR 80-10
    598 S.W. 2d 748
    Supreme Court of Arkansas
    Opinion delivered May 27, 1980

      John W. Achor, Public Defender, by: Theodore Holder, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

James Allen Jones was convicted of aggravated robbery and attempted capital murder and sentenced to a total of sixty years imprisonment. On appeal he alleges only one error: The evidence was inadequate for a rational trier of fact to have found the appellant guilty beyond a reasonable doubt. We find that there was substantial evidence to support the finding by the jury and affirm his conviction.

This was simply a case of the word of the victim against that of Jones and several alibi witnesses. Willeene Iheme, an employee of Mr. Jay’s Liquor Store on High Street in Little Rock, Arkansas, identified Jones as the person who came into the liquor store, pulled a gun on her, shot her and robbed the store.

Jones denied he was that person and called several alibi witnesses. The jury chose to believe Iheme who testified she had an opportunity to view Jones for ten or twelve minutes.

The weight of the evidence and the credibility of a witness are matters for the jury and not for this court. Chaviers v. State, 267 Ark. 6, 588 S.W. 2d 434 (1979); Thomas v. State, 266 Ark. 162, 583 S.W. 2d 32 (1979). The appellant-relies upon the case of Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560 (1979) in his argument of error. In that case the United States Supreme Court held that one who applies to a federal court for habeas corpus relief is entitled to it “if it is found that upon the record adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”

We do not find that the language in the Jackson case requires us to abandon our decisions regarding the test of whether a jury verdict should stand in a criminal case. There must be substantial evidence to support such a decision. Hutcherson v. State, 262 Ark. 535, 558 S.W. 2d 156 (1977). In the case of Pickens-Bond Const. Co. v. Case, 266 Ark. 323, 584 S.W. 2d 21 (1979), we discussed what substantial evidence is. We said:

Substantial evidence has been defined as ‘evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture.’ Ford on Evidence, Vol. 4, § 549, page 2760. Substantial evidence has also been defined as ‘evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely created a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences.’ Wigmore on Evidence, Vol. IX, 3rd ed. § 2494, footnote at page 300. See also Tigue v. Caddo Minerals Co., 253 Ark. 1140, 491 S.W. 2d 574; Goaz v. Central Ark. Dev. Council, 254 Ark. 694, 496 S.W. 2d 388.

In the case before us, it was for the jury to decide if the victim or the appellant and his witnesses were telling the truth. The jury chose to believe Iheme and, therefore, the question to us is whether her estimony is substantial evidence. It is.

Affirmed.

Holt, J., not participating.


text:
    Donald Odell SARGENT v. Honorable John W. COLE, Circuit Judge
    CR 80-82
    598 S.W. 2d 749
    Supreme Court of Arkansas
    Opnion delivered May 27, 1980

      Dan E. Moudy and Robert F. Alsobrook, for petitioner.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for respondent.

      Leslie R. Ablondi, for amicus curiae Arkansas Juvenile Judges and Juvenile Probation Officers Association.
   Darrell Hickman, Justice.

Donald Odell Sargent, a seventeen-year-old, was charged by information in the Saline County Circuit Court with first degree murder. He has petitioned this court to prohibit his trial in the circuit court.

We granted temporary stay of the proceedings until the parties could brief the issue. We find no merit to the petition and deny the writ.

The only question before us is whether the Arkansas Juvenile Code of 1975 requires that all juveniles, persons under eighteen years of age, be charged and tried for criminal acts in juvenile court. We find that it does not.

The Juvenile Code was adopted at the same regular session of the Arkansas General Assembly as the Criminal Code, the 1975 session. See Act 451, the Arkansas Juvenile Code and Act 280, the Arkansas Criminal Code, Acts of Arkansas 1975. The Criminal Code was passed before the Juvenile Code at the 1975 session.

One provision of the Criminal Code, as it is found in Ark. Stat. Ann. § 41-617 (Repl. 1977) provides that persons 15, 16 and 17 years old can be tried for offenses in either municipal, juvenile or circuit court. All other persons, those under 15, must be tried in juvenile court.

The petitioner argues that this section of the Criminal Code was repealed by the language in the Juvenile Code which granted “original and exclusive” jurisdiction to juvenile court over all juveniles charged with any acts that would be considered criminal misconduct.

If we simply read the provisions of the juvenile code relied upon by the petitioner and stop there we might agree, for the language “original and exclusive” does seem to be all encompassing. That portion of the Juvenile Code in its entirety reads:

Original and exclusive jurisdiction. — The juvenile courts of the several counties shall have original and exclusive jurisdiction in all cases of delinquency, juveniles in need of supervision and dependency-neglect arising under this Act [§§ 45-401 - 45-449]. Acts 1975, No. 451, § 6, p. 1179]- Ark. Stat. Ann. § 45-406 (Repl. 1977).
A delinquent juvenile is defined as:
(2) ‘Delinquent juvenile’ means any juvenile who (a) has committed an act other than a traffic offense which, if such act had been committed by an adult, would subject such adult to prosecution for a felony or misdemeanor under the applicable criminal law of this State, or (b) has committee [committed] an offense applicable only to a juvenile. Ark. Stat. Ann. § 45-403 (Repl. 1977).

However, the statutory rules of construction do not limit us to examining any single part of a law. We are required to reconcile statutes of the same general subject matter, construing them together if possible, in order to implement legislative intent. Cook v. Bevill, 246 Ark. 805, 440 S.W. 2d 570 (19&9); Louisiana Oil Refining Co. v.Rainwater, 183 Ark. 482, 37 S.W. 2d 96 (1931).

This is especially so if two acts on the same subject were enacted during the same general session as the Juvenile Code and the Criminal Code were. Cordell v. Kent, 174 Ark. 503, 295 S.W. 404 (1927).

More importantly, we must construe a statute, if possible, so that all of its parts will be effective. Town of Wrightsville v. Walton, 255 Ark. 523, 501 S.W. 2d 241 (1973).

In at least four specific instances, provisions of the Juvenile Code refer to jurisdiction of courts other than a juvenile court regarding criminal acts by juveniles. Ark. Stat. Ann. § 45-417 (Repl. 1977) provides:

Arrest with warrant. — When any juvenile is arrested pursuant to a warrant, the arresting officer shall immediately take the juvenile before the court out of which the warrant was issued, which court shall decide whether or not to assume jurisdiction over the offense, or transfer jurisdiction over the case to another court of competent jurisdiction pursuant to Section 20 [45-420] of this Act [§§ 45-401 — 45-449]. [Acts 1975, No. 451, § 17, p. 1179.] [Emphasis added.]

The language of this statute clearly indicates that a court other than the juvenile court may exercise jurisdiction over a juvenile.

Ark. Stat. Ann. § 45-418 reads:
Arrest without a warrant. — When any juvenile is arrested without a warrant, except in traffic cases, the arresting officer shall immediately take the juvenile before the juvenile court of the county in which the arrest was made. If the juvenile is over the age of twelve (12), the juvenile court shall immediately notify the appropriate prosecuting attorney who shall decide whether to (1) file a petition with the juvenile court, or (2) seek a criminal indictment or file a criminal information in another court having jurisdiction over the matter. If neither information nor petition is filed, nor indictment returned, within 24 hours after a detention hearing or within 96 hours after arrest whichever is sooner, the juvenile shall be discharged from detention. To the extent this section conflicts with any other law of this State which authroizes a law enforcement officer making an arrest without a warrant to take a juvenile before any other court of this State, this section prevails. [Acts 1975, No. 451, § 18, p. 1179.] [Emphasis added.]

Clearly this language grants a prosecuting attorney discretion as to which court will be utilized in charging certain juveniles. This authority given to a prosecuting attorney would seem to coincide with the provision of the Arkansas Criminal Code, Ark. Stat. Ann. § 41-617 (Repl. 1977), that permits certain juveniles to be tried in circuit court or municipal court.

Ark. Stat. Ann. § 45-420 reads:
Transfer of cases. — When any juvenile is charged in a court of this State with the commission of any act which is a felony or misdemeanor under the applicable criminal law of this State, the judge of the court may, in his discretion, transfer the case to any other court having jurisdiction over the matter, either as a criminal offense or as an act of delinquency. Any bail or appearance bond given for the appearance of such juvenile shall continue in effect in the court to which the case is transferred. [Acts 1975, No. 451, § 20, p. 1179-]

This provision could only refer to the fact that a court other than a juvenile court could exercise jurisdiction over a juvenile.

Ark. Stat. Ann. § 45-421 (Repl. 1977) is of a similar import. It says:

Right to bond. — Any juvenile within the provision of this Act [§§ 45-401 — 45-449], informed against, indicted, or against whom a petition has been filed, or who has for any purpose been taken into custody, shall at any time before he has been adjudged to be delinquent or found guilty of committing any offense, and within the discretion of the judge having jurisdiction over the matter, be entitled to (1) release on his own recognizance, (2) release to the custody of some other party, or (3) give bond in such sum and under such conditions as the court may deem proper, to assure his appearance at any trial or hearing of such case in the same manner as such right is given to adults under the laws of this State. [Acts 1975, No. 451, § 21, p. 1179-]

When these provisions of the Juvenile Code are read with the rest of the Act, it is clear to us that the General Assembly did not intend that all juveniles must be tried in juvenile court. We find that the law clearly grants a prosecuting attorney discretion to charge juveniles over 15 years of age in any of three courts, juvenile, municipal or circuit.

Prohibition is granted only when a court has no jurisdiction. Brown v. Kimbrough, 263 Ark. 913, 568 S.W. 2d 226 (1978); Skinner v. Mayfield, 246 Ark. 741, 439 S.W. 2d 651 (1969). Sargent was over 15 years of age at the time he was alleged to have committed the offense and, therefore, the prosecuting attorney had discretion to file charges against him in the circuit court. Since the court did not have jurisdiction, the petition for writ of prohibition is denied.

Writ denied.

       Certain sections of the Criminal Code and the Juvenile Code were amended by the Arkansas General Assembly at its 1979 session. However, those amendments do not substantially change the provisions that were enacted in 1975. In this opinion we quote the language of those statutes as they read in 1975. Those sections that were changed in 1979 to some extent are: Ark. Stat. Ann. § 41-617, § 45-403, § 45-406, § 45-417 and § 45-418.


author: Richard L. Mays, Justice.

text:
    Claborn JOHNSTON and Alta JOHNSTON v. Robert VERBOON and Carol VERBOON
    80-64
    598 S.W. 2d 752
    Supreme Court of Arkansas
    Opinion delivered May 27, 1980

      A. Jack King and Neva Belcher King, for appellants.

      Yates, McKenzie & Yates, P.A., by: Ted Yates, for appellees.
   Richard L. Mays, Justice.

This is a suit by appellees, Robert and Carol Verboon, to enjoin appellants, Claborn and Alta Johnston, from interfering with the peaceful access to and from appellees’ property by use of a dirt roadway which crosses appellants’ land. Appellees claim an easement for ingress and egress based upon prescription. The chancellor found a prescriptive easement and granted the relief prayed. The appellants appeal, contending that the chancellor’s decision is against the preponderance of the evidence. We find appellants’ contention persuasive and, accordingly, reverse and remand.

The roadway in question has been in existence for over thirty years. It is part of an old road which extends from Highway #23 in Franklin County, Arkansas, across a thirty acre tract, acquired by appellants in 1960, to a 10 acre tract, now owned by appellees. The old road enters appellants’ thirty acres on the west boundary and continues along the southern part of appellants’ property until it crosses onto appellees’ acreage and passes an old house which has been located on the property for many years. The road has traditionally been used by those traveling to and from the old house and by occasional hunters and fishermen. Other than the potholes and the generally deteriorated condition of the road, the only obstruction to its use is a wire gap fence which crosses the roadway where it enters appellants’ property. Although the wire gap fence was in place before appellants acquired the property, appellants have maintained this entrance and built a road in 1965 from a new entrance north of the old entrance which intersects with the old road further south on their property. Since there was no lock on the old wire gap entrance, those using the road to cross appellants’ property would simply take the wire gap down and replace it after passing through.

Probably the heaviest and most consistent user of the road in the early 50’s was the Roberson family which had owned and occupied the old house on the 10 acre tract for many years. Although the road had been used in the early 40’s by other families living in the area, all of the families except the Robersons had relocated by the early 1950’s. Maintaining their old homestead for only occasional weekend visits, the Robersons also moved away in 1952. During their absence the roadway fell into general disuse and was frequently impassable. In fact, when the Robersons made their occasional weekend visits, they usually found the road impassable by car, and reached their homestead on foot. Some 20 years later, in 1972, the Robersons returned to live on their old homestead and obtained the permission of appellants before using the old roadway as a means of ingress and egress. In 1975, the Robersons sold the 10 acre tract to the appellees, who lived on the property for a year and then rented it to a Mr. Joe Sugg. Claiming that Sugg was tearing up the road and leaving the gate open, allowing the livestock to stray, appellants put a log chain across the old entrance to prevent its use.

The primary question is whether the old country road that runs through both appellants’ and appellees’ property is a public or private road. It is well established that the public may acquire an easement by prescription to a roadway by openly, continuously and adversely using it for more than seven years. Craig v. O’Bryan, 227 Ark. 681, 301 S.W. 2d 18 (1957). Such an easement may be acquired, notwithstanding the erection of a gate across the roadway, as long as the gate was not constructed to exclude the public. Hoover v. Smith, 248 Ark. 443, 451 S.W. 2d 877 (1970). Even after a prescriptive easement has been acquired by the public, however, it may be abandoned by nonuse. McLain v. Keel, 135 Ark. 496, 205 S.W. 894 (1918); Lovegrove v. Hanna, 239 Ark. 44, 386 S.W. 2d 947 (1965). Such abandonment allows the owner to re-enter and prevent the public from re-establishing its prescriptive right to the use of the roadway. To establish abandonment, the nonuse must have continued for the same length of time as was necessary to create the right of use by prescription. McLain v. Keel, supra; see also Ark. Stat. Ann. § 37-101 (Repl. 1962).

Although recognizing that the public may have acquired a prescriptive easement to the use of the road, appellants argue that the evidence establishes that any easement acquired by the public has,been abandoned. Notwithstanding the appellants’ argument, however, this court will not disturb the chancellor’s decision unless it is clearly against the preponderance of the evidence. Medlock v. Owen, 105 Ark. 460, 151 S.W. 995 (1912). In this instance, a review of the record concerning the issue of abandonment requires us to so hold. Although in the early 1940’s other families living in the area used the old road to reach their homes, the only family living in the area and regularly using the road in the early 1950’s was the Robersons. When the Robersons moved away in 1952, there was virtually no use of the road until they returned in 1972. Although the Robersons occasionally returned during their 20 year absence for week-end visits, they usually reached their house by foot, since the old road was usually impassable by car. After the Robersons returned in 1972, they not only secured appellants’ permission before they used the road, but made plans to build a new road to their place which did not cross appellants’ land. Also, by constructing a new entrance off the old road where it runs parallel with appellants’ property, and building a new road to intersect with the old road as it crosses their land, appellants evidenced an intention to re-establish any dominion and control over the old roadway previously forfeited to the public. Until this action was taken the record strongly in-indicates that the old road had practically deteriorated into a footpath. Surely, under this set of facts, the evidence preponderates in favor of abandonment.

Reversed and remanded.


author: PER CURIAM

text:
    Eddie DIXON v. STATE of Arkansas and Elzie BROADNAX v. STATE of Arkansas
    CR 80-79 & CR 80-81
    598 S.W. 2d 755
    Supreme Court of Arkansas
    May 27, 1980
   PER CURIAM

Temporary writs of prohibition were granted in these cases pending a decision regarding the Juvenile Code of Arkansas of 1975.

Our decision, this date, in Sargent v. Cole, 269 Ark. 121, 598 S.W. 2d 749 (1980), held that a juvenile over 15 years of age, charged with a criminal act, could be tried in circuit court. Therefore, the temporary writs granted in these cases are dissolved and the appeals are dismissed.


text:
    SOUTH CENTRAL DISTRICT OF THE PENTECOSTAL CHURCH OF GOD OF AMERICA, INC. v. BRUCE-ROGERS COMPANY
    79-328
    599 S.W. 2d 702
    Supreme Court of Arkansas
    Opinion delivered June 2, 1980

      Gean, Gean & Gean, for appellant.

      Warner & Smith, for appellee.
   John A. Fogleman, Chief Justice.

Appellant, South Central District of the Pentecostal Church of God of America, Inc., brings this appeal upon the sole ground that the trial court erred in not holding that Act 146 of the General Assembly of 1895, as amended, digested as Ark. Stat. Ann. § 51-601 et seq (Repl. 1971), is unconstitutional because it violates the due process clause of Amendment 14 of the Constitution of the United States and Article 2, § 8 of the Constitution of Arkansas. Since we do not agree, we affirm the decree of the chancery court.

The particular facts involved are unimportant in our consideration of the issues on this appeal. The chancery court rejected appellant’s arguments as to constitutionality of the statutes. Having done so, it entered a decree granting a judgment to appellee Bruce-Rogers Company, a supplier to a contractor engaged by appellant to install heating and air conditioning plants in a building owned by appellant. The judgment included a lien on the real estate improved by installation of the fixtures supplied.

Appellant contends that the pertinent statutes permit a taking of property without procedural due process required by the constitutional provisions invoked by appellant.

We are able to quickly dispose of the federal constitutional question. It seems to us that the matter has been laid to rest by the decision of a three-judge district court in Spielman-Fond, Inc. v. Hanson’s, Inc., 379 F. Supp. 977 (D.C., Ariz., 1973), aff'd. summarily 417 U.S. 907, 94 S. Ct. 2596, 41 L. Ed. 2d 208. The sole question before the district court was the constitutionality of the Arizona mechanics’ and materialmen’s lien statutes. There, as here, the attack, in essence, was the assertion that, in effect, the lien provided by the statutes cut off the owner’s right to alienate his property, and that, as a result, the owner was deprived of a significant property interest without the benefit of prior notice or hearing. As we view the statutes, there is no material difference from the constitutional point of view. The mere fact that the Arizona statute may make a general contractor the agent of the owner while the Arkansas statute does not, does not afford a basis for distinction, as appellant contends. The Arizona district court did not consider that fact significant enough to mention in its opinion. The district court carefully analyzed the effect of Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969); Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971) and Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972), reh. den. 409 U.S. 902, 93 S. Ct. 1977, 34 L. Ed. 2d 165, all of which are relied upon by appellant. After having done so, that court concluded that the lien, by clouding the owner’s title, might make it more difficult for the owner to alienate the proeprty, but that there was nothing that would prevent him from making a sale if he could find a willing buyer. The court also pointed out that the owner was not deprived of possession or use of his property, as was the case in Sniadach, Goldberg and Fuentes.

Since, on federal constitutional questions, we are a court inferior to the United States Supreme Court, we are bound by precedents established by that court. We take the summary affirmance of the three-judge court in the Arizona case to be binding precedent. That position has generally been taken by the lower federal courts. See, e.g., B & P Development v. Walker, 420 F. Supp. 704 (W.D., Pa., 1976); In re Thomas A. Cary, Inc., 412 F. Supp. 667 (E.D., Va., 1976), aff'd. 562 F. 2d 47 (4 Cir., 1977); Matter of Northwest Homes of Chehalis, Inc., 526 F. 2d 505 (9 Cir., 1975), cert. den. 425 U.S. 907, 96 S. Ct. 1501, 47 L. Ed. 2d 758 (1976); In re Oronoka, 393 F. Supp. 1311 (N.D., Me., 1975). At least one other state court of last resort has recognized that Spielman-Fond is binding precedent on the questions involved here. Connolly Development Inc. v. Superior Court, 17 Cal. 3d 803, 132 Cal. Rptr. 477, 553 P. 2d 637 (1976), appeal dismissed for want of substantial federal question, 429 U.S. 1056, 97 S. Ct. 778, 50 L. Ed. 2d 773 (1977). The reason this affirmance is binding precedent here is because it affirms a judgment on the identical question in a case within the mandatory appellate jurisdiction of the United States Supreme Court.

Our position that the precedent is binding is supported, rather than weakened, by the action of the United States Supreme Court with reference to Roundhouse Construction Corp. v. Telesco Masons Supplies Co., Inc., 168 Conn. 371, 362 A. 2d 778 (1975), relied upon by appellant. In that case, the Connecticut Supreme Court distinguished Spielman-Fond, Inc. v. Hanson’s, Inc., supra, on the basis that an action for foreclosure of the lien must be filed within six months, and reasoned that this period seemed to offer the bare minimum of due process protection consistent with the extent of deprivation. The United States Supreme Court vacated the judgment and remanded the case ot the Connecticut Supreme Court for that court to determine whether the statutory procedure was in violation of the federal constitution or the state constitution or both, at 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975). The Connecticut Supreme Court then held that the procedure violated both constitutions, at 170 Conn. 155, 365 A. 2d 393 (1976). The United States Supreme Court then denied certiorari because the judgment rested upon an adequate state ground, at 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976). By its actions in the matter, it is reasonable to conclude that the United States Supreme Court considered its summary affirmance of the decision of the Arizona Supreme Court to be applicable, or the state ground would have been immaterial. The court could not have overlooked its action in Spielman-Fond because it had been specifically distinguished in the Connecticut court’s first opinion and held inapplicable. Although a summary affirmanee is an affirmance of the judgment only, it does prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided in the action in which the judgment was rendered. Mandel v. Bradley, 432 U.S. 173, 97 S. Ct. 2238, 53 L. Ed. 2d 199 (1977).

We now turn to the question whether our mechanics’ and materialmen’s lien statutes meet the due process requirements of the Arkansas Constitution. In this regard, the decisions of the United States Supreme Court are not controlling but they are persuasive. We find that the statutes in question do not violate the due process clause of the Arkansas Constitution.

In considering this question, we begin with the presumptions which prevail in every consideration of a statute’s constitutionality. Every act carries a strong presumption of constitutionality and, before it will be held unconstitutional, the incompatibility between it and the constitution must be clear. Davis v. Cox, 268 Ark. 78, 593 S.W. 2d 180, Jones v. Meats, 256 Ark. 852, 510 S.W. 2d 857; Carter v. State, 255 Ark. 225, 500 S.W. 2d 368. Every reasonable doubt must be resolved in favor of constitutionality. Williams v. State, 253 Ark. 973, 490 S.W. 2d 117; Davis v. Cox, supra. The fact that a statute has been in effect for a long period of time without its validity having been questioned, while not conclusive, is highly persuasive of its constitutional validity. Williams v. State, supra. Our basic statute was passed in 1895 and amended in 1899, 1923, 1961 and 1969. No attack has been made on it until recently.

Due^ process of law is a compound of history, reason and the past course of judicial decisions; it is neither an inflexible procedure universally applicable to every imaginable situation nor a technical concept with a fixed content unrelated to time, place and circumstance. Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 81 S. Ct. 1743,. 6 L. Ed. 2d 1230 (1961). Not only are due process requirements not technical or inflexible, they depend upon the nature of the matter or interest involved. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969);Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); Board of Regents v. Roth, 408 U. S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90; Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975); Hutchison v. Bank of North Carolina, 392 F. Supp. 888 (M.D., N.C., 1975). This concept was given articulate expression by Chief Justice Burger, who spoke for the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). He said:

*** Once it is determined that due process applies, the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. “[Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 6 L. Ed. 2d 1230, 1236, 81 S. Ct. 1743 (1961). To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.

Due process of law does not mandate a hearing in every case of governmental action impairing private interests. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972).

In arriving at the conclusion that our statutes do not violate the due process provision of our own constitution, and in balancing the various factors weighing upon a determination of how much process is due, we must give consideration to the purposes of the legislation and the rights of the creditor as well as the position of the property owner. As early as 1869, we said that the purpose of such acts was to secure the erection of valuable structures and protect the interests of those who may furnish materials and build the same. Galbreath, Stewart & Co. v. Davidson, 25 Ark. 490. Since the earliest days of its existence, this state has consistently maintained an interest in protecting the interests of laborers and materialmen who contribute so much to the enhancement of the value of property on which their labors and supplies are utilized. See, Revised Statutes of Arkansas (1838), Chapter 96 (Act approved and in effect February 23, 1838).

In considering the Arkansas statutes in Chauncey v. Dyke Bros., 119 F. 1 (1902), the Court of Appeals for the Eighth Circuit, said:

*** The lien law in question is a remedial statute. It was enacted to secure to laborers, artisans, and others who perform labor or furnish materials for the erection of buildings on the land of others, payment for such services and materials, by giving them a lien on the structures which they have helped to create, instead of compelling them to rely merely on the personal security of the debtor. That such laws are fair and just, and that they also tend to encourage the erection of buildings by insuring payment for the labor and materials that are expended in their erection, has been generally recognized. ***

It is clear that state action is involved in the lien procedures and that there is a governmental interest in providing a procedure for the protection of mechanics, builders, artisans, workmen, laborers, and furnishers of materials, fixtures, engines, boilers or machinery from the danger of loss by disposition of property to the value of which they have made substantial contribution.

The statutory procedures invovled must be examined, however, in the light of the competing interests of the “debtor,” the “creditor” and the public, and a determination made whether they reasonably accommodate and balance competing interests involved. Connolly Development, Inc. v. Superior Court, 17 Cal.. 3d 803, 132 Cal. Rptr. 477, 553 P. 2d 637 (1976); Hutchison v. Bank of North Carolina, supra. See also, Goldberg v. Kelly, 591 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950); Mathews v. Eldridge, supra; Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974).

In considering these competing interests many years ago, another court, in Jones v. Great Southern Fireproof Hotel Co., 86 F. 370 (6 Cir., 1898) [reversed and remanded on jurisdictional grounds, 177 U.S. 449, 20 S. Ct. 690, 44 L. Ed. 842 (1900)], holding the Ohio mechanics’ and materialmen’s lien constitutional, gave us considerable guidance, saying:

*** In paying off such claims, the owner may, if he exercises proper precaution, pay only his own debt to the contractor. If he be required to pay such subcontractors when nothing is due the principal contractor, it is his own fault. That the liability of the owner in respect to building contracts is restrained in some degree by this statute must be admitted. If he pay in advance, or contract to pay in property, or by an exchange of paper, and his contractor be dishonest or insolvent, he may find himself involved by the contractor’s debts for labor or supplies. This contingency he may not always be able to guard against. But as much may be said of those who furnish labor or materials at the instance of the contractor. Without the lien they must look alone to the contractor, and may not always be able to protect themselves. Inasmuch as the owner actually gets the benefit of their contributions to his property, their equity is a strong one, and the legislature has, in its discretion, determined to cast upon the owner the responsibility of guarding against the defaults of a contractor selected by himself. To protect the class having this equity, the making of building contracts has been regulated. The restraints upon the owner are neither arbitrary nor oppressive; nor are they, under this Ohio statute, any more onerous than required by the necessity of protecting those who actually do the work or furnish the materials by which the owner is benefited. To permit such persons to follow and recover their contributions in kind would be futile to them, and disastrous to the owner. ***

In ultimately affirming this decision after jurisdiction was established, the United States Supreme Court referred to the able and elaborate opinion of the Circuit Court of Appeals, stated that the reasons for holding that the Ohio statute did not deprive the owner of his property without due process, of law were cogently stated in that opinion and contented itself by reference to that opinion and citation of additional authority in support of the views there expressed. Great Southern Fireproof Hotel Co. v. Jones, 193 U.S. 532, 24 S. Ct. 576, 48 L. Ed. 778 (1904).

The Colorado Supreme Court, in Bankers Trust Co. v. El Paso Pre-Cast Co., 192 Colo. 468, 560 P. 2d 457 (1977), has pointed out a factor of some significance in seeking to find accommodation of the competing property interests involved. It said:

To require the full panoply of due process protections before filing a lien statement would impair the notice function of the lien statements. In the interval between the time of the work, the furnishing of materials or services giving rise to the lien claim and the hearing on the lien, prospective purchasers 'would have no notice of the potential lien. The very “deprivation” complained of by Bankers, the difficulty in alienating property against which a lien has been filed, indicates the effectiveness and importance of the notice function of lien statements.

The general public interest in affording protection to laborers, mechanics and materialmen against deprivation of compensation for jrheir contributions to enhancement of the value of an owner’s property is certainly a factor to be considered in determining the necessity for notice and a hearing prior to imposition of the lien. Fuentes v. Shevin, supra; Cook v. Carlson, 364 F. Supp. 24 (S.D., S.D., 1973);Tucker Door & Trim Corp. v. Fifteenth Street Co., 235 Ga. 727, 221 S.E. 2d 433 (1975); Carl A. Morse, Inc. v. Rentar Industrial Development Corp., 56 A.D. 2d 30, 391 N.Y.S. 2d 425 (1977). Clearly, the laborer, mechanic or supplier would suffer the danger of a grave deprivation, if an owner could dispose of property made valuable by labor done or materials supplied by the holder of the lien conferred by our statute. See Connolly Development, Inc. v. Superior Court, supra; Tucker Door & Trim Corp. v. Fifteenth Street Co., supra. For this reason, the creditor seeking to establish a lien has an interest in the property which deserves consideration in the resolution of the due process question. Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974); Connolly, Development, Inc. v. Superior Court, supra; Cook v. Carlson, supra; Tucker Door & Trim Corp. v. Fifteenth Street Co., supra; Carlson A. Morse, Inc. v. Rentar Industrial Develompent Co., supra.

In evaluating the competing interests, it is appropriate to consider the degree of the impact of the application of the statute upon the owner. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969). See also, Cook v. Carlson, supra; Tucker Door & Trim Corp. v. Fifteenth Street Co., supra; Goldberg v. Kelly, supra; North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975). Over three-quarters of a century ago in an attack on the constitutionality of the Ohio mechanics’ and materialmen’s statute which was rejected by the United States Court of Appeals for the Sixth Circuit in Jones v. Great Southern Fireproof Hotel Co., supra, the court touched upon that impact. That court said:

*** [The owner] has voluntarily made a contract with the law before him. He has thereby subjected his property to liability for certain debts of the contractor. His own voluntary consent is an element in the transaction. He knows what the law is, and makes a contract under the law. It is idle to say that under such circumstances he is deprived of his property without due process of law. ***

The Supreme Court of Tennessee had previously taken the same position in upholding its mechanics’ and materialmen’s lien statute when it was attacked as permitting a taking of property without due process of law. Cole Manufacturing Co. v. Falls, 90 Tenn. 466, 16 S.W. 1045 (1891). Among other decisions sustaining mechanics’ and materialmen’s lien statute attacks on the ground that they violated due process requirements are: Prince v. Neal-Millard Co., 124 Ga. 884, 53 S.E. 761 (1905); Ruocco v. Brinker, 380 F. Supp. 432 (3 judge D.C., Fla., 1974); Cook v. Carlson, supra; Bankers Trust Co. v. El Paso Pre-Cast Co., supra; Tucker Door & Trim Corp. v. Fifteenth Street Co., 235 Ga. 727, 221 S.E. 2d 433 (1975); Carl A. Morse, Inc. v. Rentar Industrial Development Corp., 56 A.D. 2d 30, 391 N.Y.S. 2d 425 (1977).

It cannot reasonably be said that the pte-Sniadach decisions upholding the constitutionality of these statutes against “due process” attacks are no longer valid because of a. new concept of due process springing from the decisions in Sniadach and Goldberg v. Kelly, supra. Even the four-justice majority in Fuentes pointed out that these decisions were in the mainstream of earlier decisions on procedural due process requirements and were not a radical departure from established principles.

In considering our own due process requirements, we agree with the distinction made in Spielman-Fond upon the basis that the owner is not deprived of the use or possession of his property for even one day prior to the establishment of the validity of an asserted mechanics’ or materialmen’s lien. The significance of such a distinction was even recognized by the four-judge majority in Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556, reh. den., 409 U.S. 902, 93 S. Ct. 177, 34 L. Ed. 2d 165 (1972). See footnotes 15 and 22 to that opinion. See also, Bankers Trust Co. v. El Paso Pre-Cast Co., 192 Colo. 468, 560 P. 2d 457 (1977); Ruocco v. Brinker, supra; Cook v. Carlson, supra; Tucker Door & Trim Corp. v. Fifteenth Street Co., supra; Carl A. Morse, Inc. v. Rentar Industrial Development Corp., supra.

The generality of the statement in Ewing v. Mytinger & Casselberry, 339 U.S. 594, 70 S. Ct. 870, 94 L. Ed. 1088 (1950), that, where only property rights are concerned, an opportunity at some stage for a hearing and a judicial determination is sufficient to meet due process requirements, may have been limited by later decisions, but it is still applicable where not so limited. All that due process requires is an opportunity for a hearing, appropriate to the nature of the case, at a meaningful time and in a meaningful manner, and the procedural requisites vary, depending upon the importance of the interest involved and the nature of the subsequent proceedings. Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971). A prior hearing is not necessarily required where there is no deprivation of a significant property interest. Boddie v. Connecticut, supra. Mere postponement of the judicial inquiry is not a denial of due process, where only property rights are involved, if the opportunity for ultimate judicial determination of liability is adequate. Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974).

Following the decision in Mitchell v. W. T. Grant Co., supra, a three-judge federal district court held that the Florida Mechanics’ Lien Law met due process requirements and pointed out that prior opportunity to be heard might be essential to due process where the deprivation of property rights was severe and the post-deprivation safeguards inadequate but that it had been held in Mitchell that, where property rights only are involved, mere postponement of the judicial inquiry is not a denial of due process, if the opportunity for ultimate judicial determination of liability is adequate. Ruocco v. Brinker, supra. See also, Carl A. Morse, Inc. v. Rentar Industrial Development Corp., supra.

We have pointed out the reasons for giving special protection to laborers, mechanics and materialmen who have contributed substantially to the enhancement of the value of an owner’s property. It is recognized, even in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969), upon which appellant relies heavily, that a situation requiring special protection to a creditor interest may permit summary procedures without violating federal due process requirements. See also, Cook v. Carlson, 364 F. Supp. 24 (S.D., S.D., 1973); Fucker Door & Trim Corp. v. Fifteenth Street Co., supra; Carl A. Morse, Inc. v. Rentar Industrial Development Corp., supra.

The owner is not without means of protecting himself against the impact of a mechanics’ or materialman’s lien. As pointed out in Cole Manfuacturing Co. v. Falk, 90 Tenn. 466, 16 S.W. 1045 (1891), the owner could withhold the whole or a sufficient amount of the agreed price from the original contractor until after the expiration of 120 days after completion of the work, or he may see to it that subcontractors, laborers and materialmen are paid as the work progresses or he may indemnify himself by requiring a performance and payment bond. See Ark. Stat. Ann. §§ 51-613, -633, -634, -635 (Repl. 1971). The Tennessee court answered the contention that it would be inconvenient for the owner to adopt any of these expedients, saying:

*** The constitutionality of an act of the legislature cannot be successfully impeached upon the ground that it involves the citizen in mere inconvenience. Much more than inconvenience is involved for fhe subcontractor and materialman. Without the protection of such a law, they would be constantly exposed to the danger of an entire loss of labor and material. Hence, as a matter of pure wisdom and justice, there could be but little difficulty in choosing between the situation with such a law and that which would exist without it. A policy that would involve one class of citizens in mere inconvenience for the pecuniary safety of another class is far more wise and just than that which would suffer loss to the latter class rather than entail inconvenience on the former.

As to the contention that the section of the Tennessee statutory provision recognizing the right of the owner to require an indemnifying bond from the original contractor was unconstitutional, the Tennessee court said that this section was simply declarative of an existing legal right of an owner to protect himself against a double payment which results from the security given to mechanics and materialmen by the preceding sections.

A property owner may bring a suit to enjoin the filing of a lien. See Withrow v. Wright, 215 Ark. 654, 222 S.W. 2d 809. He may bring an action to cancel the lien as a cloud on his title. See Judd v. Rieff, 174 Ark. 362, 295 S.W. 370; Speights v. Arkansas Savings & Loan Ass’n., 239 Ark. 587, 393 S.W. 2d 228; Nowlin v. Noteware, 177 Ark. 688, 7 S.W. 2d 791. He may seek a declaratory judgment against a lien claimant to establish that the claimant has no right to a lien. Ark. Stat. Ann. § 34-2501 et seq (repl. 1962); Rabren v. Andalusia Lumber & Supply Co., 279 Ala. 551, 188 So. 2d 279 (1966).

We do not mean to imply that the procedures provided by our mechanics’ and materialmen’s lien statutes have always afforded the most desirable balancing of interests that could be achieved and we note that the General Assembly has appropriately addressed itself recently to a review of its previous actions, a reassessment of the balances heretofore applied and revision of those procedures in order to achieve a better accommodation of the important competing interests. See Ark. Stat. Ann. § 51-608.1 et seq (Supp. 1979). All we hold is that the statutes existing at the time of this action reached a constitutional accommodation of these respective interests. This is all that due process requires. Mitchell v. W. T. Grant Co., supra.

The property interests affected are not of such a nature that minimum due process standards require more than our statutes afford in the way of notice and hearing.

The decree is affirmed.

Hickman and Mays, JJ., dissent.

       It seems that in this case the furnishing of a bond by the contractor was mandatory. See Ark. Stat. Ann. § 51-633.


text:
    Robert LEONARD v. STATE of Arkansas
    CR 80-50
    599 S.W. 2d 138
    Supreme Court of Arkansas
    Opinion delivered June 2, 1980

      Michael Dabney, Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Robert Leonard was convicted of burglary and sentenced by the jury to eight years’ imprisonment and a $1,000 fine. His only argument for reversal is, in effect, that his confession was involuntary as a matter of law.

The facts, undisputed, came largely from Robert’s own testimony at the Denno hearing and before the jury. In late 1978 Robert, aged 16, was confined to a boys’ home in Nebraska for breaking and entering. In February, 1979, he and another youth, Luke Soule, fled by bus to Winslow, Arkansas, where Robert meant to stay with his uncle and aunt if they would not turn him in to be sent back to Nebraska.

Upon reaching Winslow on the morning of February 6 the two boys broke into a house to steal money and food. They ransacked the house, taking money and loading a shotgun, a rifle, and a pistol. When the owner of the house returned with his family and started to enter the house, Luke shot him several times, not fatally. The two boys ran away, Robert throwing away a shotgun and a pistol as he ran. They were picked up later in the day.

Robert made a full confession after he had been warned of his rights. He admits that he told the truth. He did not ask that the officers call an attorney or his parents or his uncle and aunt, whom he was avoiding until he could learn through their son whether they would turn him in. A psychologist who interviewed Robert testified that he was of average intelligence and actually gave no reason for a finding that the confession was not voluntary. We have independently reviewed the facts, but we could not set aside the trial judge's ruling without saying in substance that any confession made by a 16-year-old boy is involuntary as a matter of law. That is not true. Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311 (1969). That case, essentially similar to this one, involved a 15-year-old boy.

Affirmed.