text:
    Kelton R. BROWN v. SUMMERLIN ASSOCIATES, INC.
    80-308
    614 S.W. 2d 227
    Supreme Court of Arkansas
    Opinion delivered April 13, 1981
    [Rehearing denied May 11, 1981.]

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

      Hoover, Jacobs & Storey, by: O. H. Storey, III, for appellee.
   John I. Purtle, Justice.

The appellee brought suit against the appellant for compensation due him as a result of a contract between the parties. The appellant brought a counterclaim against the appellee for an amount greater than that sought by appellee. The contract and the facts were very complicated and the trial court appointed a master for the purpose of hearing the case, examining the evidence, and making a report to the court. The master did report to the court. Objections to the findings of fact and conclusions of law were voiced by the appellant and additional findings of fact and conclusions of law were made by the master. The trial court eventually adopted all of the findings of fact and conclusions of law proposed by the master. The appellant appeals from the decision of the court which adopted the findings of the master.

Appellant argues on appeal that: (1) the court erred in finding that appellee tendered plans for the development of phase II; (2) the court erred in refusing to make a specific finding of the value of services attributable to the work performed on phase II; (3) the court erred in finding appellant was not a third party beneficiary to a boundary line survey; and, (4) the court erred in allowing prejudgment interest.

We cannot say that the findings of fact and conclusions of law which were adopted by the court are clearly erroneous. Therefore, the trial court will be affirmed.

Appellant, Kelton R. Brown, purchased a 100-acre tract of land to be known as the Hillsboro Subdivision. As a condition of the purchase he required the seller to have the property surveyed. Knowing that he was going to use appellee to work for him in platting and surveying the subdivision, appellant suggested to the seller that appellee, Summerlin Associates, Inc., would be a good firm to survey the northern boundary line. In fact, the seller did obtain the services of Summerlin for the purpose of making the survey. Subsequently it was alleged that this survey was not accurate. The appellant alleges that it cost him $1,900 to get a correct survey across the northern boundary of the 100 acres.

The property was purchased in June 1977, and the appellant and the appellee worked together without a written contract until October 1977 at which time they entered into a contract in writing. Although the written agreement required monthly billing and payment, it seems the parties did not strictly follow this requirement of the contract. Their disagreement widened until the appellant eventually ordered the appellee and his crew off the property.

The real issue of this lawsuit involves the supplemental findings and conclusions as adopted by the master on May 5, 1980. On August 6, 1980, the court adopted the report of the master and all findings and conclusions as well as those in the supplemental findings and conclusions previously mentioned. Since the findings and conclusions are written to cover 15 pages, they will not be set out verbatim in this opinion.

Appellant insists that the court erred in finding that appellee tendered the plans for phase II of the development. The court found that the appellee had prepared the plans and had presented them to the City Planning Commission for approval with the approval of the appellant. In fact, the plans were approved by the Planning Commission. We think the evidence presented is of such force that we cannot say the finding was clearly erroneous. Rules of Civil Procedure, Rule 52, provides that the findings of a master, to the extent adopted by the court, shall be considered as findings of the court. Therefore, we could not set aside the ruling of the master, which had been adopted by the court, unless we could say it was clearly erroneous.

Appellant next argues that the court erred in refusing to make a specific finding of the value of services attributable to the production of the plat for phase II. The record indicates that appellee claimed $16,794.64 for fees due him with respect to the work performed on phase II. After taking testimony on this matter the master stated:

After considering the testimony of experts, who expressed opinions concerning the reasonableness of the fees of Mr. Summerlin for his work on Phase II, and the testimony of appellant concerning their problems with Phase II and the total development, I am of the opinion that appellee owes appellant a further sum of $11,000.-00 on a Quantum Meruit basis.

The master devoted at least two pages of his report to this particular point. Although appellee presented bills in excess of $16,000, the master found he was only due the sum of $11,000 on phase II. It seems that the master considered a lot of conflicting testimony and reached the conclusions set forth above. Again, we are unable to say that the findings were clearly erroneous.

The appellant insists that the court was wrong in holding that he was not a third party beneficiary to the contract between appellee and the seller of the property for the survey of the northern boundary. True, appellant suggested to the seller of the property that appellee would be a good firm to survey the northern boundary. However, nothing at all was said between the parties to indicate that appellant had a right to rely on that survey because he did not in fact give any consideration for the survey. No doubt, he expected to benefit from it but mere expectation is insufficient to give rise to that of an intended beneficiary under the contract. The evidence was sufficient for the master to have found that appellant was a third party beneficiary. Had we been deciding the question ourselves we might have decided differently. However, we cannot say that the finding was clearly erroneous. There is a presumption that parties contract only for the benefit of themselves and a contract will not be considered as having been made for the use and benefit of a third party unless it clearly appears that such was the intention of the parties. Howell, et al v. Worth James Const. Co., 259 Ark. 627, 535 S.W. 2d 826 (1976).

Finally, the appellant argues that prejudgment interest was improperly allowed. Whenever a recovery is capable of computation, both as to time and amount, prejudgment interest is allowable. Crow v. State, 23 Ark. 684 (1861). We have held that where the damages cannot be ascertained at the time of the loss, interest before judgment should not be allowed. We recently held that whenever damages are ascertainable as to amount and time, then it is proper to allow prejudgment interest. Lovell v. Marianna Fed. S&L Assn., 267 Ark. 164, 589 S.W. 2d 577 (1979).

We cannot say that any point argued on appeal was clearly erroneous pursuant to Rule 52. In view of the fact that appellant only challenges the findings and conclusions of the master, which were adopted in toto by the court, we must affirm.

Affirmed.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    Bernard A. BALTZ and Margaret BALTZ, His Wife v. SECURITY BANK OF PARAGOULD, Paragould, Arkansas
    81-30
    613 S.W. 2d 833
    Supreme Court of Arkansas
    Opinion delivered April 13, 1981

      King & King, by: Jim King, for appellants.

      C. Joseph Calvin, for appellee.
   John I. Purtle, Justice.

This is an appeal from an order of the Greene County Circuit Court dismissing the complaint filed by appellants. The court dismissed the complaint on the grounds that the cause should have been joined in a chancery court action which was pending at the time the complaint was filed.

Appellants argue three grounds for reversal: (1) the court erred in allowing the defense of res judicata to be presented by a motion to dismiss; (2) the court erred in holding that it was mandatory for appellants to join all claims in the pending chancery suit; and (3) the court erred in finding that the prior chancery court action was res judicata to the claim filed herein.

On October 28, 1976, appellants’ predecessor in title entered into a lease with B & W Farms concerning certain farm lands in Greene County, Arkansas. The lease was to run through calendar year 1980. B & W became insolvent about the time the appellants purchased the property which is the subject matter of these lawsuits. B & W assigned the lease to the present appellee. On March 29, 1979, the appellants filed a suit in the Greene County Chancery Court in which they sought to terminate the lease and collect damages from B & W Farms, Inc. Apparently the issues were joined, and the case was heard on March 3, 1980. The chancery court, among other things, held that the appellee would have possession of the farm lands for calendar year 1980. However, on February 27, 1980, the appellants had filed an action in the Greene County Circuit Court seeking damages for failure of the appellee to comply with and perform the covenants contained in the lease of October 28, 1976. The chancery suit was tried about a week before the appellee filed its answer to the action in circuit court. The answer was filed on March 11, 1980, and the right to plead further was reserved. On May 13, 1980, the appellee filed a motion to dismiss which was heard by the court on June 13, 1980. The circuit court case was dismissed by the court on June 24, 1980. In dismissing the complaint with prejudice the court held that the appellants were mandatorily charged with joining the present cause of action with the one pending in the chancery court.

We agree with the appellants that res judicata is an affirmative defense which must ordinarily be raised by answer; however, there are exceptions to the general rule. Southern Farmers Assn., Inc. v. Wyatt, 234 Ark. 649, 353 S.W. 2d 531 (1962); May v. Edwards, 258 Ark. 871, 529 S.W. 2d 647 (1975). In order for res judicata to be a bar, the issue sought to be barred must necessarily have been within the issue or an issue which could have been litigated in the prior action. Hastings v. Rose Courts, 237 Ark. 426, 373 S.W. 2d 583 (1963). However, we believe this case is controlled by the Rules of Civil Procedure and will be discussed in the next paragraph.

The second argument urged by the appellants is that the court erroneously held it was mandatory for the appellants to join the present action in the one abeady pending in circuit court. We disagree with the holding of the court in this matter inasmuch as Rule 18(a) of the Rules of Civil Procedure states that a party asserting a claim for relief as an original claim may join any other cause of action that he may have against the opposing party. The foregoing rule states that it shall not affect the obligations of a party under Rule 13(a). The latter rule relates to compulsory counterclaims. This obviously was not a counterclaim inasmuch as it sought damages from the appellee as a result of the failure to perform its required duties in accordance with the lease. Since this rule relates only to counterclaims, it is inapplicable in the present case.

The last point argued by appellants is that the chancery court action should not have been allowed as a bar to the present action. This is included in the first point argued for reversal. In discussing the first two arguments we have necessarily covered this one inasmuch as we have cited reasons for allowing the circuit court action to be maintained even though the chancery action was still pending at the time suit was filed in circuit court. It would have been impossible for the appellants to have originally asserted the present claim in the suit filed in chancery. It could be argued that since the other action was still pending, the present claim should have been filed in the same action. While this argument sounds good it would have the effect of prolonging the determination of the issues in the chancery court proceeding. Thus, under a long-term lease the parties might have to wait until the entire lease was terminated before finding whether they were entitled to damages or other relief during the life of the lease. In examining the chancery court case we can readily see that the issues in the present case were not decided by the chancellor. Since every party is entitled to one fair trial of a question in dispute, it follows that the appellants are entitled to have their case heard in the circuit court.

Reversed and remanded.


author: Robert H. Dudley, Justice.

text:
    Barbara R. McLEMORE v. Raynell ELLIOT, Executrix
    81-12
    614 S.W. 2d 226
    Supreme Court of Arkansas
    Opinion delivered April 13, 1981
    [Rehearing denied May 11, 1981.]

      Rowland & Templeton, by: Ben D. Rowland, Jr., for appellant.

      David H. Williams, for appellee.
   Robert H. Dudley, Justice.

This appeal arises from a consolidation of two cases in the trial court. One is a Chancery Court suit for a declaratory judgment filed by the appellant. The other is a Probate Court will contest between the same parties in which the appellant insists the decedent’s first will is valid, and the appellee insists the second will is the valid one. The transcript reflects a trial replete with bitterness and bickering. That attitude has continued.

The appellant’s brief attributes seriously wrongful conduct to appellee’s counsel and bias to the trial judge. Throughout the brief these allegations are made in intemperate and disrespectful language. Appellant has baldly violated our Rule 6 which provides:

CONTEMPT

No argument, brief or motion, filed or made in this Court, shall contain language showing disrespect for the trial court.

It is not the allegation of bias that necessitates our imposing Rule 6, but rather it is the accusations which appear as assertions of fact, which are wholly unsupported by proof in the record and which are disrespectfully stated. For example, at page 186 of her brief appellant admits she erred by stating:

The appellant has accused David H. Williams of deliberately filing the Probate of the Estate of James H. Todd, Deceased in 1st Division Chancery in order to have the matter heard by Judge Munson. That is clearly erroneous. The letter of James H. Akins, Jr. (T. 11, B. 4) and the Order Substituting Attorney of Record for Estate (T. 12, B. 5) clearly indicate Akins filed the probate proceeding and Williams succeeded him.

Then, at page 234, appellant once again uses the same transcript citations to make a similar serious accusation as an assertion of fact which is, once again, unsupported by proof:

1. Raynell Elliot had to find an attorney who could “influence” Judge Lee Munson. James H. Akins, Jr. withdrew and his letter (T. 11) made it clear that he expected to be succeeded by Paul Johnson. However, there are three attorneys who practice in Paul Johnson’s office, and David Williams appears in the Order Substituting Attorney of Record. (T. 12). Thus, regardless of the merits of her case, Ms. Elliot had secured the services of a former almost-chief-deputy-prosecuting-attorney. ...

We have examined the brief to see if we could strike only some parts as was done in Dunbar v. Bell, 90 Ark. 316, 119 S.W. 670 (1909). We have examined the Probate Court appeal, the Chancery Court appeal, and each of the points relied upon, but we find the intemperate and distasteful language spread throughout all points in both cases. We have no choice other than to strike it entirely. This brief is an inexcusable breach of the obligation of professional courtesy that we expect on the part of the members of the bar. All copies of this brief will be stricken in its entirety from the files of this Court.

Affirmed.

The Chief Justice would affirm pursuant to Rule 9.

Holt, J., not participating.


text:
    Gerald SIMS v. STATE of Arkansas
    CR 80-259
    613 S.W. 2d 820
    Supreme Court of Arkansas
    Opinion delivered April 13, 1981

      E. Alvin Schay, State Appellate Defender, by: Ray Hartenstein, Chief Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: A. Carter Hardage, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

In a bifurcated hearing the appellant was found guilty of burglary and was sentenced to serve 30 years in prison as a habitual offender. While admitting that the evidence is sufficient to convict him of theft, the appellant appeals claiming that the evidence is insufficient to convict him of burglary.

A scenario of the facts is as follows: The appellant entered a Roadrunner service station and convenience store on Asher Avenue in Little Rock. There was only one front entrance to the building and immediately inside the door was a counter with a cash register. There was shelving in a straight line behind the counter except on the left side of the room where there was an aisle leading to the back room. A Roadrunner assistant supervisor, who had just gone off duty, noticed appellant walking to the back of the store. This witness saw appellant open the door that goes into a back room of the store; the door was either closed completely, or within a quarter of an inch of being completely closed. An “employees only” sign was posted on the door. The witness followed and found appellant going through the manager’s desk. The top right hand drawer of the desk was open and appellant had his hand inside a money bag that was inside the drawer. The witness yelled to the cashier to call the police and the appellant dropped the money bag. When the police arrived, the appellant told them he was in the back room looking for a restroom. Actually, access to the restrooms is outside of the store but the two doors there are not marked as restrooms — they are both marked “private.” One could not tell from the outside that they are restrooms. In the back room where appellant was caught, there is a sink which is visible upon opening the door, but there are no restroom facilities available to the public either inside or outside the store.

Ark. Stat. Ann. § 41-2002 (1) (Repl. 1977) provides that:

A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.

The key language in this statute as it pertains to the appellant’s actions is “enters or remains unlawfully.” This language is clarified in Ark. Stat. Ann. § 41-2001 (3) (Repl. 1977).

... A person who enters or remains in or upon premises that are at the time open to the public does so with license and privilege, regardless of his purpose, unless he defies a lawful order not to enter or remain personally communicated to him by the owner of such premises or some other person authorized by the owner. A license or privilege to enter or remain in or upon premises only part of which are open to the public is not a license or privilege to remain in a part of the premises not open to the public.

Appellant contends that there was no personal communication to him that entry into the back room was privileged, thus making it licensed within the meaning of the statute. However, the back room was not open to the public because the door was closed and marked “employees only.” As the emphasized language in the statute illustrates, the appellant did not have a license or privilege to enter the back part of the store.

Appellant also contends that when circumstantial evidence is relied upon to support a conviction, every other reasonable hypothesis must be excluded, i.e. , appellant may have been in the back room looking for a restroom. But the appellant was found with his hand in the bag. Clearly this evidence is not circumstantial.

Appellant does not deny that he was attempting to steal the money, but argues that his intent to steal did not arise until after he realized the back room did not contain a restroom. However, appellant’s intent can be inferred from circumstantial evidence. In Chaviers v. State, 267 Ark. 6, 588 S.W. 2d 434 (1979), we said:

... by the nature of things, one’s intent or purpose, being a state of mind, can seldom be positively known to others so it ordinarily cannot be shown by direct evidence, but may be inferred from the facts and circumstances shown in evidence.

Appellant’s intent to commit a burglary can be inferred from the facts presentéd — appellant walked around in the back of the store, went through a door that was marked for employees only and was found with his hand in a money bag. We find that this evidence supports the burglary conviction.

Affirmed.


author: Steele Hays, Justice.

text:
    Ellen CASEY, Benton County, Delinquent Tax Collector v. SCOTT PAPER COMPANY
    80-275
    613 S.W. 2d 821
    Supreme Court of Arkansas
    Opinion delivered April 13, 1981

      David S. Clinger, Pros. Atty., for appellant.

      Wright, Lindsey & Jennings and Croxton & Boyer, for appellee.
   Steele Hays, Justice.

Scott Paper Company is a manufacturer of “limited life,” non-woven products made from rayon and polyester at its plant at Rogers, Arkansas. Scott commenced its Rogers operation in 1974 and requested a tax exemption pursuant to Amendment 12 of the Arkansas Constitution and Ark. Stat. Ann. § 84-208, enacted in furtherance of the amendment. The exemption was granted for 1974 and 1975 by the Assessor of Benton County; however, when that office changed hands the successor in office disallowed the exemption upon the determination that it applied only to cotton fibers or to fiber goods which existed in 1926, when Amendment 12 was adopted.

Scott contested the disallowance and the delinquent tax collector filed suit to recover $60,404.35 in taxes assessed against the equipment. The trial court held that Scott’s Rogers plant was a textile mill for the manufacture of fiber goods and that rayon and polyester were fibers within the language of Amendment 12, and, therefore, entitled to the exemption. Appellant appeals on two points: that the court erred as a matter of law in applying the exemption to a textile mill using only rayon and polyester raw materials and that there was no substantial evidence to support the judgment. We find no error by the trial court and, accordingly, we affirm the judgment below.

Amendment 12 to the Arkansas Constitution, provides:

All capital invested in a textile mill in this State for the manufacture of cotton and fiber goods in any manner shall be and is hereby declared to be exempt from taxation for a period of seven years from the date of the location of said textile mill.

Ark. Stat. Ann. § 84-208 effectuates the purpose of Amendment 12 and applies to property used exclusively in the business of manufacturing “cotton or other fiber goods in any manner. ...”

The settled rule of interpreting our Constitution was well stated in Jackson v. Madison County, 175 Ark. 826, 300 S.W. 924 (1927) where we said:

... it is the duty of the courts to give effect to all provisions of an amendment and harmonize them by construing the language used according to its natural and ordinary meaning. ...

Jackson, at 829.

Witnesses for Scott testified that the Rogers plant produced non-woven goods from rayon and polyester fibers chemically bonded together with a latex. The goods are designed for single usage, such as disposable diapers, or limited usage, as in operating rooms and hospitals. Several witnesses, including the head of the Textile Department of Clemson University, testified concerning the history of the textile industry and characterized Scott’s operation as a textile mill; that rayon and polyester were “fibers,” capable of being woven; and that the materials produced by Scott were “fiber goods.” In short, there was ample evidence to support the findings of the trial court that the manufacturing process of Scott came within the ordinary meaning of the term “textile” and that rayon and polyester came within the definition of “fibers.”

Appellant insists that there is no evidence that what Scott does now would have been regarded as textile manufacturing in 1926, that rayon and polyester were not commercially produced in Arkansas until 1955 and, hence, these words were nonexistent in the vocabulary of the framers of Amendment 12; therefore, they could not as a matter of law have come within the meaning of the word “fiber” as it was then used and understood. We must reject this constrictive concept of construction, as it would require giving words an extraordinary usage rather than ordinary and natural meaning the law requires. Jackson v. Madison County, supra. Furthermore, the argument is predicated entirely on surmise — that because rayon and polyester were not commercially produced in Arkansas until 1955, the drafters of our laws could not have known of them. We are unwilling to elevate that supposition to the level of fact. This is not proof that synthetic fibers were unknown and unheard of in textile manufacturing in 1926.

The argument is pressed upon us that textile manufacturing in 1926 was almost entirely a process of spinning, knitting or weaving, whereas Scott’s method uses none of these, but rather, it bonds the fibers chemically. Unquestionably that is so, but there is no suggestion from the amendment that it was this process that the exemption sought to enhance. Rather, it is evident from the amendment itself that the intent is broad, as the exemption purports to apply to the “manufacture of cotton and fiber goods in any manner.” (Emphasis supplied.)

Appellant insists that Amendment 12 contains ambiguities that can be clarified only by referring to the historical setting of the amendment and, hence, to extrinsic evidence. Appellant cites us to the ballot title by which the electorate acted on the proposed amendment at the general election of 1926:

Purpose of the Amendment is to exempt from taxation, for a period of seven years, all capital invested in textile mills manufacturing cotton goods.

But the obvious fact is that the ballot title is poorly drawn and should have read “cotton and fiber goods” in accordance with the proposal as adopted by the legislature. The two versions cannot be reconciled and to adopt appellant’s argument would require that we give dominance to the wording of the ballot title and subservience to the clear wording of the amendment itself. When the wording of an enactment is self-evident, we need not look elsewhere to determine the meaning and intent. Ellison v. Oliver, 147 Ark. 252, 227 S.W. 586 (1921); Weston v. State, 258 Ark. 707, 528 S.W. 2d 412 (1975).

Certainly any interest in the 1920s in attracting textile manufacturers to Arkansas would be expected to involve cotton primarily. But if, as we perceive, the objective was to increase employment, then the means employed to attract manufacturers would doubtless be expansive rather than restrictive. We agree with the trial court that whatever the state of knowledge may have been in 1926 concerning the textile industry and the use of synthetics, it would nevertheless have been a simple matter for the language of Amendment 12 to limit the exemption to cotton fibers, or natural fibers, had that been the intent.

We are entirely satisfied that the words: “a textile mill... for the manufacture of cotton and fiber goods in any manner” when taken in their natural and ordinary meaning, are inclusive of non-woven polyester and rayon fabrics. We agree with the trial court’s dismissal of the appellant’s suit and we affirm that decision.


author: Steele Hays, Justice. Robert H. Dudley, Justice,

text:
    Jimmy WATSON v. Jimmie FRIERSON
    80-296
    613 S.W. 2d 824
    Supreme Court of Arkansas
    Opinion delivered April 13, 1981

      Mike J. Etoch, Jr., for appellant.

      Laser, Sharp & Huckabay, P.A., for appellee.
   Steele Hays, Justice.

Appellant initiated this litigation following an automobile collision with appellee at a Helena intersection. Both parties sued for property damage and personal injuries. The proof was offsetting — appellant had the protection of a stop sign, but admittedly was drinking. The jury determined that the fault was equal and declined to award damages to either.

On appeal, appellant charges that it was error to admit the results of an intoximeter test in a civil case and that no proper foundation was laid. We find no error by the trial court.

The evidence complained of is the testimony of Officers Todd Wetzel and Jack Milan of the Helena Police Department relating to an intoximeter test given appellant on March 12, 1978, shortly after the accident. Milan testified that he was certified by the State to operate the intoximeter, a gas chromatograph machine, and that he witnessed the testing of appellant by another officer. Officer Wetzel testified that his duties included supervision of the machine; that the machine was certified periodically by the State Board of Health; though not certain, he believed the machine was certified in March, 1978; that the only time the machine was not certified was a two-week period in 1979; that only the State Board of Health could certify that the machine was operating correctly; that in his opinion the machine was operating properly at the time, and that the results of appellant’s test showed an alcohol contest of .13% by weight and volume.

Appellant’s challenge to the foundation is that Ark. Stat. Ann. § 75-1031.1 (C) (Repl. 1979) and regulations of the State Board of Health provide requirements which must be met before the test results become admissible as evidence. He argues that the appellee has the burden of showing that the Department has approved the methods used in conducting the test, the machine itself, and the person doing the testing and that the burden has not been met with respect to the machine and the individual conducting the test, Officer Sam McDonald. But the machine, according to Officer Wetzel’s testimony, was certified in March 1978 and though some uncertainty is evident, he stated that the only time the machine lacked certification was a two-week period in 1979. As to whether Officer McDonald is or is not certified, the record is silent, but Officer Milan, who is certified, was present and witnessed the proceedings and this is sufficient, we believe, in a civil trial to warrant the admission of the evidence. Even in a criminal case, substantial compliance, rather than literal, is sufficient to render such evidence admissible. In a civil case, the barriers are lower still. Munn v. State, 257 Ark. 1057, 521 S.W. 2d 535 (1975).

Appellant cites us to Newton & Fitzgerald v. Clark, 266 Ark. 237, 582 S.W. 2d 955 (1979) and Jones v. City of Forrest City, 239 Ark. 211, 388 S.W. 2d 386 (1965). Jones v. City of Forrest City is a criminal case and Newton & Fitzgerald v. Clark is a civil case. Both cases involved the analysis of blood samples rather than breath. In Newton the flaws were twofold: a laboratory technician rather than a licensed physician supervised the withdrawal of the blood as required by § 75-1045(C)(2) and evidently the method of testing lacked reliability. In Jones the major impediment to the admissibility was due to a gap in the chain of evidence, creating uncertainty as to whether the blood sample tested was actually the sample taken from appellant. The court went on to find that there was no evidence that the method of testing was approved by either the State Board of Health or the Arkansas State Police Director as required by Ark. Stat. Ann. § 75-1031.1(C). The departure from the requirements of the statutes in these cases appears to be such that even substantial compliance is lacking, and on this basis the evidence was held inadmissible.

Appellant’s second point is that even if a proper foundation were laid, tests for the presence of alcohol are designed for criminal proceedings and are not admissible in civil trials. He cites Wilson v. Coston, 239 Ark. 515, 390 S.W. 2d 445 (1965). But the error in Coston was that the trial court instructed the jury in a civil case that it was to presume that the appellant was under the influence of intoxicating liquor if the proof established levels of alcohol present in the blood as provided in § 75-1031 1. Here, the court gave no instruction to the jury regarding the results of the intoximeter test and, thus, the jury was not bound to a finding of intoxication, as in Coston.

Two decisions bolster the result reached here: St. Paul Ins. Co. v. Touzin, 267 Ark. 539, 592 S.W. 2d 447 (1980) and Judy v. McDaniel, 247 Ark. 409, 445 S.W. 2d 722 (1969). In Touzin we reversed the Court of Appeals and held that the results of a blood-alcohol test in substantial compliance with the requirements of the statute, § 75-1045 and 1046, and Health Department regulations, were admissible in evidence. Touzin was a Workers’ Compensation case and, as such, subject to less stringent rules of evidence, but that distinction was addressed by the dictum: “... the testimony would have been admissible even under the more strict rules that prevail in a court of law. The statutes regulating blood-alcohol tests are primarily intended for criminal cases, but they are pertinent when such a test is used in civil litigation.”

In Judy, a civil suit over personal injuries, the decision reached was that while it may have been error to admit testimony that Judy registered .12 on the intoximeter, it was not prejudicial to him in the light of his own admission that he had consumed half of a six pack of beer and so not a ground for reversal. The same may be said of the facts of this case.

Rule 402 of the Uniform Rules of Evidence states that all relevent evidence is admissible except where otherwise provided by statute, or the rules of evidence applicable to the courts of this State. One of the issues of this case was appellant’s sobriety at the time of the collision. The results of an intoximeter test administered immediately after the incident are plainly relevant to the issue. We find nothing in the rules or the statutes cited which excludes the evidence appellant objects to and the trial court properly admitted it.

The judgment is affirmed.

Purtle and Dudley, JJ., dissent.

Holt, J., not participating.

Robert H. Dudley, Justice,

dissenting. The majority opinion holds that the result of a valid test of the alcohol content of one’s blood, by weight and volume, is admissible evidence in a civil case. I concur with that substantive statement of law, but respectfully dissent from its procedural application in this case.

Officer McDonald administered the test, but did not testify. Officer Milan was in the room at the time McDonald administered the test. Milan was allowed to testify about the results of the test McDonald administered, even though Milan had no personal recollection of the results and relied on McDonald’s writings for his testimony. This is hearsay testimony. By allowing it in evidence, the appellant was denied cross-examination on two important issues: first, whether McDonald was competent to administer the test and whether the testing machine was properly certified, and second, the manner in which McDonald administered the test and reached the result.

The majority of the members of the Court feel that the hearsay objection was not properly made. If that is correct, the issue is waived. For a complete discussion of our rule and the exceptions to the lack of objections, see Wicks v. State, 270 Ark. 781 at 785, 606 S.W. 2d 366 (1980).

The appellant objected to “no proper foundation.” “Hearsay” might have been a better objection, but “no proper foundation” was sufficient under these circumstances because the result is that evidence was admitted without showing that the method of testing and the test result were reliable.

Because I feel that the hearsay objection was not waived, I dissent from the majority’s allowing the use of the intoximeter result in this case. However, I concur with the substantive statement of law given in this case.

I am authorized to state that Mr. Justice Purtle joins in this opinion.


author: Per Curiam.

text:
    Steven A. MAHURIN v. Hon. David BOGARD, Judge, Pulaski County Probate Court, Third Division, and Dr. James L. THOMAS, Commissioner of Mental Health, Arkansas State Hospital, Little Rock, Arkansas
    81-65
    613 S.W. 2d 826
    Supreme Court of Arkansas
    Opinion delivered April 13, 1981

      William R. Simpson, Jr., Public Defender, by: Kelly Carithers and Robert J. Price, for petitioner.

      Wilbur C. Bentley, Pros. Atty., Sixth Judicial District, by: Larry D. Vaught-, and Steve Clark, Atty. Gen., for respondents.
   Per Curiam.

Petitioner was involuntarily committed to the Arkansas State Hospital and asks this Court to free him by a writ of habeas corpus or by a writ of mandamus ordering respondent Probate Judge David Bogard to set him free.

On March 18, 1981, Act 593 of 1981 became effective. Section 5 (b) (2) provides that the presence of a respondent to an involuntary commitment need not be required at the initial, or probable cause hearing, if the trial judge makes a finding that the respondent’s appearance would be detrimental to his mental health, well-being or treatment, or that he is unable to appear, or that he is disruptive at the hearing.

On March 25, the father of the petitioner filed a pleading in Probate Court asking that petitioner be involuntarily committed to the Arkansas State Hospital as a gravely disabled person. On the same day the trial judge conducted a preliminary hearing, without the petitioner present or without finding that his presence was excused by the language of the act which had become effective six days earlier.

On March 31, prior to the filing of this petition, the trial court conducted a hearing with petitioner and his attorney present. Since thathtime there has been no illegal confinement for which a writ of habeas corpus should be issued. The Probate Court clearly has jurisdiction. Petitioner has presented no allegation that the respondent refused to act concerning this matter, for which a writ of mandamus should be issued. Because of the type of petition filed, we do not reach the issue of the exact date the commitment ends.

Writs denied.


author: Richard B. Adkisson, Chief Justice.

text:
    TAURUS LEASING CORPORATION v. Jerry HOWARD d/b/a JERRY HOWARD, D.D.S. et al
    81-19
    614 S.W. 2d 502
    Supreme Court of Arkansas
    Opinion delivered April 20, 1981
    [Rehearing denied May 18, 1981.]

      W. J, Walker, for appellant.

      Overby, Moody & Peace, by: Edward O. Moody, and Wilbur C. Bentley, Pros. Atty., by: Hugh L. Brown and Larry Page, Deputy Pros. Attys., for appellees.
   Richard B. Adkisson, Chief Justice.

Appellant, Taurus

Leasing Corporation, brings this appeal from a summary judgment declaring void a written contract between it and appellee, Jerry Howard, as being usurious and made in violation of the Wingo Act, Ark. Stat. Ann. § 64-1201 et seq. (Repl. 1980); and, from a summary judgment granting the appellee, State of Arkansas, a money penalty against it for doing business in Arkansas in violation of the Wingo Act.

Summary judgment is properly granted if the moving party has established of record that no genuine issue of material fact remains for trial. See Rule 56, Ark. Rules Civ. Proc., Ark. Stat. Ann., Vol. 3A (Repl. 1979); UPI v. Hernreich, 241 Ark. 36, 406 S.W. 2d 317 (1966).

In this case the trial court apparently granted summary judgment based upon conclusory allegations in the complaint and upon affidavits stating that a written contract for the sale and lease-back of office equipment had been entered into between appellant, a foreign corporation, and appellee, Howard, an Arkansas resident. However, we find no admitted allegations, supporting affidavits, or other proof of record from which the trial court could have found that the contract was made in Arkansas; therefore, the unresolved fact question of where the contract was made is one that remains for trial as to each matter upon which summary judgment was granted.

Reversed and remanded.

Holt, J., not participating.


author: George Rose Smith, Justice.

text:
    QUINN-MOORE et al v. Beverly J. LAMBERT, Bank Commissioner et al
    80-150
    614 S.W. 2d 230
    Supreme Court of Arkansas
    Opinion delivered April 20, 1981

      Friday, Eldredge & Clark, by: Herschel H. Friday and George Pike, Jr., and Stephen A. White, for appellants.

      Steve Clark, Atty. Gen., by: Merl Barnes, Deputy Atty. Gen. and Frederick K. Campbell, Asst. Atty. Gen., for Beverly J. Lambert, Steve Clark and State of Arkansas.

      James E. Youngdahl, for AFL-CIO of Arkansas.

      Central Arkansas Legal Services, by: Bill Rahn and Thomas J. Ginger, for Elizabeth McAllester.
   George Rose Smith, Justice.

This is a test case brought to challenge the constitutional validity of Article 19, § 13, of the 1874 Constitution of Arkansas, which provides that all contracts for a greater rate of interest than 10% per annum shall be void as to principal and interest. More than 130 witnesses presented testimony, much of it cumulative, at a six-week trial. This appeal is from a judgment holding that our constitutional provision does not offend the due process clause, the equal protection clause, or the commerce clause of the Constitution of the United States.

The only borrower among the appellants is Quinn-Moore, a joint venture which tried to borrow $385,000 to improve its truck-stop near Little Rock. Quinn-Moore arranged to borrow the money from two Arkansas banks at 12% interest, but the State Bank Commissioner ruled that the loan would be illegal. Quinn-Moore and the two banks then brought this action for a declaratory judgment, naming the Bank Commissioner and the Attorney General as defendants. Intervenors in support of the plaintiffs included the Arkansas Bankers Association, the Arkansas Savings & Loan Association, the Arkansas Mortgage Bankers Association, and others often falling within the definition of a moneyed corporation: “A corporation authorized to engage in the business of using money for the sake of making a profit upon it as money, as in case of banks, insurance companies, etc.” Webster’s Second New International Dictionary (1939). A few consumer representatives intervened in support of the defendants.

The essential facts, winnowed from a 3,500-page record, are not complicated. Banks, savings and loan associations, and similar moneyed corporations engage in lending money, but they do not have and doubtless cannot have the resources to lend their own money, in the sense of money contributed by their stockholders. Instead, financial institutions obtain money from the public by means of checking accounts, savings accounts, certificates of deposit, and other forms of borrowing. Those funds are then lent to others at an interest rate higher than the institutions themselves are paying.

For a century following the adoption of our 1874 Constitution the 10% interest ceiling presented no particular problems to moneyed corporations. They were able to pay not more than 2Vi% interest on deposits and to relend profitably at 8% to 10%. But in the first half of the 1970’s interest rates began to rise nationally at a rapid pace. Contributing factors were the Federal Reserve Board’s attempts to halt inflation by means of high interest rates and the action of certain central banks in New York City and elsewhere fixing their prime interest rates at high levels. Arkansas financial institutions naturally had to pay higher interest rates to obtain money to lend, but the 10% usury limit fixed a ceiling that narrowed the margin of profit. Congress provided some relief by permitting certain institutions to charge more than the state’s maximum. Congress also permitted the sale of money market certificates, beginning in June, 1978. Those certificates, however, paid such high rates of interest that they attracted money from checking and savings accounts and thus, as one expert witness put it, were a disaster to the supply of loanable funds.

When this case was tried in the fall of 1979 the moneyed corporations were unquestionably operating profitably. The Bank Commissioner testified that the institutions’ growth and profits had not been affected, but the squeeze was beginning to show. Various economies had been put into effect. One bank had reduced its staff by 71 persons; a mortgage company had dropped from 17 employees to 12. Even so, profits continued. One witness’s complaint was that his bank has only $325,000,000 out on loan, when without the 10% interest ceiling it might have been $400,-000,000. There was other similar testimony.

The witnesses tended to stress not so much that the moneyed corporations were being hurt but that consumers were suffering. Some banks had stopped making loans of less than $2,000; others had somewhat lower minimums. About 15 affidavits, as abstracted, contain an identical sentence: “Borrowers are being hurt because of our institution’s inability to loan money to them.” Yet the general public is not shown to be dissatisfied with the 10% usury limit. The Secretary of State testified that at the 1974 general election a proposal to remove the interest ceiling by authorizing the legislature to control it was defeated by a vote of more than six to one, 426,197 to 66,905.

As far as we know, usury laws exist in all the states. See Usury: Issues in Calculation, 34 Ark. L. Rev. 442, 444 (1980). Such laws are based upon a universally recognized public policy that protects necessitous borrowers from the exaction of exorbitant interest by unscrupulous lenders. Indeed, the appellants themselves concede the need for some ceiling on interest rates, for they say about the 1874 constitutional limitation: “The law should be stricken so that reasonable laws governing the use of money can be enacted. There are literally hundreds of rational methods of regulating interest rates. ... The law must be stricken to make way for rational regulation.” Thus the argument stresses reasonableness: Some interest ceiling is permissible, but a limitation of 10% is arbitrary.

We turn first to the appellants’ principal point, that the challenged rate is so irrational as to deny them due process of law. Counsel impliedly concede that they have not been able to find a single case decided anywhere at any time holding that an interest ceiling denies due process of law. Faced with this total want of supporting authority, counsel have come up with a theory that interest is the price paid for money and therefore any regulation of interest rates is a forbidden method of price fixing. Actually, money is the medium of exchange and cannot itself have a price except in relation to foreign currency.

Two lines of cases are cited, but neither bears any real resemblance to the case at hand. First are public utility rate cases, in which the courts hold that a rate of return cannot be so low as to confiscate the utility company’s property. But the clear-cut distinction is that a public utility devotes its property to the public service, must serve any and all members of the community without discrimination, and is therefore entitled to a guaranteed but reasonably limited return on its investment. By contrast, the appellants do not devote their property to the public service, are entitled to pick and choose those to whom they will make loans, and are not entitled to a guaranteed return of any kind.

Second are cases invalidating laws that seek to set a minimum price for goods or services having no bearing upon the public health or safety. We have, for example, struck down a law making it a misdemeanor for a barber to charge less for a haircut or shave than the minimum price fixed by the State Board of Barber Examiners. Noble v. Davis, 204 Ark. 156, 161 S.W. 2d 189 (1942). In a later case we struck down a “fair trade” law permitting a manufacturer to fix the minimum price at which his product could be sold at retail. Union Carbide & Carbon Corp. v. White River Distributors, 224 Ark. 558, 275 S.W. 2d 455 (1955). Such cases protect the public from being overcharged by means of an artificial floor keeping prices at high levels.

Here, by contrast, the appellants seek a license to charge any interest rate they choose, bringing us full circle back to the very purpose of the usury laws. Moreover, the financial squeeze on which the moneyed corporations base their argument must be attributed in a substantial degree to the actions of the financial institutions themselves, especially the large New York banks. We find no violation of due process of law.

The appellants’ argument under the commerce clause is to some extent a repetition of their due process argument, with the added statement that our assertedly arbitrary usury limit is a burden on interstate commerce. We are not sure, however, just what kind of commerce is being burdened. Apparently the reference is to the flow of money when it is sent from one state to be lent or invested in another state. Certainly, according to the proof, money does leave Arkansas when out-of-state investments are available at a higher rate of interest. One witness testified, for example, that his bank loses investments in certificates of deposit whenever the interest rate elsewhere is more than a fourth of one per cent above the Arkansas rate. Even so, that is apparently a natural result whenever one state, although halfway across the continent, offers a better investment opportunity than another. If that is an unconstitutional burden on interstate commerce, then such burdens occur constantly, and all interest restrictions become invalid. Every such argument is self-defeating.

Finally, the appellants’ equal protection argument hardly requires serious discussion. The 10% usury limit contains no classification of any kind, has a similar effect upon all persons similarly situated, and thus cannot deny equal protection. The appellants merely mention differing remote consequences of the law, such as the small borrower’s inability to obtain a loan from certain banks in Little Rock because those banks cannot profitably lend small amounts. Almost every constitutional provision has indirect consequences that may affect different persons in different ways, but there is no denial of equal protection unless the constitutional provision itself embodies an unreasonable classification. No inequality is to be found in the challenged section of our Constitution.

Ultimately the question in this case narrows down not to an issue of constitutional law but to one of public policy: What should be the maximum interest rate in Arkansas? The appellants’ extensive testimony can certainly be interpreted to indicate that on balance the present effect of our 10% usury ceiling is not favorable to the state’s economy as a whole. There is also testimony to the contrary. We are not called upon, however, to pass judgment upon the wisdom of our usury law. If it is to be changed it must be done by popular vote, not by judicial decision.

Affirmed.

Holt, J., not participating.


text:
    Ronnie E. MORGAN and M. S. MORGAN, His Wife v. Nina Prue FARR
    81-14
    614 S.W. 2d 233
    Supreme Court of Arkansas
    Opinion delivered April 20, 1981

      Pryor, Robinson, Taylor & Barry, for appellants.

      Walters, Davis & Cox, for appellee.
   George Rose Smith, Justice.

In 1958 the appellee, in conveying certain lands to Beavlee Morgan and his wife, reserved a non-participating royalty interest. The reservation was ambiguous in that it might be interpreted to be either perpetual or limited to royalties arising from leases executed by the particular grantees only. In 1977 the grantees conveyed the entire mineral interest in the lands to their son and daughter-in-law, the appellants, who promptly executed an oil and gas lease to Pruitt Tool & Supply Company. Pruitt, after completing two producing gas wells, filed this bill of interpleader to determine whether the appellee is entitled to share in the royalties. This appeal, which comes to us under Rule 29 (1) (p), is from a decree finding that the appellee is entitled to share.

We quote the critical language, which followed the land description in the appellee’s 1958 deed:

[Conditioned that if oil, gas and/or minerals are discovered or developed on or under the lands described in this deed through any lease or leases made or executed by the grantees, the grantor, Nina Prue Farr, shall have 1/2 of l/8th of the oil, gas and/or minerals so long as the same are produced, provided that the grantees shall have the sole and exclusive right and power to lease said lands for oil, gas and/or minerals and to collect and have any and all rentals paid for such leases.

Our task, of course, is to declare the probable intention of the parties to the deed. As is so often the case, there are rules of construction pointing in opposite directions. For the appellants, there is the rule that a deed is to be construed against the grantor. Jenkins v. Ellis, 111 Ark. 220, 163 S.W. 524 (1914). For the appellee, there are holdings that a grant of a royalty interest is to be construed as perpetual unless a contrary intent is clearly stated. Summers, Oil & Gas, § 602 (1958).

Inasmuch as we are not interpreting a clause that has a fixed legal meaning, we prefer to be guided by a basic principle in the interpretation of contracts, that that construction should be adopted which is most fair and reasonable. Love v. Couch, 181 Ark. 994, 28 S.W. 2d 1067 (1930); Singer Mfg. Co. v. Brewer, 78 Ark. 202, 93 S.W. 755 (1906). Here we think it improbable that the appellee would have taken pains to insert a mineral reservation that her grantees could nullify simply by conveying the property to a third person. That is perhaps what the grantees attempted here, because although their son testified that he paid his parents $10,000 for the mineral rights, he and his wife executed an oil and gas lease to Pruitt on the very next day after the date of the parents’ mineral deed. The controlling rule of law reaches what appears to be a just result.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Gary L. LACY v. STATE of Arkansas
    CR 80-190
    614 S.W. 2d 235
    Supreme Court of Arkansas
    Opinion delivered April 20, 1981

      C. W. Knauts and Oliver Cox, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Gary L. Lacy’s conviction for second degree murder and first degree battery must be reversed because his defense counsel was not timely furnished with a statement taken by the police from a critical witness.

Lacy killed Carl Eugene Adams and shot and wounded Vandal R. Durbin in a family fracas in Corning, Clay County, Arkansas. The killing occurred at the residence of Barbara Hall, a daughter of Adams. Lacy and his wife, Carolyn, were staying with the Halls. When Adams and two other men walked into the house, words were exchanged between Adams and Lacy. Lacy shot and killed Adams and wounded Durbin.

Lacy’s defense was self defense. He testified that Adams called him a son-of-a-bitch and reached for a pistol in his back pocket; when Adams did that he shot him.

David Hensley, who was present at the house when the shooting occurred, was subpoenaed by the State several weeks before the trial but did not appear at the trial. When the defense discovered that Hensley was not present on the first day of the trial, the defense subpoenaed him. After a two-day trial and after the jury retired to deliberate, the defense moved for a continuance because Hensley was not present and because the State had not furnished the defense with a statement taken from Hensley. The prosecutor argued that he did not get the statement until late in the day of the second day. The statement was decidedly exculpatory. In it Hensley said that the door was kicked open by three men; that Vandal slapped Barbara Hall; and that Adams loaded a gun and told the three men that if they “came back shooting” they would get “shot back.” Hensley added that “Adams reached behind him and looked like he was going after a gun as he did have a handgun in his rear pocket.”

The statement was contrary to the State’s proof. Guthrie had testified that the door was open — not kicked open; that Lacy simply shot Adams with no provocation; and that Adams had not reached for a gun. Durbin had testified that the door was simply opened and Adams did not have a weapon. Barbara Hall had testified that her father did not go for a gun.

The prosecuting attorney, in addition to arguing that he did not have Hensley’s statement, also argued that the defense had not been diligent in seeking a continuance early, locating Hensley before trial, or seeking out the statement taken by the police. Appellant’s counsel strongly took issue with this argument.

The trial court concluded that the motion came too late. We are satisfied that the court should have granted the motion. It was inexcusable for the police not to disclose Hensley’s statement. While the State opened its file to defense counsel, the file did not contain Hensley’s statement because the police had not given it to the prosecuting attorney. We held in Williams v. State, 267 Ark. 527, 593 S.W. 2d 8 (1979), that if the police have a statement, knowledge of that statement is imputed to the prosecuting attorney. Ark. R. Crim. P. 17.1 requires disclosure and if that rule is to have any meaning it must have that interpretation.

Certainly, if this statement had been furnished before the trial or early in the trial before the jury retired to deliberate, the defense would have either attempted more diligently to obtain Hensley’s presence at the trial or have been negligent in not doing so. In any event, the presence of Hensley was critical to the defense. Under these circumstances we feel it was wrong to deny the defense motion since this failure resulted in Lacy not receiving a fair trial.

The other points raised by Lacy are without merit. The introduction of a photograph of the deceased taken after the shooting was not error because we have said numerous times that photographs are admissible if they have any relevance. Stewart v. State, 233 Ark. 458, 345 S.W. 2d 472 (1961).

Reversed and remanded.

Holt, J., not participating.


text:
    Donald Odell SARGENT v. STATE of Arkansas
    CR 80-236
    614 S.W. 2d 503
    Supreme Court of Arkansas
    Opinion delivered April 20, 1981
    [Rehearing denied May 18, 1981.]

      E. Alvin Schay, State Appellate Defender, by: Linda Faulkner Boone, Deputy Defender, for appellant

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted of first degree murder and was sentenced to life in the Arkansas Department of Correction. On appeal he argues that the evidence was insufficient to corroborate the testimony of the accomplices and that the court erred in refusing to give appellant’s requested instruction on the lesser included offense of manslaughter. We find no error on either point and therefore affirm the action of the trial court.

The facts in this case reveal that on February 18, 1980, the appellant, Donald Odell Sargent, shot his father, Charlie Sargent, with a handgun and thereafter attempted to burn him by dousing him with gasoline and setting the truck on fire. After being shot several times Charlie Sargent was still alive and lived until sometime after he was left on a side road in Saline County where he died. The decedent’s body was found by a passerby on the Woodson Lateral Road on the morning of February 19, 1980. The truck door on the passenger side was open, and the body of the decedent was 15 to 20 feet down an embankment on the passenger side of the vehicle. The spare tire in the bed of the pickup truck had been burned.

The testimony of the accomplices, appellant’s younger brothers, was generally in agreement. Both agreed that Donald had encouraged them to make up a false story about what happened to their father. It was not disputed that accomplices, Roy and Cecil Sargent, helped their brother Donald load their father into the truck after he was shot. Some testimony indicated that Mrs. Sargent also assisted in getting him into the truck. The accomplices testified it was Donald who shot the decedent and it was he who attempted to later burn his father even though he was still alive. The state medical examiner testified that the cause of death was the four gunshot wounds to the body of the decedent.

Appellant’s mother wás, tried as an accomplice and convicted of second degree murder. Donald Sargent’s two younger brothers were granted immunity and testified against him. It is admitted as a matter of law that the two brothers were accomplices. Since the mother was convicted, she was also an accomplice as a matter of law.

We first consider the argument that there is insufficient corrobration of the accomplices’ testimony to sustain the conviction. Corroborating evidence need not be sufficient in and of itself to sustain a conviction. The corroborating evidence need only show the commission of the crime and have a tendency to connect the defendant with the commission of the crime. Dyas v. State, 260 Ark. 303, 539 S.W. 2d 251 (1976); Hammers v. State, 261 Ark. 585, 550 S.W. 2d 432 (1977). If there is any corroboration, the question of sufficiency is a matter for the jury. King v. State, 254 Ark. 509, 494 S.W. 2d 476 (1973).

The state medical examiner testified the decedent died as a result of four gunshot wounds. A member of the state police identified the metal fragments taken from decedent’s body as being the same caliber as the weapon the accomplices testified was used by appellant to kill his father. The weapon was later found in a melted down condition at appellant’s residence. It could not be tested to determine whether it was the actual weapon which fired the fatal bullets. However, the evidence was clearly sufficient for the jury to find it was the weapon used to murder the decedent. The body was found at the place where the accomplices said it was taken, and the truck was burned in the manner described by them.

One of appellant’s schoolmates testified that the appellant told him if his dad, the decedent, died in a certain truck that the family would get a bunch of money. He also offered to give this witness $1,000 if he would kill his father. This conversation was overheard by another student. The testimony from the accomplices, as well as the other witnesses all tended to show that appellant wanted his father to die. His thoughts are matters which can be considered in this case. We have held that “proof of ill will and threats” is sufficient to corroborate an accomplice’s testimony. Roberts v. State, 96 Ark. 58, 131 S.W. 60 (1910). See also Payne v. State, 246 Ark. 430, 438 S.W. 2d 462 (1969). To the same effect see Harris v. State, 262 Ark. 506, 558 S.W. 2d 143 (1977).

We now turn to the matter of the rejected instruction. The court gave instructions on first and second degree murder. However, the court refused to give a requested instruction on manslaughter. It is true that if there is any evidence to support the giving of the lesser included offense, it must be given. Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979). The elements of manslaughter are set out in Ark. Stat. Ann. § 41-1504 (Repl. 1977) as follows:

(1) A person commits manslaughter if:

(a) he causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse shall be determined from the viewpoint of a person in the defendant’s situation under the circumstances as he believes them to be;

It appears that the appellant relied upon the defense of accidental shooting or self-defense. From an examination of the record we do not find any proof that the appellant was under the influence of extreme emotional disturbance for which there was a reasonable excuse. There was never any claim that appellant was afraid of the decedent or that he was under any other type of emotional or mental stress. The fact that appellant was convicted of first degree murder, although the jury had also been instructed on second degree murder, indicates that an instruction on manslaughter would have been a useless thing. Ark. Stat. Ann. § 41-105 (3) (Repl. 1977) states that the court shall not be obligated to charge the jury with regard to an included offense unless there is a rational basis for a verdict acquitting the defendant and convicting him of the included offense. There simply was no evidence in the present case to support a conviction of manslaughter. It was really a case of first or second degree murder or nothing at all.

Pursuant to Ark. Stat. Ann. § 43-2725 (Repl. 1977) and Rule 11 (f) of the rules of this court, the record has been analyzed for questions raised and objections made at the trial but not briefed on appeal. We have made such examination and do not find any prejudicial error.

Affirmed.


text:
    John Edward SWINDLER v. STATE of Arkansas
    CR 70-116
    617 S.W. 2d 1
    Supreme Court of Arkansas
    Opinion delivered April 20, 1981
    [Rehearing denied May 26, 1981.]

      Lessenberry & Carpenter, by: Thomas M. Carpenter, and Charles L. Carpenter, Jr., for petitioner.

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

Petitioner, John Edward Swindler, brings this petition seeking post-conviction relief under Rule 37, A. R. Crim. P. (Repl. 1977) from his conviction for capital murder, Ark. Stat. Ann. § 41-1501 (Repl. 1977). He was sentenced to death by electrocution in that conviction, the date for execution being originally set for March 21, 1981. On March 13, 1981, petitioner sought a stay of execution, and on March 16, 1981, filed this petition for post-conviction relief under Rule 37. On March 18, 1981, we granted the stay of execution in order that we might properly consider the present petition to proceed under Rule 37. The petition has been considered and is now denied, and we dissolve the stay of execution granted in the order of March 18, 1981.

We see no need to repeat the facts of this case, as they are fully stated in two previous decisions of this court. We will briefly summarize the proceedings up to the filing of this petition. John Edward Swindler was originally tried and convicted of capital murder in the 1977 death of Officer Randy Basnett of the Fort Smith Police Department. That conviction was appealed, however, and this court was compelled to reverse the conviction on the grounds that the trial court erred in failing to grant a motion for change of venue, and in empaneling three of the jurors in that case. Swindler v. State, 264 Ark. 107, 569 S.W. 2d 120 (1978). Following that remand, the petitioner was again tried, in a different court, and again convicted and sentenced to death. On direct appeal from this second conviction, we affirmed the trial court in an opinion more thoroughly discussed hereafter. Swindler v. State, 267 Ark. 418, 592 S.W. 2d 91 (1979), cert. den., 449 U.S. 1057, 101 S. Ct. 630, 66 L. Ed. 2d 511 (1980).

Rule 37.1 provides:

A prisoner, in custody under sentence of a circuit court and whose case was not appealed to the Supreme Court, claiming a right to be released, or to have a new trial, or to have the original sentence modified on the ground:
(a) that the sentence was imposed in violation of the Constitution and laws of the United States or this state; or
(b) that the Court imposing the sentence was without jurisdiction to do so; or
(c) that the sentence was in excess of the maximum authorized by law; or
(d) that the sentence is otherwise subject to collateral attack; may file a verified motion at any time in the court which imposed the sentence, praying that the sentence be vacated or corrected.

Rule 37.2 makes clear that if the petitioner has previously brought a direct appeal of his conviction to the Supreme Court then no proceeding may be brought in the trial court without prior consent of this court, as the present petition seeks. In applying Rule 37, we have made clear as in Hulsey v. State, 268 Ark. 312, 595 S.W. 2d 934 (1980):

This postconviction remedy was not intended to provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for appeal.

Hulsey, at 313-

Even questions of constitutional dimension are not preserved beyond the direct appeal of the conviction unless they are shown to be of such a fundamental nature that the judgment is rendered void.

All these questions, and doubtless scores of others, might have been raised at the trial and thereafter on the first appeal, but they were not. Although they are argued as constitutional questions, they do not raise issues so fundamental as to render the sentence and the judgment void and open to collateral attack. Such constitutional questions are waived if not raised in accordance with the controlling rules of procedure. [Citations omitted.] In this court, contentions not argued by the appellant — in this instance on the first appeal — are wáived.

Hulsey, at 315.

See also, Collins v. State, 271 Ark. 825, 611 S.W. 2d 182 (1981) and Rogers v. State, 265 Ark. 945, 582 S.W. 2d 7 (1979).

In the petition for post-conviction relief under Rule 37, the petitioner argues: 1) that he was denied a fair trial by a fair and impartial jury; specifically a) the court erred in seating certain persons who allegedly had formed opinions in the case; b) the trial judge failed to admonish the jury concerning publicity surrounding the trial; and c) that there should have been a change of venue; and 2) that he did not receive effective counsel; specifically a) counsel failed to make certain objections at voir dire and b) failed to present certain testimony of mitigating circumstances at the sentencing phase of trial.

First, we note that in our decision on the direct appeal, Swindler v. State, 267 Ark. 418, 592 S.W. 2d 91 (1979), the allegations of the change of venue request, the voir dire examination, and the seating of the jury were all reviewed. Therefore, we will not consider the petitioner’s argument for relief based on issues arising out of those proceedings.

It (Rule 37) is not intended to permit the petitioner to again present questions which were passed upon direct appeal. Hulsey v. State, supra. Nor does it permit a petitioner to raise questions which might have been raised at the trial or on the record on direct appeal....

Neal v. State, 270 Ark. 442, 605 S.W. 2d 421 (1980), at 447. What is left, then, of the petitioner’s request is the broad allegation of ineffectiveness of counsel at the sentencing phase of the trial. The allegation of ineffectiveness of counsel at the sentencing phase of the trial is based on the alleged failure of trial counsel to call certain witnesses and to develop certain testimony as to mitigating circumstances. However, as we pointed out in Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1 (1973):

The calling of witnesses in a criminal trial is a matter which is normally within the realm of judgment of counsel. At 968.

We remain unconvinced from the bare allegations of the present petition as to what might, or conceivably could have been used in the sentencing phase, that defense counsel was ineffective. Any error of omission by counsel was not of such grave nature “as to render the judgment void and open to collateral attack.” Neal, at 447.

We do not find any merit in the petitioner’s request to proceed under Rule 37 under the requirements set for such proceedings in our decisions of Neal, Hulsey, Rogers and Collins, above. Petitioner’s petition to proceed under Rule 37 will therefore be denied. Our order of March 18, 1981, granting petitioner a stay of execution is dissolved, petitioner having exhausted all remedies recognized by this state.

Petition denied.


text:
    Curtis GIBSON v. STATE of Arkansas
    614 S.W. 2d 234
    Supreme Court of Arkansas
    Opinion delivered April 20, 1981

      E. Alvin Schay, State Appellate Defender, by: Deborah Davies Cross, Deputy Defender; and Joe Holmes, for petitioner.

      Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for respondent.
   Per Curiam.

Petitioner, Curtis Gibson, by his attorneys, James D. Gibson and Robert E. Irwin, has filed a motion for rule on the clerk. His attorneys admit that the record was tendered late due to their miscalculation of the seven-month maximum limit for filing the record in this Court. See Rule 5, Ark. R. App. P., Ark. Stat. Ann., Vol. 3A (Repl. 1979).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, 265 Ark. 964; Terry v. State, 272 Ark. 243 (1981).

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


text:
    Jerry ROLESON and Cecilia ROLESON v. STATE of Arkansas
    CR 80-214
    614 S.W. 2d 656
    Supreme Court of Arkansas
    Opinion delivered April 27, 1981

      Robert E. Young, for appellant Cecilia Roleson.

      Penix, Penix & Mixon, for appellant Jerry Roleson.

      Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellants, Jerry Roleson and Cecilia Roleson, were convicted of the first degree murder of Carl Lipe and were sentenced to life imprisonment. After a joint trial, each has appealed.

I

Jerry Roleson correctly argues that there is insufficient evidence to support his conviction since there was no evidence corroborating the testimony of Rosa Lipe who was an accomplice as a matter of law. Ark. Stat. Ann. § 43-2116 (Repl. 1977) provides:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.

Ark. Stat. Ann. § 41-303 (1) (Repl. 1977) defines an accomplice in terms of purposeful conduct calculated to promote or facilitate the commission of a crime:

(1) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(a) solicits, advises, encourages, or coerces the other person to commit it; or
(b) aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(c) having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.

Rosa Lipe was the wife of the deceased, Carl Lipe, and was the key witness for the State. Rosa testified that she began working in the Rolesons’ store in February of 1979; that two or three months before her husband’s death, the Rolesons suggested that she participate in a prostitution business to help relieve their financial difficulties, but she told them that she and Carl objected to her becoming a prostitute; whereupon, they said they would get rid of Carl since he was in the way. Subsequently, there were three attempts made by Cecilia Roleson to kill Carl beginning two weeks before his death. Rosa participated in the third attempt.

One week before Carl’s death he changed his life insurance from $5,000 to $16,500. Rosa informed the Rolesons of this change and was supposed to pay $5,000 of the insurance proceeds to the Rolesons. Although Rosa was told the day of the murder that the Rolesons were coming over and “tonight is the night,” she left her husband alone with Jerry Roleson while Rosa, Cecilia, and the children drove around town and sat in front of a furniture store. Later that night, after the children were in bed, she and Cecilia picked up Jerry on Lafe Highway and listened to his description of how he had shot Carl. Rosa accompanied Jerry and Cecilia to dispose of the gun, gloves, and tennis shoes Jerry had used during the murder. Then, after taking Jerry home to wash his clothes, Cecilia and Rosa disposed of the shells. Afterward, Rosa, as instructed by Cecilia, sat up all night pretending to wait for Carl to come home, and the next morning she reported Carl missing to the Marmaduke City Marshal, indicating she had no idea where her husband was.

Rosa Lipe’s conduct reveals that she was an accomplice as a matter of law unless, as argued by the State, her accomplice status was vitiated by the duress allegedly imposed upon her by the Rolesons’ threat to dispose of her son if she did not participate in the murder. However, Rosa Lipe’s claim of duress is destroyed by her own testimony that her 12-year-old boy was safely in Missouri with his father at the time of the murder, and that she failed to warn the father by telephone or otherwise of any danger to the child.

The affirmative defense of duress is set out in Ark. Stat. Ann. § 41-208 (1) (Repl. 1977) which provides:

(1) It is an affirmative defense to a prosecution that the actor engaged in the conduct charged to constitute an offense because he reasonably believed he was compelled to do so by the threat or use of unlawful force against his person or the person of another that a person of ordinary firmness in the actor’s situation would not have resisted.

And, as stated in Froman v. State, 232 Ark. 697, 339 S.W. 2d 601 (1960), one raising duress as an affirmative defense is not relieved from criminality as an accomplice on account of fear excited by threat unless the danger be present or immediate.

It conclusively appears from Rosa Lipe’s own testimony that her fears for the life of her minor son were not justified in terms of the immediacy of the danger. Although the question of whether a witness is an accomplice is usually a mixed question of law and fact, here, the evidence conclusively shows that the witness was an accomplice. Wilson v. State, 261 Ark. 820, 552 S.W. 2d 223 (1977); Burke v. State, 242 Ark. 368, 413 S.W. 2d 646 (1967).

For the reasons stated we find there was insufficient evidence upon which to base a conviction against Jerry Roleson and his motion for a directed verdict should have been granted. The judgment as to appellant, Jerry Roleson, is reversed and the case dismissed. Once it has been determined that a conviction was based upon insufficient evidence, the Double Jeopardy Clause of the United States Constitution precludes a second trial. Burks v. U.S., 437 U.S. 1 (1978); Greene v. Massey, 457 U.S. 19 (1978); Pollard v. State, 264 Ark. 753, 574 S.W. 2d 656 (1978).

II

The trial court did not err in denying Cecilia Roleson’s motion to dismiss for failure to try her within three terms of court as required by Rule 28.1 (b), Ark. Rules Crim. Proc., Ark. Stat. Ann., Vol. 4A (Repl. 1977). The parties agree that appellant was tried in the fourth term of the Greene County Circuit Court following her arrest; however, they disagree over the State’s contention that the third term was an excludable period under Rule 28.3(d)(i) which provides:

(d) The period of delay resulting from a continuance granted at the request of the prosecuting attorney, if:
(i) the continuance is granted because of the unavailability of evidence material to the state’s case, when due diligence has been exercised to obtain such evidence and there are reasonable grounds to believe that such evidence will be available at a later date; ...

In its order dated November 19, 1979, the trial court found certain State witnesses were unavailable for the third term of court because of previous court commitments. The court then reset the trial for the fourth term of court, thereby making the third term an excludable period under Rule 28.3(d)(i). The trial judge’s findings will not be overturned except for abuse of discretion. Randall v. State, 249 Ark. 258, 458 S.W. 2d 743 (1970); State v. Lewis, 268 Ark. 359 (1980). We find no abuse of discretion under these circumstances.

Cecilia Roleson correctly argues that the trial court erred in allowing Eric Kryton to testify, over her objection, that he received a telephone call from a man who identified himself as Jerry, the employer of Rosa Lipe. The caller wanted to know the amount of the proceeds of the insurance policy on the life of Carl Lipe, whether there was a double indemnity clause, and how the proceeds of the policy would be delivered. Mr. Kryton opined the caller on both of these occasions was Jerry Roleson, although he had never met or talked to Jerry Roleson, and did not know what his voice sounded like.

Rule 901(a)(b)(5), Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979) provides:

(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

This illustration is in line with our holding in Bailey v. State, 227 Ark. 889, 302 S.W. 2d 796 (1957) in which we said:

Generally, in order to introduce evidence of a telephone conversation or communication, otherwise unobjectionable, the identity of the person, who is claimed to have talked over the telephone, must first be satisfactorily established by the party seeking the introduction of the telephone conversation. To hold one responsible for statements and answers made over the telephone by unidentified persons would open the door for fraud and imposition.

In the case at bar there was no basis for Eric Kryton to identify Jerry Rolleson as the individual calling him. Further, there was no reliable circumstantial evidence as to his identity. Although it is possible that Eric Kryton was able to identify the caller based on hearing his voice at the trial, the record does not so reflect. Since no foundation was laid for the admission of this evidence, a reversal is required on this point.

The trial court erred in allowing a jury selection procedure which did not follow Ark. Stat. Ann. § 43-1903 (Repl. 1977) and did not conform to our holding in Clark v. State, 258 Ark. 490, 527 S.W. 2d 619 (1975). In Clark we held a jury selection procedure to be unfair where the State and the defendant were allowed to voir dire all jurors before allowing either party to exercise its peremptory challenges:

[I]t was an advantage to the State to be able to examine all of the next nine jurors before exercising its last two challenges — i.e., it could peremptorily challenge the least desirable of the nine jurors instead of rejecting them one at a time [as required by § 43-1903].

Here, the disadvantage to the appellant is clearer because only the State was permitted to voir dire all of the remaining jurors before either party was allowed to exercise peremptory challenges. Appellant, Cecilia Roleson, filed a timely motion requesting the individual voir dire of jurors as required by Ark. Stat. Ann. § 43-1903, and the trial court erroneously denied the motion.

The court erred in failing to grant a mistrial because of a reference by Rosa Lipe to having taken a polygraph test. On cross-examination of Rosa Lipe, Cecilia Roleson’s attorney questioned Rosa concerning a prior inconsistent statement that life insurance was not a motive for the murder. Rosa replied that that statement was untrue and was made before she “took the polygraph test,” thereby implying that everything she said afterward and at trial on behalf of the State was true. The defense attorney for Cecilia Roleson moved for a mistrial; the court denied the motion and told the jury to disregard the statement as having nothing to do with the lawsuit. Later on cross-examination, when questioned about the truthfulness of prior statements, Rosa Lipe made references such as “I can’t answer the questions without doing something the judge asked me not to do,” and “I can’t explain it because the judge won’t let me.” Cecilia Roleson’s counsel then renewed his mistrial motion.

This situation is aggravated by the fact that defense counsel tried to approach the bench to prevent any reference to the polygraph examination, but the court refused to hear the objection and the testimony came in immediately afterward.

Cecilia’s counsel properly cites Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978) for the rule that the results of polygraph tests are inadmissible in criminal cases. And it is recognized that any reference to a polygraph test in the absence of agreement or other justifiable circumstances would constitute error. Van Cleave v. State, 268 Ark. 514 (1980).

Other errors argued for reversal by Cecilia Roleson are not likely to arise in the same context on retrial and, therefore, are not addressed in this opinion.

For the reasons stated the judgment against Cecilia Roleson is reversed and the case remanded.

Holt, J., not participating.


text:
    Marie TAYLOR v. Sheffield Britt BOSWELL
    81-53
    614 S.W. 2d 505
    Supreme Court of Arkansas
    Opinion delivered April 27, 1981

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

      Matthews & Sanders, by: Gail O. Matthews, PA., for appellee.
   George Rose Smith, Justice.

This is a suit by Marie Taylor for personal injuries she sustained on October 20, 1977, in a minor traffic collision in the city of Bryant. At the time Mrs. Taylor was riding on the passenger side of the car with her husband. The jury could have found that their car was barely moving when the appellee, in backing out of a driveway at slow speed, struck the right front fender of the Taylors’ car. Mrs. Taylor testified that her right hip was bruised when she hit the arm rest of her car. Her doctor, on being asked if he found any bruise in that area when he examined her eight days later, answered: “Not that I recall.” Mrs. Taylor argues that the $633.10 verdict in her favor is inadequate. The appeal comes to us under Rule 29 (1) (o).

Civil Procedure Rule 59 has superseded our former statute with respect to new trials on account of the smallness of the verdict. Ark. Stat. Ann. § 27-1902 (Repl. 1962). Rule 59 merely provides that a new trial may be granted for “error in the assessment of the amount of recovery, whether too large or too small.” Our former rule was that when the verdict was for a substantial amount, as this one is, the trial judge’s denial of a new trial for inadequacy of the award would not be reversed unless there was other error or the evidence definitely established a pecuniary loss in excess of the verdict. Bittle v. Smith, 254 Ark. 123, 491 S.W. 2d 815 (1973). We need not determine to just what extent our law has been changed by Rule 59, because the appellant would not be entitled to a reversal even under the superseded statute and the former case law.

Inadequacy of the verdict being the only asserted error, Mrs. Taylor would formerly have been required to prove that her actual pecuniary injuries, apart from pain and suffering, were more than $633.10. Mrs. Taylor relies upon medical and drug bills totaling $1,194.24 to establish her pecuniary injuries, but the difficulty is that the jury was not required to attribute all those bills to the 1977 traffic mishap. Some years earlier Mrs. Taylor had been in a more serious accident. She had, before the present accident, undergone seven surgical procedures that included three back operations, two “C-sections,” a hernia repair, and a hysterectomy. After the 1977 accident she had two more unrelated operations, a hernia repair and a bladder repair. She was drawing Social Security disability before the 1977 accident, wore a back brace before and after that occurrence, and received medication in connection with her operations. Her doctor testified that as a result of her long medical history she was more vulnerable to injury than the average person and could be hurt by missing a step or sleeping in an awkward position. The jury could have found that her bruised hip was a trivial injury. Her medical bills, extending over a period of more than two and a half years after the 1977 mishap, could certainly have been attributable in some degree to other causes. The trial judge did not find the award to be against the weight of the evidence. We defer to his judgment, there being ample substantial evidence to sustain the verdict. Ferrell v. Whittington, 271 Ark. 750, 610 S.W. 2d 572 (1981).

Affirmed.

Holt, J., not participating.


author: George Rose Smith, Justice. Darrell Hickman, Justice,

text:
    Jerry H. McCROSKEY v. STATE of Arkansas
    CR 80-199
    614 S.W. 2d 660
    Supreme Court of Arkansas
    Opinion delivered April 27, 1981

      E. Alvin Schay, State Appellate Defender, by: Matthew Wood Fleming, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

McCroskey was charged with aggravated robbery, theft, and habitual criminalism with three prior felony convictions. In the second stage of a two-step trial the prosecutor and defense counsel stipulated that McCroskey had been convicted of burglary in 1972, of escape in 1973, and of robbery in 1973. The stipulation did not show that McCroskey had been represented by counsel in the earlier cases. He was not asked if he agreed to the stipulation, and there is no other evidence of the convictions in the record. The jury returned a verdict form reciting that McCroskey had “either 2 or 3” previous convictions and imposed enhanced sentences of 50 years for aggravated robbery and 15 years and a $10,000 fine for theft. The only point for reversal is that the trial court should not have accepted the stipulation without determining that McCroskey agreed to it and that he had been represented by counsel in the former cases.

We agree that the acceptance of the stipulation was error, because it did not show that McCroskey had been represented by counsel, but we are not in complete agreement with the federal cases relied upon by McCroskey. In Cox v. Hutto, 589 F. 2d 394 (8th Cir. 1979), the court held that a stipulation as to the existence of previous convictions is the “fundamental equivalent” of a plea of guilty and requires the trial judge to determine whether the accused knowingly and voluntarily agreed to the stipulation. The only case cited for that view was Wright v. Craven, 325 F. Supp. 1253 (N.D. Cal. 1971), affirmed 461 F. 2d 1109 (9th Cir. 1972). In Wright, however, the stipulation was the equivalent of a guilty plea, because under a California statute the imposition of a life sentence automatically became mandatory in view of the number and kind of previous felonies stipulated to. In Arkansas that is not the situation. Prior convictions, whether shown by proof or by stipulation, merely enhance the maximum possible sentence, with the punishment still to be determined by the jury on the basis of all the evidence in the case. Moreover, a plea of guilty goes to the essential question in the entire trial, but a previous conviction is merely a matter of evidence that can readily be proved with absolute certainty by public records.

In Cox, supra, the court remanded the case to the district court for a determination of whether at the original trial the State had in its possession proper evidence of at least the three convictions required to support the sentence. Again, we qannot agree with that test. Whether the State actually had the proof in its possession should not in our opinion be controlling, because the purpose of negotiated pleas of guilty (to which the court had likened the stipulation) and of stipulations of fact is to relieve both sides of the burden of preparing for trial. If a plea of guilty, for example, is accepted without the court’s having determined that the accused understands what he is doing, the test is not whether the prosecutor had in his possession at the trial the complete proof of guilt. Rather, the question is whether the accused voluntarily and intelligently pleaded guilty. Byler v. State, 257 Ark. 15, 513 S.W. 2d 801 (1974); Todd v. Lockhart, 490 F. 2d 626 (8th Cir. 1974). That should also be the test when counsel have stipulated to prior convictions without the accused’s approval in open court.

Upon a second appeal by Cox the court went still further and held that the error of the court’s acceptance of the stipulation without determining that the accused agreed to it could be harmless “only if evidence properly before the jury overwhelmingly established the fact of sufficient prior convictions to support the habitual criminal finding and if beyond a reasonable doubt the error did not affect the jury’s determination.” Cox v. Hutto, 619 F. 2d 731 (8th Cir. 1980). Once more we are compelled to disagree with the court’s interpretation of the law of Arkansas. Our law is this: “A stipulation is the equivalent of undisputed proof; it leaves nothingfor the jury to decide.” Brown v. Keaton, 232 Ark. 12, 334 S.W. 2d 676 (1960). Thus the question should be not what other evidence was submitted to the jury, but simply whether the accused voluntarily and intelligently agreed to the stipulation. Needless to say, in the future circuit judges and prosecutors must be careful to see that any stipulation with respect to previous convictions is voluntarily and intelligently agreed to by the accused in open court. See our opinion in Byler v. State, supra, for similar procedure when a plea of guilty is accepted.

The judgment is reversed and the cause remanded for a new trial unless the prosecutor elects first to assume the burden of proving at a hearing that McCroskey voluntarily and intelligently agreed to the stipulation and that he was in fact represented by counsel in the earlier cases. Should that burden not be met, a new trial will be necessary.

Adkisson, C.J., and Hickman, J., dissent.

Darrell Hickman, Justice,

dissenting. The majority has adopted as a principle of law that it is error for a lawyer in a criminal case to stipulate to prior convictions. In this case the majority finds that the case must be reversed to correct the error. That principle may be found in two cases that we generally refer to as Cox I and Cox II (Cox v. Hutto, 589 F. 2d 394 (1979) and Cox v. Hutto, 619 F. 2d 731 (1980)). It is my judgment that the United States Supreme Court has not yet approved this principle and we are not bound by it.

The Cox rule is wrong for two reasons. First, it requires a case to be reversed without any showing of prejudice. As applied it simply means that an attorney cannot stipulate that the defendant has prior convictions even though the defendant is present in court when the stipulation is made. The defendant must orally recite in open court that the convictions are a fact. Otherwise, the/ conviction must be reversed. The rule, as applied by the Eighth Circuit Court of Appeals, makes no allowance for the truth of the matter and does not require any showing of actual prejudice. Violation of the rule simply requires reversal.

McCroskey does not even bother to argue the question of whether he had three prior convictions nor does he bother to argue any prejudice. He simply relies upon the Cox cases. It makes no difference whether he had three prior convictions; it makes no difference if they were all proper. The United States Supreme Court has held without equivocation that prejudice must be shown before an error requires reversal. In my judgment the rule that we are upholding today runs contrary to the Harrington principle. Harrington v. California, 395 U.S. 250 (1969). Isn’t one of the purposes of appellate review to see that a fair trial has been received? Shouldn’t we view errors to see if there is any relation to that goal, not just to see if some mechanical test has been performed?

The rule in Cox is also wrong because it is one more step in the advancement of a philosophy that will ultimately destroy our advocacy system. Ours is not a perfect system but it is a sound one. We have to place some faith in the lawyers representing parties. There are innumerable safeguards for a criminal defendant: the presumption of innocence; the state’s burden; strict rules of procedure and evidence; and, free counsel both at the trial and on appeal. Do we now try the case for the parties? As long as a lawyer represents a defendant or party, he should have the power to stipulate to facts or matters that are not in dispute. The rule presumes that counsel cannot act as counsel. It means to one more degree the court must inject itself in the trial, leaving its position of neutrality.

McCroskey has not even suggested that he did not receive a fair trial or that he has been prejudiced. He would have to make those assertions before I would consider reversing the decision.

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