author: Richard B. Adkisson, Chief Justice.

text:
    Mary Lee ORSINI v. STATE of Arkansas
    CR 83-66
    665 S.W.2d 245
    Supreme Court of Arkansas
    Opinion delivered February 13, 1984
    [Rehearing denied March 19, 1984.]

      Tom Donovan, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Deputy Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Mary Lee Orsini, and two accomplices were jointly charged with capital felony murder arising from the death of Mrs. Alice McArthur. In a separate trial in Pulaski County Circuit Court, appellant was convicted and sentenced to life imprisonment without parole. The State had previously waived the death penalty. On appeal we affirm.

I.

Appellant argues that she was convicted on the uncorroborated testimony of an accomplice and that the evidence was insufficient to sustain her conviction. We disagree.

On July 2, 1982, in the late afternoon, the victim was found shot to death in her western Little Rock home. That afternoon at about 4:20 p.m., a neighbor saw a car with no license plate and with a homemade delivery sign in the window pull into the victim’s driveway. She observed a black man, carrying flowers, emerge from the car and hand the flowers to the victim. The black man was Larry McClendon, one of the accomplices. She then saw the driver of the car, a white male, get out of the car and walk toward the door. The white male was Eugene “Yankee” Hall, the other accomplice. Later she saw the two men drive away. At trial she identified McClendon’s car as the one she had seen. Shortly thereafter the victim’s husband arrived home and, being unable to locate his wife, called the police. During a search of the house, the victim’s body was found in an upstairs closet. At the victim’s feet was a flower arrangement. The crime scene investigation revealed three bullet holes; one in the hallway, one in the closet where the body was found, and one in the body of the victim.

The principal witness for the State was Eugene “Yankee” Hall. His testimony about his and appellant’s participation in the murder was corroborated by the testimony of various witnesses and physical evidence found at the scene of the bombing and the scene of the shooting. Hall testified that he had met appellant in the Spring of 1982 and had spent several nights at her house. During the following weeks the two of them conspired to kill Alice McArthur. In May of 1982 he and appellant purchased an explosive contained in a shampoo bottle, made a bomb, and placed it in the victim’s car where it exploded without seriously injuring her. Parts of a shampoo bottle containing the high explosive Torvex were recovered from the bomb scene at the McArthur home. Two witneses identified appellant as the woman who accompanied Hall when he bought the explosive. They identified appellant’s automobile as the vehicle in which the pair was traveling. Evidence introduced at trial reflected that a telephone call made to the seller of the explosive from a bait shop on the day of the purchase was billed to appellant’s telephone number. Another witness testified that appellant had told her several days before the bombing incident that a bombing would occur.

Hall stated that, after the bombing failed to kill Mrs. McArthur, he agreed with appellant to a contract murder of the victim for $25,000 to be paid by the victim’s husband, the trigger to be pulled by Larry McClendon. Appellant gave him $325 for expenses. Hall testified that appellant agreed to obtain the murder weapon. Circumstantial evidence corroborated Hall’s testimony that the murder weapon, was obtained by appellant. A ballistics expert testified that the three bullets were fired from a short barreled revolver and were a unique Federal type bullet manufactured between 1956 and 1975. Dr. Wulz, a witness for appellant, stated that he and appellant had been engaged in a continuing romantic relationship for several years and that he had owned an eleven or twelve year old .38 caliber revolver. He further testified that he discovered the pistol was missing about a week prior to the murder. The ballistics expert testified that the three bullets retrieved from the crime scene were the same type as those in a box of shells which Wulz had kept at home and had delivered to the prosecutor.

Hall further testified that appellant had devised the scheme for him and Larry McClendon to pose as a florist delivery service and that appellant had made the florist delivery sign. Hall testified that on the day of the murder he and McClendon went to Phillips Wrecker Service in North Little Rock to get the florist delivery sign out of a car that he had been driving. An employee of the wrecker service corroborated this fact. Hall testified that on the day of the murder he purchased a flower arrangement and removed the license plate from McClendon’s car before putting the floral delivery sign in the car window. An employee of Leroy’s Florist at Cantrell and Kavanaugh in Little Rock testified that she prepared the flower arrangement found at the murder scene. Before Hall picked up the flower arrangement, he telephoned appellant, and appellant telephoned the victim’s residence to make sure she was home. Evidence was introduced to corroborate Hall’s testimony that appellant telephoned the victim the afternoon of the murder. The record reflects that a tracing device, or trap, along with a microcassette tape recorder, had been placed on the McArthur telephone. A transcription of the telephone tape recovered from the home the day of the murder established that a telephone call made to the victim at 1:59 p.m. had been made from appellant’s residence. The caller asked for “Mama.” Two witnesses identified the voice of the caller as the voice of appellant. This corroborated Hall’s testimony that appellant telephoned the victim the afternoon of the murder to determine if she was home. Soon after the telephone call to appellant’s home, appellant drove by Hall and McClendon on her way to a pre-arranged appointment with her attorney, Bill McArthur, the victim’s husband. Two witnesses from the McArthur law firm testified appellant had made an appointment for 4:00 that afternoon. As she passed Hall and McClendon, she got a go ahead sign from Hall. After the murder, Hall threw the gun and florist sign in the Arkansas River. He then telephoned appellant who told him she had been unable to get the payoff money that day.

Within a few days after the murder, appellant told Larry Burge, an acquaintance, that she had received an anonymous telephone tip that Larry McClendon had killed Alice McArthur. At appellant’s request, Burge relayed this information anonymously to the sheriff, who verified receiving it. The next day appellant again contacted Burge, telling him she had received more information about the murder and had made notes on this information. The notes were written down on yellow pieces of paper. At appellant’s request Burge agreed to pose as an anonymous caller and relate to her the information she had written down. Burge made the call, naming McClendon as the man who fired the gun and stating that McClendon had been seen with a white man earlier in the day. Appellant tape recorded this message and, on the pretext of having received the call from an anonymous source, took the tape to the sheriff. At trial Burge identified the yellow pages as the notes written in appellant’s handwriting and given to him by her for the purpose of making his call. These three yellow pages were removed from appellant’s person the night she was arrested. Since the staged anonymous call, based on notes prepared by appellant, was information only a person involved in the murder would know, this evidence corroborated Hall’s testimony that appellant conspired with him to commit murder.

The testimony of an accomplice must be corroborated by other evidence tending to connect the defendant with the commission of the crime. Ark. Stat. Ann. § 43-2116 (Repl. 1977). Henderson v. State, 279 Ark. 435, 440-441, 652 S.W.2d 16 (1983). It is unnecessary that the evidence be sufficient to sustain the conviction as long as, after elimination of the accomplice’s testimony, the evidence tends to connect the accused to the crime. Walker v. State, 277 Ark. 137, 639 S.W.2d 742 (1982); King v. State, 254 Ark. 509, 494 S.W.2d 476 (1973). Where the testimony of an accomplice is corroborated as to particular material facts, the jury can infer the accomplice spoke the truth as to all. Olles & Anderson v. State, 260 Ark. 571, 576, 542 S.W.2d 755 (1976). On appeal we view the evidence in the light most favorable to the non-moving party. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). We conclude the evidence was sufficient to corroborate the testimony of Hall and to support appellant’s conviction and uphold the trial court’s denial of appellant’s motion for directed verdict. See Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982).

II.

Appellant argues for reversal that the trial court erred in: (A) rulings related to the selection of the jury, (B) permitting piecemeal pretrial discovery, (C) failure to disqualify the prosecuting attorney, (D) denial of a continuance of the trial, (E) failure to set bail, and (F) denial of a motion for a new trial.

A.

Appellant argues that she was denied a fair trial because her jury was prejudiced by extensive pretrial publicity, and the trial court, therefore, improperly denied her motions related to jury selection: a motion to dismiss and another for change of venue.

Generally, whether to grant a change of venue lies within the trial court’s discretion. It must determine if the defendant can receive a fair trial by an impartial jury in the county in which he or she is being tried. Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982); Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979). The voir dire of a jury provides an adequate safeguard against pretrial publicity. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). We uphold the trial court’s denial of appellant’s motions to dismiss and for change of venue.

The record reflects that each potential juror was examined individually in chambers. The jurors ultimately selected as “good” by both the State and appellant stated that they could give appellant a fair and impartial trial based on the law and the evidence. The record further reflects that appellant used only eleven of the twelve peremptory challenges allotted to her. Appellant cannot show that she was prejudiced in the jury selection process since she failed to exhaust her peremptory challenges. Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981); Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). The twelve jurors seated were accepted without objection and without a motion for change of venue or dismissal during the jury selection process.

Appellant contends the trial court erred in permitting piecemeal discovery which was not property supervised. However, this issue is not preserved for review on appeal because the appellant made no objection during trial claiming lack of access to the State’s evidence, surprise, or prejudice. This issue was specifically addressed in Brenneman & King v. State, 264 Ark. 460, 471, 573 S.W.2d 47 (1978) where appellants contended the state failed to comply with the Prosecutor’s obligations concerning discovery pursuant to ARCr.P. 17.1 and for that reason certain testimony should have been excluded. In Brenneman & King we held that any right appellants might have had was waived by their failure to make a timely objection at trial.

In any event the discovery was properly supervised, and the State provided discovery as soon as was practicable. The record reflects that on July 22, 1982, the trial court ordered discovery be pursued. On August 5 appellant acknowledged receipt of a volume of information but requested more. On August 31 appellant orally renewed a motion for completion of discovery, and the court ordered the material to be delivered by September 3. On September 3 the Prosecutor delivered to appellant all the information in his immediate possession and control. This material included interviews; statements of witnesses; statements of appellant; statement of Yankee Hall; search, line-up and arrest documents relating to McClendon and Hall; reports made pursuant to the investigation regarding evidence at the crime scene and other evidence seized; transcripts of telephone conversations and telephone records; investigative reports concerning appellant’s arrest; and reports from the Crime Lab and Medical Examiner. By September 8 the State had provided almost its entire file, including information not discoverable. On that date the trial court ordered all law enforcement agencies to provide their files to the Prosecutor because the Pulaski County Sheriff had not delivered its file to the Prosecutor. The State then produced further information on September 13, 14, 17, 21, and 22. This material included pages from the Sheriff’s file; statement by McArthur; statements of other witnesses; appellant’s diary; crime lab reports; names of additional witnesses; statements of persons interviewed; the phone records of Bill McArthur; statement of Hall to the Alcohol, Tobacco, and Firearm Bureau; McArthur’s financial records; and drawings made by Hall concerning the bombing incident. Although discovery was not completed as quickly as it could have been, there was a volume of information that had to be produced, and under the facts of this case we cannot say that the trial court erred in its ruling regarding the discovery process. In view of the circumstances, it is clear that the court ordered discovery as soon as appellant asked for it and that the State complied with those orders. This becomes even more evident when we consider that the appellant did not respond to the State’s discovery request of September 3 until September 27.

C.

Appellant asserts the trial court erred in refusing to disqualify the prosecuting attorney. Essentially, her argument is that she was denied a fair trial because of pretrial publicity supposedly emanating from the prosecutor’s office and because of delay in the discovery process. Appellant complained that the Prosecutor released Hall’s statement to the press even before it was furnished to her. However, hearings concerning release of information to the news media failed to establilsh the prosecuting attorney’s office as the source of that release. The trial court appropriately entered “gag” orders August 2 and again September 8 to ensure appellant a fair trial. Cf., Younger v. Smith, 30 Cal. App.3d 138, 106 Cal. Rptr. 225 (1973). The trial court properly supervised discovery, and no reversible error resulted from the discovery process. Further, as stated above, none of the jurors selected indicated prejudice because of pretrial publicity, and, in fact, appellant used only eleven of her twelve peremptory challenges. See Singleton v. State, supra.

D.

Appellant asserts that a continuance should have been granted because of pretrial publicity, failure of the prosecution to cooperate in discovery, conflicts in defense counsel schedules, and lack of time to locate witnesses and prepare a defense. The trial court has the discretion to determine when a continuance is necessary. The denial of a continuance will not be reversed unless there was a clear abuse of discretion amounting to a denial of justice. Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983). First, we again note that appellant did not demonstrate that any juror was prejudiced by pretrial publicity; neither was any prejudice shown from the discovery process. Although appellant cites an inordinate rush to trial that prevented her from preparing her testimony so that she could take the stand in her own behalf, she did not specify at the hearing on the motion what her testimony would have been had she had more time to prepare. She also fails to say what witnesses and evidence could have been developed with more time. The burden is on appellant to establish prejudice and an abuse of discretion in denying the continuance. Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666(1983); Russell & Davis v. State, 262s Ark. 447, 559 S.W.2d 7 (1977). Appellant has not met that burden.

E.

Appellant contends that the trial court erred in refusing to set bail. However, at the bond hearing the State produced sufficient facts to establish probable cause to file capital murder charges against appellant and properly refused to set bond. ARCr.P 9.2. In any event, failure to set bond would not vitiate an otherwise valid conviction. Cf., Harris v. State, 259 Ark. 187, 532 S.W.2d 423 (1976).

F.

Appellant correctly contends that the trial court erred in ruling that appellant’s motion for a new trial was not timely filed. However, the trial court’s error was not prejudicial because the appellant was permitted to proffer her evidence in support of her motion for new trial. Based on proffered testimony, we cannot say that the trial court abused its discretion in denying the motion. The evidence was either cumulative or an attack on the credibility of the trial witnesses. Such evidence is not grounds for a new trial. Ark. Stat. Ann. § 43-2203 (Rep. 1977); Williams v. State, 252 Ark. 1289, 482 S.W.2d 810 (1972).

Appellant further contends as ground for a new trial that because the Sheriff failed to submit all discoverable material to the Prosecutor, the State thereby wrongfully withheld exculpatory evidence which might have negated her guilt. Appellant has designated no specific material as a basis for this argument. The record reflects that most of the material requested was provided promptly although none of the material was exculpatory. The material furnished was. apparently satisfactory since appellant made no objection at trial based on the State’s failure to disclose discoverable material. Brenneman v. State, supra. Accordingly, there is no merit to this argument.

III.

Appellant next argues that the trial court erred in ruling on certain evidentiary issues regarding: (A) interpretation of the capital murder statute, (B) the admission of certain evidence offered by the State, and (C) the refusal to admit evidence offered by appellant. The trial court correctly ruled on each of these issues.

A.

The trial court properly rejected appellant’s contention that the capital murder statute requires proof of an actual exchange of something for value. Ark. Stat. Ann. § 41-1501 (l)(g) provides “(1) A person commits capital murder if . . . (g) he enters into an agreement that he cause the death of another person in return for anything of value, and the person hired, pursuant to the agreement, causes the death of the person.” The statute does not require that an actual exchange of something for value take place in order to establish the offense. Proof is only necessary that there be an agreement to kill in exchange for something of value. Moreover, had appellant believed the elements of capital murder were improperly set forth, she should have objected to the Court’s instructions to the jury and proffered a jury instruction of her own. Her failure to do so precludes a consideration of this issue on appeal. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982); ARCiv.P Rule 51.

Appellant also argues that the agreement for the contract murder was not corroborated by independent evidence. 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.” The statute only requires independent evidence connecting appellant with the crime; it does not require corroboration of each separate element of the crime.

B.

Appellant contends evidence of the bombing incident was improperly admitted because evidence of other crimes, wrongs, or acts may not be admitted to prove the character of a person and to show an action was committed in conformity with that character. Ark. Unif. R. Evid. 404(b). Appellant asserts admission of evidence of the bombing is ground for a mistrial. However, evidence of prior criminal acts perpetrated by a defendant is admissible if offered to prove motive, opportunity, intent, preparation, plan, or knowledge on the part of the defendant. Ark. Unif. R. Evid. 404(b). Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982). The record reflects sufficient evidence from which the jury could have found that appellant and Hall planted an explosive in the victim’s car which, when detonated, failed to kill her. This incident was probative of their intent to commit murder. The bombing incident, which occurred five weeks before the murder, was not so remote in time that the jury was prevented from connecting the incident to the murder. See Smith v. State, 266 Ark. 861, 587 S.W.2d 50 (1979); Caton & Headley v. State, 252 Ark. 420, 479 S.W.2d 537 (1972). Appellant further contends the trial court erred in its failure to give a limiting construction on the bombing; but since no instruction was proffered, the issue is not preserved for review on appeal. ARCiv.P Rule 51.

Over appellant’s objection the trial court admitted into evidence photographs of the crime scene, the cassette tape removed from the McArthur telephone, and the shampoo bottle along with other physical evidence related to the car bombing. Since each of the exhibits tended to corroborate Hall’s testimony, there was no error.

Appellant also seeks to raise the issue of whether the “Burge notes,” the yellow pieces of paper seized from her at arrest, were admissible because they were not furnished on discovery, but no objection was lodged, and the issue will not be considered on appeal. Brenneman v. State, supra; Kitchens v. State, 271 Ark. 1, 607 S.W.2d 345 (1980).

C.

Hall testified that appellant told him there were burn marks left in her home as a result of his handling of the materials used to make the car bomb. The court denied appellant’s request that the jury be permitted to visit the house to examine it for burns. A request to view a place pertinent to a material fact is a matter within the trial court’s discretion. Ark. Stat. Ann. § 43-2119 (Repl. 1977). That exercise of discretion is not a ground for reversal absent a showing of abuse of discretion. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982). In light of direct testimony by two defense witnesses that no burn marks were in the house, appellant has failed to demonstrate any prejudice resulting from the court’s decision.

Appellant argues that the trial court erred in refusing to admit the proffered testimony of two witnesses at the hearing on her motion for a new trial. The court ruled that the testimony would be merely cumulative or related to the credibility of trial witnesses. Neither cumulative evidence nor evidence related to credibility can be the basis for a new trial. Williams v. State, supra. Appellant also proffered testimony of a third witness concerning the time allowed for filing a timely motion for a new trial. This testimony called for a conclusion of law and was properly excluded by the trial court.

IV.

Appellant argues that a mistrial should have been granted because of errors committed in (A) the closing argument, (B) the jury deliberation and (C) other points at trial. We affirm the trial court’s denial of the motions for mistrial.

A.

The trial court sustained several of the State’s objections during the appellant’s closing argument. Appellant now raises each of them as grounds for reversal but fails to show that the trial court abused its discretion in controlling the argument of counsel. On appeal the trial court’s rulings on questions concerning the argument of counsel will not be overturned without a showing of a “manifest gross abuse of that discretion.” Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). Mistrial is a drastic remedy. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Unless the appellant is clearly prejudiced by improper objections, there is no basis for granting a mistrial. The trial court has the task of supervising the arguments of counsel and impressing on the jury the correct role of counsel in argument. Harrison v. State, 276 Ark. 469, 637 S.W.2d 549 (1982).

At the close of her argument, appellant objected, stating that the trial court’s frequent admonitions to the jury were prejudicial and that some of the court’s remarks amounted to a comment on the evidence. The court’s admonitions were not improper. After a review of the record, we are persuaded that the trial court did not comment on the evidence. Appellant cites such comments as “There was an instruction on that,” “they know what the evidence is,” and “remarks about what lawyers can do and the privilege of lawyers with their clients was not any part of the evidence in this case.” None of these remarks is outside the bounds for a trial judge controlling the conduct of a trial. Neither do we.find an abuse of the trial court’s discretion in denying appellant’s request for a mistrial based on her contention that she had been prejudiced by the State’s repeated objections during her closing argument.

In closing argument appellant’s counsel mentioned that the State’s theory of the case included the appellant’s plan to write a book about the McArthur murder. When the State then referred to the book in its closing, appellant objected on the ground that this testimony put her character in issue and moved for a mistrial. Since several witnesses testified that appellant had planned such a book and the defense also mentioned it, it was not improper for the State to refer to it. See Allen v. State, 281 Ark. 1, 660 S.W.2d 922 (1983).

B.

After the jury had been deliberating for several hours, the appellant requested a mistrial, stating that the lengthy deliberation was indicative of reasonable doubt. The reasonableness of the length of the deliberation period depends on many factors, including the length of the trial and the nature and complexity of the evidence. Beard, Morrison & Cook v. State, 277 Ark. 35, 639 S.W.2d 52 (1982). The jury here had not expressed its inability to reach a verdict. The trial court did not abuse its discretion in denying appellant’s motion.

The appellant also asked for a mistrial during deliberation because the jury took into the juryroom a tape of several telephone conversations recorded at the McArthur home when only two of the conversations were introduced into evidence. The objection was not entered until the jury had had access to the tapes for more than five hours. The objection did not specify what other conversations were on the tape or that they were in any way prejudicial to the appellant. The absence of a contemporaneous obj ection and a showing of prejudice renders any error harmless. We do not reverse for non-prejudicial error. Nolen v. State, 278 Ark. 17, 643 S.W.2d 257 (1982); Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977).

C.

At the close of the State’s opening argument in which the State discussed the bombing, appellant moved for a mistrial based on a motion in limine previously denied. Since evidence of the bombing was properly admitted, no error resulted and no ground for a mistrial existed. Appellant further contends that a question by the State violated a motion in limine granted earlier regarding a phone call to a defense witness. The State withdrew the question, and the trial court admonished the jury to disregard the question. We cannot say the trial court abused its discretion in its refusal to grant a mistrial since appellant failed to demonstrate in what way she was prejudiced. Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983).

We have examined all other objections made during the trial pursuant to Rule 11(f) Rules of the Supreme Court, Ark. Stat. Ann., Vol. 3A (Repl. 1977) and find no error. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

Affirmed.


source: Caselaw Access Project

author: Darrel Hickman, Justice.

license: Public Domain

text:
    Felix THOMPSON and DARDANELLE SCHOOL DISTRICT #15 v. Larry SANFORD
    83-234
    663 S.W.2d 932
    Supreme Court of Arkansas
    Opinion delivered February 13, 1984

      G. Ross Smith, for appellant, Dardanelle School District #15.

      Lienhart if Hart, by: /. Fred Hart, Jr., for appellant, Felix Thompson.

      Bullock if McCormick, for appellee.

      Steve Clark, Atty. Gen., by: R. B. Friedlander, Asst. Atty. Gen., and Bullock if McCormick, for amicus curiae.
   Darrel Hickman, Justice.

This is a case involving the

immunity of school districts from tort liability and their corresponding duty to carry liability insurance on their motor vehicles. The questions raised are not new. The act in question, Act 165 of 1969, and our decision in Sturdivant v. City of Farmington, 255 Ark. 415, 500 S.W.2d 769 (1973), settle the matter except in certain minor respects. We affirm the judgment of the trial court which was based on Sturdivant. All parties appealed: Sanford, the plaintiff below, who was injured when struck by a tractor owned by the Dardanelle School District #15; Felix Thompson, who struck Sanford and was an employee of the school district; the school district; and the attorney general, who joins in this suit to argue that we should overrule Sturdivant. The trial court was right in every regard.

The facts are easily stated though not important to our decision. The jury found that Felix Thompson, while employed by Dardanelle School District #15, negligently caused an accident on a public road by striking a motorcycle driven by Larry Sanford. The school district did not have liability insurance as required by Act 165 of 1969. Sanford sued both Thompson and the school district. The jury awarded Sanford a $35,000 judgment against both. After-wards, the trial court entered an order limiting the liability of the school district to $10,000 for the personal injury and no more than $5,000 for the property damage, pursuant to our holding in Sturdivant.

We held in Sturdivant that when a political subdivision, in this case a school district, mentioned in Act 165 fails to carry motor vehicle liability insurance, it becomes a self-insurer, if found liable, in an amount not to exceed the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act. At the time of the judgment, the minimum amounts were $10,000 for bodily injury to one person and $5,000 for destruction of property. Ark. Stat. Ann. § 75-1466 (Repl. 1979). This statute was amended in 1981, raising the limits to $25,000 and $15,000 respectively. Ark. Stat. Ann. § 75-1466 (Supp. 1983).

The various positions of the parties are as follows: Larry Sanford argues that Act 165 is unconstitutional because it violates Ark. Const, art. 2, § 13, which guarantees all citizens a means of redress from wrongs, and § 29 which declares all laws contrary to the constitution to be void. We answered that exact question in Hardin v. City of DeValls Bluff, 256 Ark. 480, 508 S.W.2d 559 (1974), when we said the drafters of the constitution “never had in mind that one, without legislative authority, could receive redress for asserted wrongs against counties and cities acting in their governmental capacities.” Sanford makes other general constitutional arguments against Act 165, without citing authority. He argues that it violates the due process and equal protection clauses. Felix Thompson, the tractor driver, also argues Act 165 is unconstitutional because it sets limits on the liability to be imposed on political subdivisions without a rational basis. He also cites no authority but refers to the Ark. Const, art. 2, § 13 and the due process and equal protection clauses of the United States Constitution. Since statutes granting political subdivisions immunity or denying them immunity are legal, then statutes which limit that liability are legal for the same reasons — to make these government entities bear some responsibility for wrongs to individuals harmed by their negligence, but also to prevent these same entities from exposure to high judgments which would destroy them. 57 Am. Jur. 2d, Municipal, Etc., Tort Liability, §§ 52, 56(1971). We need not address the due process and equal protection arguments because they are supported neither by authority nor persuasive reasoning. See Hulva v. Arkansas State Board of Dental Examiners, 277 Ark. 397, 642 S.W.2d 296 (1982).

Thompson also argues it was wrong to allow the school district to be a party because its presence prejudiced the jury; i.e., the jury would perceive the school district could pay a large judgment, whereas Thompson actually would, and ultimately did, bear a greater share of the liability because the district’s liability is limited. This argument, based on neither facts nor law, ignores the premise that Thompson is being held accountable only for his own negligence. He had the same opportunity as any other defendant to present his defense to an impartial jury. Thompson’s argument, unsupported by citation of authority, does not meet his burden of showing error. The Corning Bank v. Rice, 278 Ark. 295, 645 S.W.2d 675 (1983).

The school district, which admittedly did not carry liability insurance as explicitly required by Act 165 and knowing it would be held accountable as a self-insurer by our decision in Sturdivant which was decided ten years ago, wants us to overrule Sturdivant. Essentially, the district’s argument is the same as expressed in the dissent in Sturdivant; that is, that Act 165 grants absolute immunity, and the statutory requirement for liability insurance only grants a cause of action against the insurer, not the school district.

We patiently explained in Sturdivant why the provision in Act 165 requiring insurance had to be enforced by holding the city liable as a self-insurer. We said:

If we hold that the city of Farmington is entitled to the immunity afforded it under Act 165 and at the same time hold that it is not mandatory that it comply with the liability insurance provision thereof, then we have destroyed the second purpose of the act above enumerated. The mandatory provision for carrying liability insurance is so strongly and clearly stated that we cannot agree to such emasculation.

The school district argues that we were legislating when we made those districts self-insurers when they did not carry insurance, and therefore Sturdivant is unconstitutional as a violation of the separation of powers doctrine. Ark. Const, art. 4, § 2. This is a time-worn argument brought from time to time regarding judicial decisions and has no credibility in this case. “No statutory provisions are intended by the legislature to be disregarded; but where the consequences of not obeying them in every particular are not prescribed, the courts must judicially determine them.” 2A C. Sands, Sutherland Statutory Construction § 57.01 (1973).

Questions pertaining to governmental immunity have been before us many times. In 1957, in the case of Kirksey v. City of Fort Smith, 227 Ark. 630, 300 S.W.2d 257 (1957), we continued to follow our precedents upholding governmental immunity but expressed the hope the legislature would make it mandatory that certain government entities purchase liability insurance to correct an obviously unjust part of our legal system — a wrong with no remedy.

The legislature failed to do so, and insurance remained an option. Then, in Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1958), over ten years later, we struck down the doctrine of municipal immunity. Within one year of the Parish case, the legislature addressed the problem and enacted Act 165, which had two purposes: to declare as public policy that the state and its political subdivisions shall not be liable for tort and to require all political subdivisions to carry liability insurance on their motor vehicles. One of the first substantial tests of the legislation came in 1973 when the city of Farmington was sued by Sturdivant and it was determined that the city carried no liability insurance. Shortly thereafter, the constitututionality of the act was challenged in Hardin v. City of DeValls Bluff, supra. So virtually all the questions raised have been addressed and answered before. There is a strong presumption of the validity of prior decisions. Walt Bennett Ford, Inc. v. Pulaski County Special School District, 274 Ark. 208, 624 S.W.2d 426 (1981); Roane v. Hinton, 6 Ark. (1 Eng.) 525 (1846). Although we do have the power to overrule a previous decision, Gregg v. Road Improvement District No. 2, 169 Ark. 671, 277 S.W. 515 (1925), it is necessary, as a matter of public policy, to uphold prior decisions unless a great injury or injustice would result. Walt Bennett Ford, Inc. v. Pulaski County Special School District, supra; Rhea v. State, 104 Ark. 162, 147 S.W. 463 (1912). Furthermore, a court’s construction of a statute becomes a part of that law. Merchants’ Transfer & Warehouse Co. v. Gates, 180 Ark. 96, 21 S.W.2d 406 (1929). None of the parties have given us any convincing authority or reasons why Sturdivant should not be followed.

Felix Thompson argues that the trial court erred when it refused to instruct the jury that liability against the school district was limited to $10,000 and $5,000. One state, Oregon, has taken this approach. See Vendrell v. School District, 226 Or. 263, 360 P.2d 282 (1961). We have generally declined to put such information before juries feeling it might affect the outcome of the jury’s deliberation to the detriment of one of the parties. See Hively v. Edwards, 278 Ark. 435, 646 S.W.2d 688 (1983). We think the trial court was right to wait until the jury had determined liability and damages before applying the law of Sturdivant and Act 165. It is the least harmful solution available.

The school district and Felix Thompson argue that the case should have been submitted to the júry on interrogatories rather than a general verdict so that fault could be proportioned more specifically among the parties. The school district admits that this is a matter within the discretion of the trial court. Hough v. Continental Leasing Corp., 275 Ark. 340, 630 S.W.2d 19 (1982). The trial court properly instructed the jury in accordance with AMI 2102, and we find no abuse of discretion.

Affirmed.


author: John I. Purtle, Justice.

text:
    SPRINGDALE FARMS, INC. v. McILROY BANK & TRUST
    83-239
    663 S.W.2d 936
    Supreme Court of Arkanss
    Opinion delivered February 13, 1984

      Cypert & Roy, for appellant.

      Pettus, Johnson & Gibson, by:1 Phyllis Hall Johnson, for appellee.
   John I. Purtle, Justice.

The chancellor upheld the Arkansas prejudgment attachment law in a dispute between creditors, one with a prejudgment attachment and the other with a subsequent judgment garnishment. On direct appeal it is argued that the Arkansas prejudgment statutes [Ark. Stat. Ann. § 31-101 etseq. (Repl. 1962)] are unconstitutional. On cross appeal the argument is that appellant in the present case did not have standing to challenge the constitutionality of the prejudgment statutes. We hold that the appellant had standing to challenge the law and that the prejudgment statutes are valid.

Springdale Farms, Inc. (appellant) filed suit on account against Buford B. Wiley, Jr. and C-O-Y-O-T-E Properties, Inc. in the Washington County Circuit Court on September 2, 1981. Eleven months later, August 2, 1982, McIlroy Bank and Trust (appellee) filed suit in the Washington County Chancery Court against the same parties seeking foreclosure on certain items of property and judgment on a promissory note. On the same day McIlroy caused the circuit court clerk to issue a prejudgment writ of specific attachment against Mexican Original Products, Inc. McIlroy filed the affidavit and bond required by the attachment statutes and obtained results by attaching two checks owed by Mexican Original to Wiley. The bank obtained several additional writs of attachment but never filed additional bond or affidavits with the clerk.

Appellant obtained judgment on its complaint in circuit court October 1, 1982, and two weeks later caused a writ of garnishment to issue upon the judgment against the sheriff and Mexican Original. The sheriff answered that he had the checks obtained from Mexican Original on the bank’s attachment. Appellee moved to make appellant a respondent in the chancery case. Appellant argued that the circuit court had subject matter jurisdiction but it nevertheless alleged the right to possession of the checks which were interpleaded into the court by the sheriff. On January 18, 1983, the bank obtained judgment against Wiley on service had pursuant to the long arm statute. On January 20, 1983, the chancellor upheld the prejudgment attachment and awarded the checks to appellee.

We first consider the cross appeal argument that appellant did not have standing to assert the constitutional claim of Wiley. We find that appellant had standing in its own right to challenge the constitutionality of the prejudgment attachments. Arkansas Stat. Ann. § 31-157 (Repl. 1962) authorizes intervention by “any person . . . disputing the validity of the attachment, or stating a claim to the property or an interest in, or a lien on it. . .” In the early case of Rice v. Dorrian, 57 Ark. 541, 22 S.W. 213 (1893) this court held:

So we think it clear that a junior attacher can, for the purpose of protecting his rights in the property attached, dispute the validity of a prior attachment, and establish the right of his own to precedence, by showing that the first exists without authority or is not allowed by law.

Appellant had standing to attempt to show appellee’s attachment was “not allowed by law” and was therefore without authority. The cross appeal must be denied.

We now consider the question of whether the Arkansas statutes on prejudgment attachment are constitutional. In considering this question it becomes necessary to examine four United States Supreme Court decisions. Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337 (1969); Fuentes v. Shevin, 407 U.S. 67 (1972); Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974); and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975). In Sniadach the Court held the Wisconsin prejudgment wage garnishment statutes to be unconstitutional because they did not provide for notice and prior hearing. In Fuentes, the wage garnishment holding of Sniadach was expanded to include prejudgment replevin. The Florida and Pennsylvania replevin statutes were held unconstitutional for lack of due process. These statutes were invalidated because they afforded no opportunity for a hearing or prior notice. Both statutes allowed the debtor to retake the goods by posting bonds.

The next case considered by the United States Supreme Court was Mitchell v. W. T. Grant Co., supra. Here the Louisiana sequestration statute was upheld. Although not overruling Sniadach and Fuentes, the Court held that prejudgment attachments are not always unconstitutional. The Louisiana statute passed the constitutional test because it had adequate “safeguards.” Mitchell purchased goods from Grant who retained a vendor’s lien to secure the unpaid purchase price. Also, the Louisiana statute would not allow attachment based upon “conclusory allegations.” The statute required the petitioner to state “specific facts” in the affidavit for sequestration. These facts were presented to a judge after a bond was filed. The debtor was entitled to an immediate hearing on repossession and the burden was upon the creditor at the hearing to prove the grounds for attaching the property. The debtor could regain possession without a hearing by posting bond. He was also entitled to regain the property plus damages and attorney fees if the writ were ultimately dissolved.

The last major case we must examine is North Georgia Finishing v. Di-Chem, Inc., supra. In that case the Georgia prejudgment garnishment statute was held to be violative of the due process clause because it did not have the “safeguards” contained in Mitchell.

Out of these four cases a rather loose formula emerges. There are six general safeguards necessary for a valid prejudgment seizure. They are: 1) the affidavit for thewritof attachment must allege specific facts which justify attachment; 2) the petitioner must post a bond guaranteeing the defendant damages if the writ is dissolved; 3) the respondent or defendant must be allowed to regain possession by posting bond; 4) requisite proof of the need for a writ must be made before a judge; 5) an immediate hearing must .be allowed, and at the hearing, the burden of proof is with the petitioner to justify the attachment; and 6) if the writ is dissolved, damages and attorney fees must be awarded to the debtor.

If our attachment statute is to survive it must contain the above safeguards. Attachment and garnishment statutes are contained in Title 31 of the Arkansas statutes. Section 31-101 gives the grounds for attachment before judgment. There are nine grounds listed, one of which states: “6. Is about to remove, or has removed, his property, or a material part thereof, out of this State, not leaving enough therein to satisfy the plaintiff’s claim, or the claim of said defendant’s creditors ...” The affidavit of appellee in this case met the first requirement because it alleged everything in subsection 6 above and alleged other specific facts as well.

The second step in the formula requires the plaintiff or petitioner to post a bond guaranteeing the debtor’s damages in the event the attachment is dissolved. That was done by the bank in the present case.

Arkansas’s statutes provide that the debtor, by posting bond, may retain possession (§ 31-124) or may regain possession (§ 31-136), thereby meeting requirement number three.

The weakest point of the Arkansas statutory scheme is that it does not exactly meet the fourth step in the formula because the writ is not granted by a j udge. This prong of the test is really a balancing of the interests involved, and an attempt to provide adequate safeguards. Another consideration is whether there is a greater than usual risk to the creditor and whether the creditor’s interest has been heightened. In other words the question is whether the facts presented cause the creditor’s rights to be unusually threatened. The very specific and detailed factual requirements set out in Ark. Stat. Ann. § 31-101 seem to offer adequate safeguards to the debtor that his property will not be taken without ample justification. By the same token, an affidavit conforming to these statutory demands indicates the creditor’s rights have not only been heightened, but also that his interest is in danger of being destroyed. In the present case the debtor had left the state and did not object to the attachment. Even so, it is our opinion that the issuance of the writ of attachment by the circuit clerk meets the “safeguards” test and is not in violation of due process. Because our statute requires a recital of specific facts by one with personal knowledge, the Clerk’s role rises above that of a mere court functionary.

Fifth, there must be a hearing immediately after seizure on the matter of possession with the burden of proof resting on the creditor. Under § 31-124 the debtor may retain possession without a hearing by posting the required bond. Section 31-128 allows the debtor, upon reasonable notice, at any time to move to discharge the attachment. Also, § 31-149 states the debtor may “at any time before the attachment is sustained” move to discharge the attachment.

The sixth requirement is that if the writ is dissolved there must be damages and attorney fees awarded to the debtor. This requirement is clearly met by § 31-152 which requires the court or jury to assess damages for the defendant if the attachment is not sustained.

Professor Nickles [Assistant Professor of Law, University of Arkanss (Fayetteville)] has written a lengthy and exhaustive study, Creditors’ Provisional Remedies and Debtors’ Due Process Rights: A ttachment and Garnishment in Arkansas, 31 Ark. L. Rev. 607 (1978), which is enlightening on the matter of prejudgment attachment in Arkansas. He reached a conclusion not inconsistent with this opinion.

We hold that prejudgment attachment by a creditor pursuant to the statutes cited above does not deprive the debtor of constitutional due process or any other constitutional right.

Affirmed on direct and cross appeal.


author: Robert H. Dudley, Justice.

text:
    Ronald L. REIMER v. GULF OIL CORPORATION, et al
    83-297
    664 S.W.2d 456
    Supreme Court of Arkansas
    Opinion delivered February 13, 1984
    [Rehearing denied March 12, 1984.]

      Murphy it Carlisle, by: Marshall N. Carlisle, for appellant.

      Hardin, Jesson ir Dawson, for appellees.

      Hollingsworth, J., would grant rehearing.

   Robert H. Dudley, Justice.

The issue in this case is whether the owner of oil and gas rights in one tract of land may use the surface of that tract to gain access to an adjacent tract to drill on the adjacent tract. We affirm the trial court and hold that the lease of mineral rights gives appellees the express right to cross appellant’s surface estate. Jurisdiction is in this Court by virtue of Rule 29(1 )(n) and (o).

In 1919 the mineral ownership was severed from the surface ownership of the first tract. In 1961 the appellees acquired the right to all oil, gas, sulphur and other minerals in that tract. In 1974 the appellant acquired the surface estate of the property. In 1980 the appellees improved a private road on the property by adding shale and gravel to an existing roadbed and then extending the road 100 lineal feet to the western boundary of the property. Appellees used the road to transport a drilling rig across appellant’s surface estate to the well site which was located upon an adjacent tract. The well now produces gas and appellees use the road to get to and from the well. It was stipulated that the drilling site and appellant’s tract are located in the same drilling unit, as described by Ark. Stat. Ann. § 53-114 (Repl. 1971).

In Count I of the complaint, appellant alleged trespass by the appellees in entering the land to improve the road to the well site. Counts II and III sought alternative relief for excessive use of the land if the trial court found the appellees had a right to go upon appellant’s land pursuant to the mineral lease.

Following appellant’s testimony and the stipulation, the appellees were granted a directed verdict as to Count I, damages for trespass, and appellant voluntarily non-suited Counts II and III of the complaint. On appeal, appellant contends there was error in the trial court’s exclusion of evidence concerning the measure of damages and in the directing of a verdict as to Count I of the complaint. The argument is without merit.

The appellees’ lease grants to appellees the express right to construct such roads as are necessary to drill for gas on appellant’s lands and also provides that if the well site is within the same drilling unit as is appellant’s surface estate, the well will be considered as upon appellant’s land. Since the well is within the drilling unit, the appellees have an express right to cross appellant’s surface estate and can be liable only for unreasonable use. Reasonable use is described in Wood v. Hay, 206 Ark. 892, 175 S.W.2d 189 (1943) and Arkansas Louisiana Gas Co. v. Wood, 240 Ark. 948, 403 S.W.2d 54 (1966). Appellant non-suited Counts II and III of his complaint which contained the prayer for damages for unreasonable use. The trial court properly granted a directed verdict as to Count I of the complaint.

Affirmed.

Hays, J., did not participate in final decision.


author: Steele Hays, Justice.

text:
    Kelvin Ray LOVE v. STATE of Arkansas
    CR 83-53
    664 S.W.2d 457
    Supreme Court of Arkansas
    Opinion delivered February 13, 1984

      Campbell ér Campbell, by: James C. Campbell; and Q. Byrum Hurst, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant was convicted of the April 5, 1982 capital murder of his teacher and a fellow student at the Garland County Community College. The jury rejected his plea of not guilty by reason of insanity, imposing a sentence of life without parole. Seven assignments of error are cited for reversal, which in part have merit.

We first address appellant’s claim that error resulted from remarks made by the trial judge. During voir dire defense counsel asked a venireman whether he could acquit if the insanity defense were proven, and the venireman asked if “acquit” meant go free. The defense began to explain the options open to the court but was halted by the state’s sustained objection. The judge then stated that acquit means to “go free.” The defense objected and asked the trial judge to give a further explanation of its remarks and to read Ark. Stat. Ann. § 41-612 to the jury, which gives the options available to the court when a defendant is acquitted on grounds of mental disease or defect, i.e., commitment, conditional release or discharge. These requests were denied along with a defense motion for a mistrial. At the close of the trial the defense requested an instruction that would have told the jury the options open to the court if the defendant were found not guilty by reason of insanity. The request was refused.

In Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981), similar instructions were requested at the close of the trial and denied because we found such instructions raise questions “foreign to the jury’s primary duty of determining guilt or innocence.” We find no error in the court’s refusal of the requested instructions. However, the statement that acquit means “go free” requires reversal. The jury is not to be told the options available to the court when a defendant is found not guilty by reason of mental disease or defect and it is equally impermissible to comment on one of the alternatives, as it would be to comment on all of them. The error is underscored here by the fact that this particular alternative when suggested alone plainly tends to influence the jury away from a verdict of not guilty based on the appellant’s defense of insanity. It is not conceivable that a jury could freely consider all the possible findings when it is not told what happens to a defendant who is acquitted by reason of insanity, but hears the trial judge say that the defendant would go free if acquitted. A similar situation arose in Bagley v. State, 274 Ark. 113, 444 S.W.2d 567 (1969), where the trial court improperly stated the law on punishment to the jurors during voir dire in a homicide case. The remarks constituted a suggestion to the jury that the punishment should be fixed at death. The state argued that any error was cured when the court explained the forms of verdicts and advised the jury to fill in the blanks as they saw fit. We said:

The damage could have been removed only by an equally positive statement of correction. The court’s statement that extenuating circumstances must be produced to avoid the death penalty was clear and unequivocal; only a corrected statement of equal stature could have erased it.

We next consider appellant’s objection to the trial court’s failure to provide the jury with a verdict form stating that the defendant was “not guilty by reason of mental disease or defect.” The trial court had instructed the jury on five possible verdicts: capital murder, murder in the first degree, murder in the second degree, not guilty and not guilty by reason of mental disease or defect. The jury was then told to consider and complete one of four verdict forms, the “not guilty by reason of mental disease or defect” being the one charge not reflected by a verdict form. It was at this point that the appellant requested the additional form. Appellant bases his argument in part on § 41-612, supra, which provides for the effect of acquittal on the grounds of mental defect or disease. He argues that the instructions, to accurately state the law, should include the verdict form he requested.

We are aware of the problems confronting a jury dealing with the defense of insanity. See Curry, supra. Here, the jury was instructed on two “not guilty” options, but received only one form that read simply, “not guilty.” In that situation, there is an appreciable likelihood for the jury to conclude that there was no distinction between “not guilty” and “not guilty by reason of mental disease or defect.” By the jury receiving only one form and no further instructions from the court, prejudice against the defendant was created, the jury very conceivably being misled as to the impact of its finding. The confusion that could have resulted from this situation was heightened by the court’s earlier suggestive statement in voir dire that acquit means to go free. Although as a general rule, the “not guilty” verdict forms do not reflect an affirmative defense, we think it was error to deny the request in the context of this case.

Our Per Curiam Order of January 29, 1979, 264 Ark. 967, authorizes such a request. We stated that an AMCI instruction is to be used unless the trial judge finds it does not accurately state the law. If there is no instruction on a subj ect upon which the j udge determines the j ury should be instructed, an appropriate instruction can be given. We consider the verdict forms in this case as part of the instructions in reviewing the denial of the request. We have held that the court is not required to give an instruction just because it accurately states the law, Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980), particularly if the instruction is sufficiently covered by those given. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). But here, the instructions and verdict forms in conjunction with the court’s earlier comment in voir dire did not accurately reflect the law and as we noted in Conley, supra, a misstatement of law is more damaging than simply an omission. The reason for the Judge’s denial of the request makes it clear what he intended to communicate to the jury. When denying the request he stated: “I think it’s consistent with what I tried to say on acquittal [acquit means “go free”]. I’m not going to give it.” In contrast, we found in Bagley, supra, that the suggestive comment by the Judge could only be overcome “by an equally positive statement of correction.” Here, instead we had an avowed reinforcement of the earlier mistake. Although we don’t say that the requested verdict form would have constituted such a remedial statement, it is not necessary for us to so conclude to find error. The absence of the requested instruction — and any further clarification in the instructions along with the Judge’s earlier statement left the jury with an inaccurate statement of the law. It was the Judge’s misconception that his prior statement and instructions taken together were a correct statement of the law and it was therefore error here to deny an accurately worded verdict form that would have aided in curing the earlier error and clarifying the instructions given to the jury.

We do not find error in the other five points appellant raises but will discuss them as they may arise on retrial. Appellant believes the trial court erred in denying his motion for change of venue because of the publicity the case received. There was a good deal of publicity, though appreciably less than the “hundreds of articles” appearing in Ruiz & Van Denton v. State, 265 Ark. 875, 582 S.W.2d 915 (1979) and the “saturation” received in Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978). The affidavits submitted pro and con were conflicting but those for the appellant clearly outnumbered those for the state. We have noted on this point, however, that the quantum presented is not necessarily significant, Kirkendahl v. State, 265 Ark. 853, 581 S.W.2d 341 (1979), and if there is conflict in the testimony it is for the trial court to resolve. Rush v. State, 238 Ark. 149, 379 S.W.2d 29 (1964). We are not persuaded that the trial court should have granted the motion because here, as in Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983), we found the most significant factor to be that jurors and two alternates were accepted without exception as “good” for the defense. The appellant does not claim that his peremptory challenges were exhausted nor does the record show that to have occurred, and additionally, as in Simmons, a correspondingly small percentage of prospective jurors, evidently eight out of fifty-three, were excused because of opinions formed about the defendant’s guilt.

Appellant also claims error in the instructions, which were given for capital murder, first degree and second degree murder. He objected to the wording of the second degree instruction and requested an instruction on manslaughter, which was denied. Any error was rendered harmless by the fact that the jury found appellant guilty of capital murder, rather than first degree on which the jury was also instructed. See Brown v. State, 219 Ark. 647, 243 S.W.2d 938 (1951); Robertson v. State, 256 Ark. 366, 507 S.W.2d 513 (1974). However, on retrial the wording of the instruction on second degree murder should be corrected. The instruction given for that charge was a hybrid of two alternatives given in AMCI for second degree murder. The first alternative contemplates a situation where one victim is intended but another person is killed and the second, where the intended victim is the one in fact killed. The instruction given did not make it clear which set of facts was being covered. On retrial the correct instruction should be given depending on which the court determines is appropriate to the proof. As to the manslaughter instruction we think the instruction was properly refused on the proof presented in this trial. In Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980), a very similar case based on the insanity defense, we said: “We perceive no justification for an instruction on manslaughter, however, since it contemplates a crime committed with at least some evidence of reasonable excuse.”

Appellant next alleges the court erred by permitting evidence in violation of Arkansas U.R.E. 404(b), of an incident that took place shortly after the shooting when the appellant took a hostage in order to flee the scene. The only real issue in this case was intent and the appellant’s defense of insanity. Evidence is relevant if it has “any tendency to make the existence of any fact. . . more or less probable than it would be without the evidence.” Ark. U.R.E. 401. As intent was the only issue to be resolved, evidence of other crimes was properly allowed if it was probative of the intent of the crime charged. The evidence was properly admitted under 404(b) to show intent — the appellant’s capability of acting in a criminal manner and comprehending it as such, and to show his ability to premeditate and deliberate. We have found similar acts admissible and not outweighed by any prejudicial effect. In Perry v. State, 277 Ark. 59, 639 S.W.2d 344 (1982) the defendant was convicted of first degree murder. At trial the defendant had claimed self-defense. Evidence was presented by a witness who didn’t see the shooting but heard shots and went to investigate. He testified he saw the defendant waving a gun and asking, “Who else wants some of this?” and then pointing the gun at another individual and saying, “Do you want some of this?” and “I should have killed him.” We said:

The testimony of this witness as to what he saw and heard established a course of conduct during which the alleged crimes occurred and was relevant to the issue of motive or intent. Further, where acts are intermingled and contemporaneous with one another, the evidence with respect to any and all of them is admissible to show the circumstances surrounding the whole criminal episode.

The appellant maintains it was wrong for the court to refuse a requested instruction that lay opinions could be considered as well as expert opinions concerning the defense of insanity. The instruction given on expert testimony stated that the jury could disregard the expert testimony if they found it unreasonable. Additionally, a standard instruction was given that the j ury was the sole j udge of the weight to be given all the evidence. We said in Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979), that when the requested instructions were sufficiently covered by those given, the trial court is not required to instruct the jury in every possible manner, even though a party’s offered instruction may not be incorrect. Here the requested instruction was sufficiently covered in those given by the trial court.

Appellant finally argues that the court erred in failing to grant his motion for a psychiatric examination conducted by a private psychiatrist at state expense. We have addressed this argument before on the same grounds raised here and found it without merit. Hale v. State, 246 Ark. 989, 440 S.W.2d 550 (1969); Andrews v. State, 265 Ark. 390, 578 S.W.2d 585 (1979).

We have examined all other objections made during the trial pursuant to Rule 11(f), Rules of the Supreme Court, Ark. Stat. Ann. Vol. 3A (Repl. 1977) and find no error. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

Reversed and remanded.

Justice Hickman concurs, see Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981).

Justice Hollingsworth not participating.

      We take note of Ark. Stat. Ann. §41-2135 which was not given in this case:
      Instruction when insanity a defense. — If the defense be the insanity of the defendant, the jury must be instructed, if they acquit him on that ground, to state the fact in their verdict.
      If the jury is instructed that it can find the defendant not guilty by reason of mental disease or defect and is additionally instructed in accordance with § 41-2135, that should sufficiently apprise the panel of its options.


text:
    Harvey WILLIAMS, Jr. v. STATE of Arkansas
    CR 83-132
    663 S.W.2d 928
    Supreme Court of Arkansas
    Opinion delivered February 13, 1984

      Danny P. Rodgers and James C. Graves, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

This is the second appeal of appellant’s conviction of capital felony murder for the rape and murder of a seventy-eight year old woman, Sidney Riley. He was sentenced to life imprisonment without parole, but on appeal the case was reversed and remanded on the ground that the Denno hearing had been conducted without the state producing all the material witnesses. Williams v. State, 278 Ark. 9, 642 S.W.2d 887 (1982). On retrial, appellant was again found guilty and given the same sentence. He brings this appeal on two points, neither of which has merit.

Appellant contended in the first appeal that evidence was obtained without a lawful arrest. He had been taken into custody at the state police headquarters and had received repeated Miranda warnings. While there the police had taken some of appellant’s clothing for lab examination and appellant voluntarily offered and gave a full confession. Shortly thereafter, formal words of arrest were addressed to the appellant. We found it was not essential to pinpoint the moment of arrest. Probable cause had existed when the appellant was first taken into custody and the officers were not required to make an arrest when they first had probable cause. Formal words were not essential to an arrest and the arrest had existed in fact without a specific statement to that effect. Appellant now argues that we reconsider our holding because there was new testimony at the second Denno hearing negating any arrest in fact, express or implied. Although there was some additional testimony at the second hearing generally pertaining to this issue, there was nothing additional that altered the circumstances underlying our holding in Williams I — nothing to negate the existence of probable cause or the circumstances of the arrest in fact.

Appellant also maintains the court erred in failing to grant his motion for a directed verdict. He argues that the evidence was insufficient to show that the death of Sidney Riley was caused in the “course of and in furtherance of the rape and under circumstances manifesting an extreme indifference to the value of human life.” Ark. Stat. Ann. § 41-1501 (1) (a). Appellant contends that Mrs. Riley had a knife in her hand, struck at him and in the ensuing struggle his weight came down on the knife and stuck in her chest. The knife was found in the victim’s hand and there was no evidence of appellant’s fingerprints on the knife. Appellant argues that at most the evidence would only support a finding of manslaughter.

The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Substantial evidence must be forceful enough to compel a conclusion one way or another beyond suspicion and conjecture, Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982), and circumstantial evidence can present a question for the jury and provide the basis to support a conviction. Yandell v. State, 262 Ark. 195, 555 S.W.2d 561 (1977). On review it is only necessary to ascertain that evidence which is most favorable to the appellee and if there is substantial evidence to support the verdict, the finding must be affirmed. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). When Mrs. Riley’s body was found, it was determined that she had been stabbed with a knife. The medical examiner’s testimony was revealing. He testified that the victim had suffered “two kinds of violence.” First was the sexual assault, the evidence indicating the act was done in a violent manner. The victim’s clothes had been torn, were in disarray and the vaginal area had been bruised. Second and significantly, the examiner testified that there were two stab wounds in the chest area of the victim. We find from the circumstances of the death and the evidence presented that there was substantial evidence from which the jury could conclude that the death was caused under circumstances manifesting extreme indifference to the value of human life.

We have examined all other objections made during the trial pursuant to Rule 11(f), Rul'es of the Supreme Court, Ark. Stat. Ann. Vol. 3A (Repl. 1977) and find no error. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

The judgment is affirmed.


author: P. A. Hollingsworth, Justice. Hickman, J.,

text:
    Don VENHAUS, Pulaski County Judge v. Judge David HALE, Pulaski Municipal Court
    83-236
    663 S.W.2d 930
    Supreme Court of Arkansas
    Opinion delivered February 13, 1984

      Henry & Duckett, for appellant.

      Dillahunty, Skelton ir James, for appellee.
   P. A. Hollingsworth, Justice.

Don Venhaus, Pulaski County Judge, appeals from a denial of a writ to prohibit Pulaski Municipal Judge David Hale from ordering Venhaus to pay the fee of a Special Prosecutor in the amountof $16,125.00. Judge Hale, oneof several municipal judges in Pulaski County, issued an order September 14, 1982, finding that the regularly elected Prosecuting Attorney had disqualified in a criminal case involving William C. McArthur and appointing W. H. Dillahunty as Special Prosecuting Attorney to represent the state in Pulaski County Municipal Court. The order stated that Dillahunty would have “all the powers normally granted to an elected Prosecuting Attorney and empowered him to take all actions necessary to carry out those duties.”

Judge Hale issued another order on March 21, 1983, directing that “the cost of the Special Prosecuting Attorney, his investigators, and other costs of the investigation shall be borne by Pulaski County.” On April 27, 1983, Judge Hale issued an order stating “upon the inherent authority of this Court to appoint a special prosecutor when the regular prosecuting attorney is disqualified, the Court finds that the County of Pulaski should pay W. H. Dillahunty $16,125.00 for his legal services performed for this Court.”

County Judge Venhaus filed a motion before Judge Hale to vacate the April 27, 1983 order, and when no action was forthcoming, Venhaus filed a writ in Pulaski County Circuit Court to prohibit the payment of the fee to Dillahunty. Venhaus maintains Pulaski County Municipal Court has no jurisdiction and further that Ark. Stat. Ann. § 24-118 provides the exclusive statutory method for payment of fees of special prosecuting attorneys. Pulaski Circuit Court denied the writ, specifically finding that jurisdiction of the parties and jurisdiction of the subject matter of the proceeding was in the Pulaski County Municipal Court. We hear the appeal from that order and reverse.

The appellee judge argues that Venhaus voluntarily submitted to the jurisdiction of the municipal court, and for that reason, the trial court did not err in refusing to issue a writ of prohibition. There is no legal authority cited for this proposition, only the fact that Venhaus paid several bills for investigatory expenses submitted by Dillahunty. We have long held that subject matter jurisdiction may be raised for the first time on appeal, that the lack of such jurisdiction cannot be conferred by consent of the parties, and cannot be waived by any act of the parties. Sugar Grove School Dist. No. 19 v. Booneville Special School Dist. No. 65, 208 Ark. 722, 187 S.W.2d 339 (1945); Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976). The payment of Dillahunty’s expenses was a gratuitous act on the part of the county and cannot be considered a waiver to object to acts not authorized by law.

The appointment and compensation of a special prosecuting attorney are matters determined by statute. The controlling statutes in Arkansas provide for the appointment to be made by the Circuit Court and the compensation to be paid by the state. See Ark. Stat. Ann. § 24-117, et seq. Since the statute expressly provides how a special prosecutor is appointed, we reach the conclusion that this excludes the appointment by an inferior court. We have held “[w]here an Act undertakes to regulate the subject of which it treats and points out the manner and place in which the act regulated may be done, there is an implied inhibition against doing it otherwise or elsewhere. In such cases the maxim expressio unis est exclusio alterius becomes a canon of construction.” Cook, Comm. of Revenues v. Arkansas-Missouri Power Corp. 209 Ark. 750, 753, 192 S.W.2d 210 (1946).

We hold that an attorney appointed by a municipal court as a special prosecutor is not entitled to recover from the county for the services rendered by him in the absence of statutory authority for the appointment or the compensación. This is a sound proposition since an attorney is not bound to accept an appointment to aid in the prosecution of a criminal case and may decline. If he accepts, he should know the limitations on the power of the court to make the appointment and to allow compensation for his services. “If such authority is exceeded he cannot complain that his services have been required without compensation.” 63 Am Jur 2d Prosecuting Attorneys § 20 p. 348 (1972).

The inherent power of the courts to order the expenditure of funds to compensate court-appointed prosecutors has been upheld in other jurisdictions. We do not disagree with this doctrine but hold that the exercise of such inherent powers is limited by statutes in Arkansas. See 59 A.L.R. 3d 569, 625-26 § 14 (1974).

We have held that prohibition is the proper remedy in this type of case. Beaumont, Judge v. Adkisson, Judge, 267 Ark. 511, 593 S.W.2d 11 (1980); Duncan v. Kirby, Judge, 228 Ark. 917, 311 S.W.2d 157 (1958).

The case is properly before us on appeal. See Ark. Stat. Ann. § 33-108 (Repl. 1962).

We reverse and remand to the trial court with instructions to grant the Writ of Prohibition.

Reversed.

Hickman, J.,

concurs, and still adheres to his views expressed in Pulaski County Municipal Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981).


author: J. Gaston Williamson, Special Justice.

text:
    Ronald J. LITTLETON and Jerry F. O’NEAL v. E. P. BLANTON; The City of MARKED TREE, Arkansas, by Howard DAWSON, Its Mayor; The STATE of Arkansas, by Steve CLARK, Its Attorney General
    83-163
    665 S.W.2d 239
    Supreme Court of Arkansas
    Opinion delivered February 13, 1984

      Michael Everett, for appellants.

      Burk Dabney and Mitchell, Williams, Selig, Jackson ir Tucker, by: Byron Freeland and Debra K. Brown; and Steve Clark, Atty. Gen., by: E. Jeffrey Story, Asst. Atty. Gen., for appellees.
   J. Gaston Williamson, Special Justice.

Appellants were tried and convicted of misdemeanor criminal charges in the Municipal Court of Marked Tree, Arkansas. The Marked Tree Municipal Court was created pursuant to Act 616 of the 1975 Acts of the General Assembly of the State of Arkansas (“Act 616”). Appellants challenged the validity of the Marked Tree Municipal Court on the ground that Act 616 violates the 14th Amendment to the Arkansas Constitution of 1874 which prohibits “local or special” legislation.

Act 616 provides that any municipality of the first class located in any county having a population of not less than 26,500 nor more than 28,000 according to the 1970 Federal Census may establish a municipal court with the same jurisdiction as courts of the Justice of the Peace, which jurisdiction shall be coextensive with the township. The mayor of the municipality, with the concurrence of the city council, may designate any qualified elector of the township, or any licensed attorney who maintains an office in the township, to serve as judge of the court, to be paid such monthly salary as the city council shall determine. After deducting fees and costs due the sheriff or other officers, there shall be paid to the municipality all sums collected in civil and criminal cases arising out of violations of city ordinances and one-half of all sums collected in civil and criminal cases arising out of violations of State laws in the township where the court is located. The Act recites that its purpose is to provide an alternative procedure for the creation of a municipal court by a city of limited financial means and lacking a local attorney.

Ark. Stat. § 22-701 et seq., is the general statute governing the creation, jurisdiction and operation of municipal courts in Arkansas. Act 616 differs from Ark. Stat. § 22-701 et seq., by providing that (1) the judge may be any qualified eletor (rather than an attorney of at least 25 years of age who has practiced at least 3 years, Sec. 22-704.4), (2) the judge may be appointed by the Mayor with the concurrence of the City Council (rather than be elected by the voters, Sec. 22-703), (3) the judge’s salary may be fixed by the City Council (rather than by the Legislature, Sec. 22-704), (4) the jurisdiction of the court will be the same as a justice of the peace court and coextensive with the township (rather than a jurisdiction broader than that of a justice of the peace court and coextensive with the county, Sec. 22-709), and (5) one-half of the fines for violation of state laws are to be paid to the city (rather than all of such fines being paid to the county where the arresting officer was not a city police officer, Sec. 22-719).

Pursuant to Act 616, the City of Marked Tree by Ordinance No. 115 created the Municipal Court of Marked Tree, and the Mayor, with the concurrence of the City Council, appointed E. P. Blanton as Municipal Judge. E. P. Blanton is not a graduate of any law school nor admitted to practice law in Arkansas, but he had served as judge of the Marked Tree Police Court for about 13 years prior to his appointment as Municipal Judge. At the time E. P. Blanton was appointed Municipal Judge, there were lawyers who would have qualified as a municipal judge for Marked Tree under Ark. Stat. 22-704 and 22-705 and who would have been willing to serve as municipal judge.

Act 616, applicable only to counties with a population between 26,500 and 28,000 in the 1970 Federal Census, applies only to Poinsett County and can never apply to any other county. There are five cities of the first class in Poinsett County, all of which have a Municipal Court, but Marked Tree is the only municipal court with a non-lawyer municipal judge.

An admirable historical background to an understanding of the Arkansas cases decided under Amendment 14 may be found in “Special and Local Acts in Arkansas,” by Robert M. Anderson, 3 Arkansas Law Reivew 113 (1949). Prior to Amendment 14, this Court had routinely invalidated acts expressly limited to named political units; consequently, the General Assembly, as a means of enacting bills of limited application, turned to class legislation which this Court had previously said was not per se local or special. Farelly Lake Levee District v. Hudson, 169 Ark. 33, 273 S.W. 711 (1925). An act is not local or special simply because it is limited to a class consisting of less than all citizens of the state or less than all of its territory. However, generality ends and specialty begins where the class established by the act has no reasonable relation to the purpose or subject matter of the enactment or omits from its operation persons or areas which would fall naturally into the class to which the act is limited. McLaughlin v. Ford, 168 Ark. 1108, 273 S.W. 707 (1925); 2 Southerland, Statutory Construction, sec. 2104 and sec. 2106. The Court may look outside of the act and consider any fact of which judicial notice may be taken to determine if its operation and effect is special, regardless of its form. Ash-Ark Lumber Company v. Pride & Fairley, 162 Ark. 235, 258 S.W. 335 (1924). As this Court held in Simpson v. Matthews, 184 Ark. 213, 216, 40 S.W.2d 991, 992 (1931):

“The classification of counties and municipalities is legitimate when population or other basis of classification bears a reasonable relation to the subject matter of the legislation, and the judgment of the legislature should control unless the classification is arbitrary or is manifestly made for the purpose of evading the Constitution.”

Where the class employed to limit the application of an act consists of a single county, city or district, this Court has often concluded that the act is special or local within the meaning of Amendment 14. See, for example, State ex rel. Burrow v. Jolly, County Judge, 207 Ark. 515, 181 S.W.2d 479 (1944); Simpson v. Matthews, supra; McLellan v. Pledger, County Treasurer, 209 Ark. 159, 189 S.W.2d 789 (1945); Street Improvement Districts Nos. 581 and 585 v. Hadfield, 184 Ark. 598, 43 S.W.2d 62 (1931); and Laman, Mayor v. Harrill, 233 Ark. 967, 349 S.W.2d 814 (1961). Were it not for the “administration of justice” exception hereinafter discussed, this Court would have no hesitancy to declare Act 616 invalid under Amendment 14.

Amendment 14, adopted in 1926, is simple and concise: “The General Assembly shall not pass any local or special act. This shall not prohibit the repeal of local or special acts.” Arkansas is the only state with a Constitution which declares its total disapproval of this type of legislation, with no exceptions (see “Special and Local Acts in Arkansas,” supra). But this Court appears to have carved out as an exception to Amendment 14 acts relating to the administration of justice.

The origin of this exception lies in Waterman v. Hawkins, 75 Ark. 120, 86 S.W. 844 (1905), decided in 1905 when the Constitution provided that no special law shall be enacted without prior publication of notice of such proposed act and without evidence of such publication being exhibited to the Legislature. In that case this Court upheld an act which abolished a judicial district in Desha County and provided for a transfer of its cases to another court. This Court sustained the special act on the basis of a conclusive presumption that the required notice was in fact published and exhibited to the Legislature. However, the Court went on to hold that the statute was not a local or special bill within the meaning of the constitutional requirement of publication, and said (p. 125 and p. 846):

"Statutes establishing or abolishing separate courts relate to the administration of justice, and are not either local or special in their operation. Though such an act relates to a court exercising jurisdiction over limited territory, it is general in its operation, and affects all citizens coming within the j urisdiction of the Court.”

The Court borrowed this rule from the Missouri case of State v. Yancy, 123 Mo. 291, 27 S.W. 380 (1894), from which it quoted the following language with approval:

" ‘Whether an act of the Legislature be a local or general law must be determined by the generality with which it affects the people as a whole, rather than the extent of the territory over which it operates; and if it affects equally all persons who come within its range, it can be neither special nor local within the meaning of the Constitution.’ ”

Of course, that language states a standard which might be applied to any statute regardless of subject matter, but the Missouri case obviously intended to limit its application to the judicial system. Its holding was based upon the principle that the judicial system of the state is a composite whole, that a circuit court within and for a county is still a state court, not a local court, and that any law passed by the Legislature with reference to a particular circuit court, though not applicable to every court of like nature within the state, is not a local act within the meaning of a constitutional restriction on local or special acts. We have also recognized that as the rationale of the Missouri case on which Waterman was based. Cannon v. May, 183 Ark. 107, 109, 35 S.W.2d 70, 71 (1931).

While the Waterman case has frequently been cited as authority for the rule that acts relating to the administration of justice are neither local nor special within the meaning of the Constitution [see, for example, City of Stuttgart v. Elms, 220 Ark. 722, 249 S.W.2d 829 (1952)], this Court has never been comfortable with the rule so broadly stated nor consistent in its application.

In Buzbee v. Hutton, 186 Ark. 134, 52 S.W.2d 647 (1932), this Court held that an act making the Pulaski Chancery Clerk appointive rather than elective was not unconstitutional as a local or special act. While citing the above-quoted language from the Waterman case, Special Judge Lamar Williamson reviewed the reasons why the Chancery Court of Pulaski County, the seat of the State government, was different from other chancery courts and in a class by itself, and held that the classification limited to Pulaski County was not unreasonable or arbitrary.

However, in Sebastian Bridge District v. Lynch, 200 Ark. 134, 138 S.W.2d 81 (1940) and McLellan v. Pledger, 209 Ark. 159, 189 S. W.2d 789, this Court held that acts increasing the salary of the court reporters for the Fourth and Tenth Chancery Districts did not violate Amendment 14, since a court reporter was an essential officer in the administration of justice. The Court cited Buzbee v. Hutton, supra, as authority for its decision, without mentioning the uniqueness of the Pulaski Chancery Court discussed in the Buzbee case.

On the other hand, our Court has held unconstitutional as special or local legislation a number of acts which clearly relate to the administration of justice. In Cannon v. May, supra, an act fixing the salary of the county and probate clerk of Hempstead County was held to be unconstitutional as a local or special act. Although the Court cited the Waterman case, it appeared to limit the Waterman rule to statutes establishing or abolishing courts rather than to acts merely relating to the administration of justice.

Acts relating to the payment of jurors in Arkansas County [Norsworthy v. Searan, 185 Ark. 98, 46 S.W.2d 6 (1932)] and the payment of a circuit clerk and his deputies in Garland County [State v. J ones, 193 Ark. 391, 100 S.W.2d 249 (1937)] were found to be special or local legislation without reference to the Waterman case or to its exception of acts relating to the administration of justice. In Wilson v. State, 222 Ark. 452, 261 S.W.2d 257 (1953), an act fixing the fees of justices of the peace in Baxter County was held to be unconstitutional as local or special legislation. The Court implied that the frequently (and above) quoted language in the Waterman case was dicta, and that the fees paid to justices of the peace were not “indispensable to the administration of justice.”

In recent years the Court has grown increasingly concerned with and critical of the exception. In Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980), this Court held as invalid under Amendment 14 an act which permitted the judge of only one division of the five divisions in the Sixth Judicial Circuit to set salaries for court personnel. Although the act clearly related to the administration of justice, this Court said (p. 514 and p. 13):

“The only way that Act 629 could be legal is if it were held to be an act relating generally to all circuit courts in the Sixth Circuit and it is determined to be essential to the administration of justice.”

Board of Trustees of Municipal Judges and Clerks Fund v. Beard, 273 Ark. 423, 620 S.W.2d 295 (1981), involved the constitutionality of Act 155 of 1979 which added a fourth classification of eligibility for municipal court clerk retirement by including any clerk who had served at least 20 consecutive years as a city employee with at least 8 of such years as municipal clerk. The act by its terms applied only to municipal court clerks in municipalities situated in counties of more than 150,000 population, which at the time of its passage included only Pulaski County. Although there were four municipal courts in Pulaski County, the act was specifically enacted to make appellee, Clerk of the Little Rock Municipal Court, eligible for immediate retirement. This Court held that Act 155 was special legislation prohibited by Amendment 14, since the fourth classification was arbitrary and unreasonable, was intended to separate appellee from other municipal clerks and did not treat all municipal clerks within Pulaski County equally. Special Justice Joseph C. Kemp said (p. 428 and p. 297):

“All municipal court clerks in Pulaski County, and in all other counties of the State for that matter, have the same duties, authority and responsibility, functioning as a distinct essential arm of their respective courts, and while this Court has held that legislation pertaining to the judiciary, though dealing differently among counties and courts, is general as opposed to local or special for the reason that the judicial system for the State is an entity in and of itself, whole and not separate, nevertheless this Court has also held that even in dealing with the judiciary, all which should fall equally within a classification must be included and not separated out as in the case of Act 155. See Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).”

In a concurring opinion, one justice acknowledged that this Court had carved out an exception to Amendment 14, i.e. that special legislation is valid if it is essential to the administration of justice. He stated that such an exception is unwarranted, improper and contrary to the Constitution and should cease. In the case at bar, appellants also argue that the exception be abolished.

Despite the fact that Act 616 clearly relates to the administration of justice, we hold that the statue violates the Amendment 14 prohibition against local or special acts and is void.

Act 616 can never apply to any county other than Poinsett County. The announced purpose of the Act is to enable a city of the first class but of limited financial means and lacking a local attorney an alternative means of creating a municipal court; but a population classification applying only to a county of not less than 26,500 nor more than 28,000 according to the 1970 Federal Census is arbitrary and has no reasonable relationship to cities of limited financial means or lacking a local attorney. According to the 1970 census, Marked Tree had a population of 3,208; there were 32 municipalities in Arkansas with a population of between 2,500 and 5,000 in 1970. There could well have been cities of limited financial means and lacking a local attorney in counties other than Poinsett County.

The Act authorizes the creation of a hybrid municipal court in Poinsett County. It differs from municipal courts in every other county in Arkansas in respect to the qualifications, selection and salary of the municipal judge, the jurisdiction of the court and the disposition of its fines. All five cities of the first class in Poinsett County have municipal courts, but only Marked Tree has created one with a non-lawyer as Municipal Judge, even though there were qualified attorneys who were available to serve. Whether or not Act 616 was passed for the benefit of E. P. Blanton, limiting the Act to Poinsett County is arbitrary and bears no reasonable relation to the announced intention of the Act to provide an alternate procedure for the creation of a municipal court by a city of limited financial means and lacking a local attorney. If there was in fact a real need for such a court, it is arbitrary and unreasonable to assume that such a need existed only in Poinsett County. Act 616 is a shining example of the type of local and special legislation which the people sought to stop by the adoption of Amendment 14.

With commendable conciseness preferred in constitutional pronouncements, Amendment 14 does not define the terms “local” or “special”; yet the people instinctively knew the type of “local and special” legislation which should be stopped. While this Court has from time to time attempted to define “local” or “special” within the meaning of Amendment 14 (for example, Board of Trustees of Municipal Judges v. Beard, supra), it is very difficult to frame an all-inclusive definition, and perhaps it is best that we not attempt to do so. Within the meaning of Amendment 14, a statute is not necessarily “special” if it applies only to some limited persons or things; nor is a law invariably “local” if it applies only to a limited area. It depends in each case upon the subject matter of the legislation, the need to be met and the classification used or factors considered to ensure fairness and non-discrimination in the application of the statute.

With respect to the so-called administration of justice exception, we announce that statutes relating to the administration of justice will no longer be held per se to be neither local or special within the meaning of Amendment 14. Of all areas of legislation, the administration of justice above all should be immune to the evils of discriminatory laws and pork-barreling which Amendment 14 was designed to end. While the Legislature has the authority to establish courts within the limits prescribed by the Constitution, it should strive to create a judicial system throughout the State which is as uniform as practical.

A densely-populated metropolitan area requires more judges, court personnel and different procedures than does a thinly-populated area. The Legislature has traditionally met the growing judicial needs of an area by statutes which apply only to individual counties, judicial districts or even divisions within districts. But these statutes have not been held to be “local or special” within the meaning of Amendment 14, since they were a part of a judicial system for the entire state and were based upon reasonable considerations such as population, case load, transportation and other non-discriminatory factors or classifications.

There is a presumption of constitutionality attendant to every legislative enactment, and the judgment of the Legislature should control unless the classifications used or factors considered are arbitrary and for the purpose of evading the Constitution. Simpson v. Matthews, supra. No “administration of justice” exception to Amendment 14 is needed or proper. As shown above, such an exception has only added to confusion and conflict in the cases on the subject. We will continue to hold that statutes designed to meet the judicial needs of an area on a non-discriminatory basis are a part of a judicial system for the entire state and are not local or special within the meaning of Amendment 14, even though such statutes may apply only to individual counties, judicial districts or divisions within districts. However, merely because a statute relates to the administration of justice will no longer be “a permissible point of penetration into Amendment No. Fourteen” (State ex rel Burrow v. Jolly, County Judge, supra, at p. 518) and a guaranty of its constitutionality. The limited application of the statute must be non-discriminatory and bear a reasonable relation to the subject matter of the legislation.

Reversed.

Hays, J., not participating.