author: Jack Holt, Jr., Chief Justice.

text:
    CITY OF CABOT, et al. v. Edgar R. THOMPSON
    85-69
    692 S.W.2d 235
    Supreme Court of Arkansas
    Opinion delivered July 8, 1985

      William Price Feland, for appellants.

      Rice, Batton, Pierce & Swift, P.A., by; Ben E. Rice, for appellee.
   Jack Holt, Jr., Chief Justice.

At issue in this case is the authority of the City of Cabot to abolish its municipal court and reinstate a police court. Our jurisdiction is pursuant to Sup. Ct. R. 29(1 )(c) as we are being asked to interpret the applicable statutes.

Cabot has been a city of the first class since 1971, which means it has a population of 4,000 or more. Ark. Stat. Ann. § 19-205 (Repl. 1980). It operated a police court until 1974, when the city council passed Ordinance No. 1 abolishing the police court and establishing in its place a municipal court. A conflict arose between the city and the municipal judge when the city council refused to hire a court reporter for the judge. The judge began reducing fines and, on September 24, 1984, the council passed Ordinance No. 4, abolishing the'municipal court and reinstating a police court. The ordinance stated that the financial condition of the city necessitated its passage.'

The appellee, who was the municipa.1 judge, filed an action for declaratory judgment in chancery court asking that the council’s action be declared void. He further sought an injunction restraining the city from holding a police court.

The chancery court found the city had no authority for its action and accordingly held Ordinance No. 4 is null and void. It is from that decision that this appeal is brought. We affirm.

City councils are authorized to create police courts in any cities of the second class. Ark. Stat. Ann. § 22-808 (Repl. 1962). Arkansas Stat. Ann. § 22-811 (Supp. 1983) provides:

Whenever any city of the second class in this State shall, as a result of any special census or the decennial federal census, be elevated by population to a city of the first class, said city may, by act of its governing body, provide for the establishment of a Police Court, to be supported on a fee basis, in lieu of a Municipal Court, until such time as the governing body of the city determines that sufficient funds are available to the city to support the cost of a Municipal Court which would otherwise be established in said City. As soon as the governing body of the city determines that said city has sufficient funds to defray its portion of the cost of operating a Municipal Court, the city shall adopt a resolution or ordinance providing for the creation of such court . . .

It is not the intention of this Act... to repeal any of the laws of this State concerning the establishment of Municipal Courts, but it is the intention of this Act to provide an alternative procedure whereby a city of limited financial means may defer the establishing of such Municipal Court . . . (emphasis added).

Once a municipal court is established by a city, Ark. Stat. Ann. § 22-702 (Repl. 1962) provides that the city’s police court is abolished and its jurisdiction vests in the municipal court.

Pursuant to these statutes, city councils are empowered to create police courts and municipal courts. Once, however, a city of the second class attains first class status, § 22-811 permits them to create a municipal court as soon as the governing body determines they are financially able to do so. Provision is made in § 22-811 for the operation of a police court until the municipal court is created, but it is treated as an alternative which merely defers the creation of the municipal court and not one which replaces it. There is no statutory provision authorizing a city to abolish its municipal court and re-establish a police court due to financial problems within the city.

Appellants rely on the general rule that a legislative body has the authority to abolish what it creates, as enabling the city council to abolish a municipal court which was created by city ordinance. There are limitations to that rule, however, as explained in McQuillin, Municipal Corporations, § 21.10 p. 193 (1980):

Specific grant of power to repeal ordinances,. . . ordinarily is not necessary since it is the general rule that power to enact ordinances implies power, unless otherwise provided in the grant, to repeal them. It is patently obvious that the effectiveness of any legislative body would be entirely destroyed if the power to amend or repeal its legislative acts were taken away from it. There is no implication of power to repeal, however, where an ordinance has been enacted under a narrow, limited grant of authority to do a single designated thing in the manner and at the time prescribed by the legislature, which excludes the implication that the legislative body of the city is given any further jurisdiction over the subject than to do the one act. In brief, no power of repeal exists as to an ordinance that constitutes the exercise of municipal power exhausted by its single exercise. This rule may govern, for example, the . . . creation by ordinance of a . . . city court . . . (emphasis added).

The city created the municipal court under a narrow, limited grant of authority from the legislature. The legislature is the body empowered to provide laws for the organization of cities, Ark. Const. art. 12 § 3, and the creation of municipal corporation courts, Ark. Const. art. 7, § 1. Therefore, there is no implication of power for the city to repeal Ordinance No. 1 establishing the municipal court.

We followed this rule in City of Berryville v. Binam, 222 Ark. 962, 264 S.W.2d 421 (1954), where we found the city council could not abolish by ordinance a municipal office created by the legislature without express authority. We applied this rule again in City of Augusta v. Angelo, 225 Ark. 884, 286 S.W.2d 321 (1956), holding that the city council did not have power to abolish by ordinance an elective office. The position of municipal judge is an elective office and the appellee had been duly elected to a four year term at the time his office was abolished. The chancellor was correct in his determination that the city had no authority for its actions.

Although we are holding that the city acted without authority, the actions that precipitated this litigation warrant a brief comment.

As stated previously, when the city council refused to fund a court reporter for the municipal court, the appellee began reducing fines imposed on defendants who appeared before him in misdemeanor cases, doubtless a form of retaliation. This brought on the attempted abolishment of the municipal court by the city council.

The record does not provide enough information to draw conclusions as to the merits of the need for a court reporter, but for a judge to use the considerable powers of his office to force a decision which belongs to another branch of government, the Cabot City Council, brings no credit to the judicial branch and constitutes a misuse of judicial powers. What appellee cannot achieve by direct persuasion on merit alone, he ought not to seek by duress.

No doubt this problem will now be appropriately resolved in the proper place, the political forum.

Affirmed.

Dudley, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    George WEBB & OTHERS SIMILARLY SITUATED v. WORKERS’ COMPENSATION COMMISSION
    85-22
    692 S.W.2d 233
    Supreme Court of Arkansas
    Opinion delivered July 8, 1985
    [Rehearing denied September 9, 1985.]

      Youngdahl & Larrison, by: James E. Youngdahl and Tara Levy, for appellants.

      Steve Clark, Att’y Gen., by: Robert R. Ross, Deputy Att’y Gen., for appellee.

       Purtle, J., not participating.

   Jack Holt, Jr., Chief Justice.

The appellants are attempting to challenge the qualifications of the employee representative on the Workers’ Compensation Commission (the Commission). The action was dismissed by the chancellor for mootness, and an amended complaint filed by the appellants was also dismissed. It is from those rulings that this appeal is brought. This case was certified to us by the Court of Appeals upon motion by the appellants. Our jurisdiction therefore is pursuant to Sup. Ct. R. 29(4)(b). ;;

The appellant, George Webb of Marianna, Arkansas, filed a claim for an injury against his employer under the Workers’ Compensation Act. After a hearing, the administrative law judge denied the claim. Webb appealed the decision to the Commission on December 5, 1983.

Before the Commission rendered a decision on his appeal, Webb filed a lawsuit in chancery court on May 1, 1984. In his complaint, he alleged that the appointment of Commissioner Melvin Farrar as an employee representative was not consistent with the statutory requirements of the “Workers’ Compensation Law,” Ark. Stat. Ann. § 81-1342(a) (Repl. 1976) which describes the qualifications for that position. The appellant argued that, as a result of Commissioner Farrar’s appointment, he was deprived of an opportunity to receive a fair hearing. Webb sought an order declaring that his right to a fair review has been impaired and an injunction and order staying the Commission from considering his claim.

On May 17, 1984, the appellant amended his complaint to define a class action composed of working persons who have filed or will file appeals before the Commission. On the same day, appellant learned the Commission had denied his appeal on May 16. Commissioner Farrar did not participate in the decision.

A motion to dismiss was filed by the Commission on May 18, seeking dismissal of appellants’ equity claim as being moot since the Commission had already rendered its decision in Webb’s case.

A hearing was held on the motion to dismiss on June 27, and on July 9, the appellants filed a second amended complaint in chancery court. In the second amended complaint, they alleged their standing as taxpayers and sought to include the Arkansas AFL-CIO as class representatives. The complaint also sought relief under the Declaratory Judgment Act, Ark. Stat. Ann. §§ 34-2501 - 2512 (Repl. 1962). Pursuant to this act, the appellants asked the court to declare that Webb’s and other worker’s right to a fair and impartial review of their claims has been impaired; that appellants’ legitimate expectation that the Commission be constituted in an impartial manner has been thwarted; and an order enjoining and staying the Commission from considering appeals currently pending until such time as it may be legally constituted, and declaring any decision by the Commission, as currently constituted, null and void and requiring reconsideration by a legally constituted Commission.

The Commission filed a motion to strike the second amended complaint on July 17. On August 8, the chancery court dismissed appellants’ first amended complaint as moot and, in a second order entered the same day, struck the second amended complaint.

The appellants argue on appeal that it was error to dismiss the complaint in equity for mootness and, also, that the court abused its discretion by striking the second amended complaint. We agree with both contentions.

When the appellant initially amended his complaint in chancery court to assert a class action, he essentially raised new issues. These issues, and the appellants’ standing as taxpayers and as workers who are affected by the other duties of the Commission, see Ark. Stat. Ann. § 81-1343 (Repl. 1976), were not rendered moot by the Commission’s decision on appellant Webb’s compensation claim. Since two different causes of action were presented by the compensation claim and the class action, the decision about the compensation claim does not preclude the appellants from pursuing the class action. The trial court erred when it dismissed the complaint as moot.

The appellants also argue that the chancellor abused his discretion by striking the second amended complaint. The chancellor gave no reason in his order of dismissal for refusing to allow the amendment. Under our rules of civil procedure, a party may amend his pleadings at any time without leave of the court. ARCP 15. If the opposing party files a motion objecting to the amendment, as the appellee did here, the court determines whether prejudice would result, or if the case would be unduly delayed by the amendment. Id. A party should be allowed to amend absent proof of prejudice, and the failure of the opposing party to seek a continuance is a factor to be considered in determining whether prejudice was shown. See Milne v. Milne, 266 Ark. 900, 587 S.W.2d 229 (Ark. App. 1979). Here the appellee did not seek a continuance nor demonstrate any prejudice. The amendment should have been allowed.

Accordingly we reverse the chancellor and order the lawsuit reinstated. The case is remanded for proceedings consistent with this opinion.

Reversed and remanded.

Dudley, J., not participating.


author: Darrell Hickman, Justice.

text:
    Mary Ada Joyner FAITH, et al. v. Ira W. SINGLETON, et al.
    85-66
    692 S.W.2d 239
    Supreme Court of Arkansas
    Opinion delivered July 8, 1985

      Pollard & Cavaneau, by: Odell Pollard, for appellant.

      Lightle, Beebe, Raney & Bell, for appellee.
   Darrell Hickman, Justice.

The trial court refused to admit to probate an instrument signed by Tennie Joyner and duly witnessed, because Mrs. Joyner had said several days before that she did not want a will but merely a piece of paper which, upon her death, would allow Calvin Britton to live in her home and use her furnishings as long as he lived. The trial judge ruled that there was no intent to make a will. We reverse the judgment.

Mrs. Joyner, who was 80 and faced hospitalization the following week, went to the home of her neighbor, Jeff Permenter, on Sunday, November 14,1976, and told him “that she wanted a paper drawed up so Calvin would have a place to stay as long as he lived.” Permenter called his stepdaughter, Reba Cook, and Pat Shourd to be witnesses. Mrs. Shourd was to type the document and she asked Mrs. Joyner what she wanted. Mrs. Joyner said, “I want a piece of paper fixed up so I can sign it and Calvin will have a place to live.” Mrs. Shourd asked her if she wanted a will and Mrs. Joyner said she did not. Mrs. Joyner told Mrs. Shourd that she was concerned about Calvin having a home if she died while in the hospital. Mrs. Joyner also told Mrs. Shourd other provisions she wanted in the document. ' , -

On Friday, November 19, they all met again. Mrs. Shourd testified that she read the document which she had typed to Mrs. Joyner and that Mrs. Joyner “said okay or something along that line.” Jeff Permenter and Reba Cook witnessed the document. All parties signed in each other’s presence. On that day no mention was made of whether the document was a will. This is the document.

State of Arkansas

County of White

I, the undersigned, do hereby request, at the time of my death, that Calvin Britton, Route 5, Searcy, Arkansas, who has lived and care for me for years, have my home and all the furnishings as long as he wants, or as long as he shall live. I further request that only one other person reside in the home with him, not an entire family. Then, at Calvin Britton’s death, the home, property and furnishings can be sold and all proceeds from the property is to go to my brothers and sisters and Thomas Joyner’s (Deceased) brothers and sisters in equal parts.

Appeared before me this 19th day of November, 1976 Jeff Permenter and Reba Cook, and signed this document.

/s/ Pat Shourd_My commission expires 9/16/77

Notary Public

Witness Signed,

Jeff Permenter Tennie E. Joyner

Reba Cook 11-19-76

Mrs. Joyner died on December 9,1983. The First National Bank of Searcy was appointed administrator. When the document was discovered, the bank offered it to the court to determine its nature. Tennie Joyner’s late husband’s legal heirs were the proponents of the will. Tennie Joyner’s heirs opposed it.

Whether the instrument is in fact a will is the question before us. A will is a disposition of property to take effect upon the death of the maker of the instrument. See Clark v. Rutherford, 227 Ark. 270, 298 S.W.2d 327 (1957). To be valid as a will an instrument must be executed with testamentary intent, or animus testandi. Smith v. Nelson, 227 Ark. 512, 299 S.W.2d 645 (1957). That merely means the intention to dispose of one’s property upon one’s death. By looking to the four corners of the instrument, we determine that intent. McDonald v. Petty, 262 Ark. 517, 559 S.W.2d 1 (1977). It is a question of law for the court to determine from the face of the instrument whether the writer intends to make a testamentary disposition. McDonald v. Petty, supra; Stark v. Stark, 201 Ark. 133, 143 S.W.2d 875 (1940).

No doubt Mrs. Joyner intended to dispose of her property on her death, and the instrument clearly sets out what she wanted done. That is enough to qualify it as a will, so far as intent is required. Although Mrs. Joyner said, for whatever reason, that she did not want a will, a will is precisely what she dictated and executed. As Justice Oliver Wendell Holmes stated: “We must think things not words. . . .” Oliver Wendell Holmes, “Law in Science and Science in Law,” Collected Legal Papers, p. 238 (1921). “If what the testator does sign proves to be what the law declares is a testament, and witnesses duly attest it, they have attested a will, though neither the testator nor the witnesses knew that the law declared the writing to be a will.” In re Bybee’s Estate, 179 Ia. 1089, 160 N.W. 900 1917). A person may act animo testandi without knowing that he is making a will, and it is immaterial what kind of instrument he thinks he is making, if only he manifests a clear intent to dispose of his property after his demise and observes the statutory formalities. Merrill v. Boal, 46 R.I. 274, 132 A. 721 (1926). See also Arendt v. Arendt, 80 Ark. 204, 96 S.W. 982 (1906).

The appellees also argue that other reasons should prohibit probate. First, it is contended that the formalities of execution were not followed because Tennie Joyner did not declare the instrument to be her will. Ark. Stat. Ann. § 60-403 a (Repl. 1971) provides in pertinent part: “The testator shall declare to the attesting witnesses that the instrument is his will. . .” The requirement that the testator declare the instrument to be a will is called publication. In Rogers v. Diamond, 13 Ark. 474, 8 Eng. 474 (1853), publication was defined:

Publication under the statute is necessary to give effect to a will; but it means that the testator, having capacity to make a will, shall understand that the instrument which he is about to execute, is a testamentary disposition of his property, and that he shall, at the time, communicate to the witnesses, that he does so understand it. The statute says he shall declare it; but in Remson vs. Brinkerhoff, Nelson, C. J., said that no particular form of words is necessary, and that it would be unwise, if not unsafe, to speculate upon the precise mode of communication, as every case must depend upon its own peculiar circumstances. The fact of publication therefore, is to be inferred or not, from all the circumstances attending the execution of the will; all that is said and done as part of the res gestae.

It is not required that a testator recite precisely the words “this is my will,” although that is obviously the preferred practice. Publication can be inferred from acts and circumstances. Walpole v. Lewis, 254 Ark. 89, 492 S.W.2d 410 (1973); Rogers v. Diamond, supra.

The appellees wish to void Mrs. Joyner’s last requests by asking us to strictly construe the technical requirements of Ark. Stat. Ann. § 60-403. Where there is no indication of fraud, deception, undue influence, or imposition, this court avoids strict technical construction of statutory requirements in order to give effect to the testator’s wishes. Walpole v. Lewis, supra; In re Altheimer’s Estate, 221 Ark. 941, 256 S.W.2d 719 (1953). We seek to determine the intent of the testator. Morgan v. Green, 263 Ark. 125, 562 S.W.2d 612 (1978). It is not disputed that Tennie Joyner understood that she was making a testamentary disposition of her property nor is it disputed that that was communicated to the witnesses and they understood. Tennie Joyner’s intentions and desires were clear.

The appellees also contend, as they did at trial, that the language used by Tennie Joyner was merely precatory, expressing her desire or hope rather than a command to dispose of her property as required in a will. We reject this argument for the same reason the trial judge did. We have specifically found that the words “I request” can be testamentary language intended to direct disposition of the testator’s property. In Chambers v. Younes, 240 Ark. 428, 399 S.W.2d 655 (1966), we approved the testator writing, “I Boyd Ruff request that all I own in the way of personal or real estate property to be my wife Modene.” In Arendt v. Arendt, supra, the testator’s letter to his wife included this language: “Whatever I have in worldly goods, it is my wish that you should possess them.” We found that to be a valid testamentary disposition. In construing words which are claimed to be merely precatory, it is necessary to give effect to the testator’s intent. Gregory v. Welch, 90 Ark. 152, 118 S.W. 404 (1909). In this case the intention is clear and the word “request” reflects Tennie Joyner’s direction as to how to dispose of her property. We hold that the words used by Tennie Joyner made a valid testamentary disposition of her property.

Reversed and remanded.


text:
    Thomas Charles LAMBERT and Elmer SMITH v. STATE of Arkansas
    CR 85-116
    692 S.W.2d 238
    Supreme Court of Arkansas
    Opinion delivered July 8, 1985

      William R. Simpson, Jr., Public Defender, Jacquelyn C. Gregan, Deputy Public Defender, by: Donald K. Campbell, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Connie Griffin, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Thomas Lambert and Elmer Smith escaped from the Wrightsville Unit of the Department of Corrections on August 14,1983. They both pleaded guilty to the charge of escape. Due to the circumstances surrounding the escape, the trial court was convinced they should not receive severe sentences and suspended their sentences. However, the state subsequently realized that, according to Ark. Stat. Ann. § 41-803 (Supp. 1983), neither should have received a suspended sentence, because Smith had four prior convictions and Lambert more than one. The state’s first motion to correct the sentence was denied. However, their motion for reconsideration, filed May 30, 1984, was granted and the judge corrected the first sentence so that Lambert received a six year sentence and Smith eight years.

On appeal the appellants argue that the trial court had lost jurisdiction to correct the sentences. The law is clear that the trial court had no authority to suspend the sentences. Ark. Stat. Ann. § 41-803 (5) is mandatory: “The court shall not suspend imposition of sentence. . .if it is determined, pursuant to Section 1005 [41 -1005], that the defendant has previously been convicted of two (2) or more felonies.” (Italics supplied.)

We have long held that valid sentences cannot be modified once execution of the sentence has begun. Nelson v. State, 284 Ark. 156, 680 S.W.2d 91 (1984); Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983); Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979); Fletcher v. State, 198 Ark. 376, 128 S.W.2d 997 (1939); Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005 (1926). However, we have not applied that rule to an illegal sentence. The general rule is that if the original sentence is illegal, even though partially executed, the sentencing court may correct it. In re Bonner, 151 U.S. 242 (1893); People v. Grimble, 116 Cal. App. 3d 678, 172 Cal. Rptr. 362 (1981); State v. Fountaine, 199 Kan. 434, 430 P.2d 235 (1967); 4 Wharton’s Criminal Procedure § 611 (1976). In this case the court imposed what amounts to a void sentence — one beyond its authority. See In re Bonner, supra. It does not matter that no objection was made at the time since the court was acting in excess of its authority and that was a question of subject matter jurisdiction which cannot be waived by the parties. Coones v. State, supra.

The fact that a notice of appeal had been filed did not preclude the trial court from acting. Glick v. State, 283 Ark. 412, 677 S.W.2d 844 (1984); Andrews v. Lauener, 229 Ark. 894, 319 S.W.2d 805 (1958); Fletcher v. State, supra; Robinson v. Arkansas Loan & Trust Co., 72 Ark. 475, 81 S.W. 609 (1904).

Affirmed.

Dudley, J., not participating.


author: John I. Purtle, Justice.

text:
    Murl RICHARD v. STATE of Arkansas
    CR 85-54
    691 S.W.2d 872
    Supreme Court of Arkansas
    Opinion delivered July 8, 1985

      William R. Simpson, Jr., Public Defender, Jerry Sailing, Deputy Public Defender, by: Thomas J. O’Hern, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted of aggravated robbery and theft of property and was sentenced, as a habitual criminal, to consecutive terms of life and thirty years in prison. On appeal, he argues that the court erred in instructing the jury on an element of aggravated robbery not charged in the information. We think the trial court was correct and affirm.

The victim testified that the appellant brandished a small handgun in the course of robbing her and stealing her purse and van. The information recited that appellant had committed robbery while armed with a deadly weapon. During the course of the trial, the state’s evidence revealed that the only pistol recovered was a small cap pistol. It was found under the seat of a taxicab in which appellant was sitting at the time of his arrest. The victim could not identify the cap pistol as the “weapon” used in the robbery, although she did state that it was a small pistol.

Over appellant’s objection, the court instructed the jury that appellant could be found guilty of aggravated robbery if it were found, among other things, that he “was armed with a deadly weapon or represented by words or conduct that he was armed with a deadly weapon.” The instruction is a model instruction [AMCI 2102] and also tracks the language of Ark. Stat. Ann. § 41-2102 (Supp. 1983).

Appellant’s argument here is that since he was charged with aggravated robbery by the actual use of a deadly weapon, it was error to submit to the jury an instruction which allowed them to convict appellant upon proof that he merely represented that he was so armed. Stated another way, appellant asserts that he was convicted of a crime with which he was not charged.

It is obvious, and undisputed, that the state would have been entitled to amend the information to conform to the proof since such an amendment in this case would not have changed the nature or degree of the crime charged. Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982); Workman v. State, 267 Ark. 103, 589 S.W.2d 21 (1979); Ark. Stat. Ann. § 43-1024 (Repl. 1977). Nevertheless, the state did not amend the information.

In Clayborn v. State, 278 Ark. 533, 647 S.W.2d 433 (1983) we held that it was reversible error to instruct the jury on the elements of rape by forcible sexual intercourse in a case where the defendant had been charged only with rape by forcible deviate sexual activity. We said that the two types of rape are essentially two different crimes, having different natures and involving different acts. We think, however, that this case is more like Ridgeway v. State, 251 Ark. 157, 472 S.W.2d 108 (1971). In Ridgeway, the defendant was charged with assault with intent to kill. The information alleged that the assault was made with a knife. The state’s proof showed that the assault was made with a gun. We held that only one crime, assault with intent to kill, was involved.

We think the same is true here. To sustain a charge of aggravated robbery, the state must prove that the accused: had the purpose of committing a theft or resisting apprehension; employed or threatened to immediately employ physical force upon another; and was armed or represented himself to be armed with a deadly weapon, or inflicted or attempted to inflict death or serious injury upon another, Ark. Stat. Ann. §§41-2102 (Supp. 1983) and 41-2103 (Repl. 1977). Appellant’s argument might have more force if he had been charged with aggravated robbery by inflicting injury and the proof had shown aggravated robbery by use of a weapon. In such a case, thq Clayborn rationale might well apply because of the difference in the natures of, and the acts constituting, the two crimes. In this case, however, the crime charged and the crime proved are essentially identical. Appellant was armed with what appeared to be a deadly weapon. As the commentary to Ark. Stat. Ann. § 41-2103 points out, the gravamen of the crime of robbery is the injury or threat of injury to the victim. The threat of injury was just as real to the victim in this case as it would have been had the gun been capable of inflicting injury. The legislature has made no provision for lesser punishment of those threatening their victims with phony weapons precisely because the victims perceive no difference in the two types of threats.

We have held that an information is not defective if it “sufficiently apprises the individual of the specific crime with which he is charged to the extent necessary to enable him to prepare his defense.” Beard v. State, 269 Ark. 16, 598 S.W.2d 72 (1980); Workman v. State, 267 Ark. 103, 589 S.W.2d 20(1979). See also, Ark. Stat. Ann. §§ 43-1006, 43-1008, 43-1022 (Repl. 1977). We think the information in this case met the applicable requirements. We have also held that instructions which are applicable to the facts of the case and which follow the words of the statute are proper. Wood v. State, 248 Ark. 109, 450 S.W.2d 537 (1970).

In the absence of a motion for a bill of particulars, an objection to the introduction of testimony about the bogus nature of the pistol or to the introduction of the pistol itself, a plea of surprise, or any showing of prejudice, we conclude that the trial court was correct in submitting the instruction at issue.

Pursuant to the requirements of Ark. Stat. Ann. § 43-2725 (Repl. 1977), A.R.Cr.P. Rule 36.24 and Ark. Sup. Ct. R. 11 (f), we have reviewed the record and all objections and find no errors prejudicial to the appellant.

Affirmed.

George Rose Smith and Dudley, JJ., not participating.


author: Steele Hays, Justice.

text:
    Sonia YOUNG v. STATE of Arkansas
    CR 85-51
    692 S.W.2d 752
    Supreme Court of Arkansas
    Opinion delivered July 8, 1985

      John Wesley Hall, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Connie Griffin, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant, Sonia Young, was charged and convicted of indecent exposure under Ark. Stat. Ann. § 41-1812 (Repl. 1977), for nude dancing in a local nightclub. Appellant challenges the conviction on essentially two grounds: first, that her behavior did not constitute an offense under the statute and second, that her conduct was protected under the First Amendment. We find no merit in either contention.

Ark. Stat. Ann. § 41-1812 provides:

Indecent exposure. (1) A person commits indecent exposure if, with purpose to arouse or gratify the sexual desire of himself or of any other person, he exposes his sex organs:
(a) a public place or public view; or
(b) under circumstances in which he knows his conduct is likely to cause affront or alarm.
(2) Indecent exposure is a class A misdemeanor.

Appellant raises four points in her argument that her behavior did not constitute an offense under the statute. She contends first that the purpose of the statute is to criminalize the conduct of “flashers” and not nude dancers. The Commentary to the statute, however, makes it quite clear that appellant’s dancing was indeed intended to be covered by the statute:

“If an exhibition covered by subsection (b) occurs in a public place or in public view, then the actor also falls within subsection (a). However, subsection (a) is primarily directed at the professional exhibitionist before a willing audience whose reaction to the exposure of sex organs is likely to be quite the opposite of affront or alarm.”

Appellant next argues her performance did not occur in a public place or public view. Ark. Stat. Ann. § 41-1801(6) defines public place as one publicly or privately owned “to which the public or substantial numbers of people have access.” The Commentary notes:

“Public place” is defined broadly to include any locality to which substantial numbers of people have access ... As expressly stated in the definition, whether the property is publicly or privately owned is not a determinative factor. Hence a bar or even a private club can be a “public place” if open to substantial numbers of people. Implicit in the definition of public place is that it must be accessible to substantial numbers of people at any one time. A place that is licensed to the general public, but is available to only a few members of the public at any one time, as for example a motel or hotel room, is not a “public place.”

The establishment in this case was a public tavern, not a private club, and at the time of the arrest was serving thirty to forty patrons. Appellant does not deny the bar was a public place but asks us to narrow the definition to exclude establishments that limit their fare only to consenting adults and forewarned viewers. This proposition is contrary to the stated intent of the statute and one more appropriately addressed to the legislature than to the courts.

Appellant claims her actions did not involve the exposure of her sexual organs. She concedes her pubic area was exposed, but her sex organs “scrupulously were not.” There is no testimony to support that contention however and the arresting officer testified that people were sitting below the stage and from that position anyone could see the vaginal area or labia.

As her last point in this argument, appellant insists there was no proof she was dancing to arouse or gratify the sexual desires of herself or others. We have said one’s intent or purpose ordinarily cannot be shown by direct evidence but must be inferred from the facts and circumstances shown in evidence. Owens v. State, 283 Ark. 327, 675 S.W.2d 384 (1984); Johnson & Carrol v. State, 276 Ark. 56, 632 S.W.2d 516 (1982). Here there was a sign outside the building advertising nude dancing with the silhouette of a dancing woman painted on the building. Inside there was a stage where appellant performed. The arresting officer testified appellant removed a brief outfit and while dancing ran her hand over her breast, down over her stomach and rubbed herself on the inner thigh below the vaginal area. As mentioned earlier, there were thirty to forty patrons in the tavern at the time. From the circumstances in their entirety it is a fair inference that appellant’s purpose was to arouse or gratify the sexual desires of others.

Appellant’s remaining constitutional arguments are premised on the argument that her behavior was “mere nude dancing” and entitled to First Amendment protection under the Constitution of the United States. We do not take issue with that contention, except to note that the statute and activity in this case do not deal merely with nudity or nude dancing, but with something more as proscribed by the statute. Appellant makes no argument that the proscribed activity under the statute is entitled to First Amendment protection, only that mere nude dancing is entitled to such protection. As we have said, appellant’s conduct in this case was not simply nudity, but conduct that came within the proscriptions of Ark. Stat. Ann. § 41-1812. As we hold appellant’s conduct not to be mere nudity, and since appellant does not argue the proscribed activity under the statute is constitutionally protected, there is no need to address the remaining aspects of the arguments.

The court suspended imposition of appellant’s sentence for one year on condition that she “not display herself in a public place for commercial exploitation or sales promotion” nor “display herself nude in bars or beer joints.” Appellant challenges this condition as a prior restraint in violation of the First Amendment.

Ark. Stat. Ann. § 41-1203, conditions of suspension or probation, states in part that the court “shall attach such conditions as are reasonably necessary to assist the defendant in leading a law-abiding life.” The statute lists some of the possible conditions the court may attach, including that a defendant be required to “refrain from frequenting unlawful or designated places or consorting with designated persons,” and “any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty . .

The broad objectives sought by probation are education and rehabilitation, and the conditions of probation and suspension should promote those objectives. It is generally held that conditions for probation will be upheld if they bear a reasonable relationship to the crime committed or to future criminality. 21 Am. Jur. 2d § 570. Additionally, a condition of a probation or suspension is not necessarily invalid simply because it restricts a probationer’s ability to exercise constitutionally protected rights. Id; U.S. v. Tonry, 605 F.2d 144 (5th Cir. 1979); Owens v. Kelley, 681 F.2d 1362 (11th Cir. 1982); U.S. v. Pierce, 561 F.2d 735, cert. den., 1978, 435 U.S. 923 (9th Cir. 1977).

In this case, the activity prohibited by the conditions imposed might well involve some protected forms of expression. See, Schad v. Borough of Mount Ephraim, 452 U.S. 67 (1981); Wild Cinemas of Little Rock, Inc. v. Bentley, 499 F. Supp. 655 (1980). Yet our greater concern with this condition is that it may be vague and overbroad. See, In Re Mannino, 14 Cal. App.3d 952, 92 Cal. Rptr. 880 (1971); Tonry, supra. It includes areas of First Amendment protection and other activities as well, that may have no relationship to appellant’s crime, rehabilitation or future criminality. And while a condition of probation or suspension may affect the exercise of a constitutional right within certain limits, those limits include a requirement that it bear a reasonable relationship to the crime and to future criminality.

U.S. v. Tonry, supra, adopts a test developed by the Ninth Circuit to determine whether a probation condition is unduly intrusive on constitutional rights:

The conditions must be “reasonably related to the purposes of the act.” Consideration of three factors is required to determine whether a reasonable relationship exists: (1) the purposes to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of law enforcement.

Insofar as the condition imposed here includes prohibition from a nude display for “commercial exploitation or sales promotion,” we find the order too broad, vague and insufficiently tailored to bear a reasonable relationship to probation/suspension objectives of rehabilitation and future criminality. That part of the order that prohibits appellant from appearing nude in bars or beer joints is valid. Granted, the condition may involve some infringement on the exercise of appellant’s First Amendment rights, as would be determined by the form of expression appellant’s dancing might take, but it nevertheless is reasonably related to the offense and to rehabilitation. As to the other guidelines stated in Tonry, we find the limitation on appellant neither harsh nor unduly restrictive, and the purposes of enforcement of the law appellant violated are served. The condition of probation, to the extent necessary to bring it into compliance with this opinion, is modified and the judgment is affirmed.

Affirmed.

Dudley, J., not participating.


author: David Newbern, Justice.

text:
    Vernon FULMER v. BOARD OF COMMISSIONERS, Water Improvement District #5
    85-136
    692 S.W.2d 246
    Supreme Court of Arkansas
    Opinion delivered July 8, 1985

      Guy Jones, Jr., for appellant.

      Jesse W. Thompson, for appellee.
   David Newbern, Justice.

The appellant’s property was sold at a commissioner’s sale to satisfy a lien created by his failure to pay a water improvement district assessment. The sale was conducted pursuant to a decree entered March 25,1983. The appellant failed to appeal the decree by lodging the transcript with this court within twenty days as is required by Ark. Stat. Ann. § 20-437 (Repl. 1968). According to Ark. Stat. Ann. § 20-439 (Repl. 1968) he lost the right to appeal by not filing the transcript within the twenty-day period.

On November 18,1984, the appellant moved to set aside the decree on which the sale was based claiming the court lacked jurisdiction because notice had not been given to him in the manner prescribed by Ark. R. Civ. P. 4 and that he had thus been denied due process of law. The motion was denied by the chancellor who found that the required statutory notices were given to the appellant and no due process violation occurred.

The chancellor also found that the appellant had forfeited his right of appeal. The parties have not given us satisfactory briefs on the question of whether the chancellor had the authority to set aside the decree and whether his refusál to do so was an appealable order. We, therefore, choose not to decide that issue but to decide, on its merits, the question whether notice to the appellant was sufficient.

Our jurisdiction is based on Arkansas Supreme Court and Court of Appeals Rule 29.1 .c. as this case involves interpretation of statutes and a rule of civil procedure.

The record shows notices were given the appellant by publication and by mail as required by Ark. Stat. Ann. §§ 20-443 (Repl. 1968) and 20-1156 (Supp. 1983), respectively. Ark. R. Civ. P. 4 does not apply to this sort of special statutory action which contains its own provisions for notice. See Ark. R. Civ. P. 81(a).

Nor do we agree that the notice given the appellant failed to comport with due process. We agree with the appellant’s argument that he was entitled to notice and an opportunity to be heard prior to the entry of a decree requiring sale of his property. The only cases cited by the appellant on this point are Franklin v. State, 267 Ark. 311, 590 S.W.2d 28 (1979), and Roswell v. Driver, 268 Ark. 819, 596 S.W.2d 352 (Ark. App. 1980), which, respectively, involved no notice and defectively administered notice. It is clear that the appellant received the two kinds of notice to which the statute entitled him. The appellant makes no showing that the notice was not in accordance with the applicable statutes or otherwise was defective.

Affirmed.

Robert Dudley, Justice, not participating.


text:
    George Allen PETERS v. STATE of Arkansas
    CR 85-96
    692 S.W.2d 243
    Supreme Court of Arkansas
    Opinion delivered July 8, 1985

      Darrell E. Baker, Jr., Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Velda P. West, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

George Allen Peters was charged with violation of Ark. Stat. Ann. § 75-2503 (Supp. 1983). The information alleged a felony offense of driving while intoxicated and recited that Peters had been convicted of DWI on three occasions. A jury convicted Peters of the offense charged, and he was sentenced to imprisonment for eighteen months and fined $5,000.

We must reverse this conviction for two reasons. First, there was insufficient evidence that Peters was assisted by counsel in one of the three prior convictions alleged. Secondly, the court did not allow the jury to determine the existence of the prior convictions.

1. Evidence of Counsel

The trial court accepted as evidence of one of the three prior convictions a certified transcript of the Farmington, Arkansas, municipal court docket showing that Peters was convicted of DWI, third offense, on September 15, 1982. The docket transcript was silent as to whether Peters had been represented or had waived representation by counsel. If the record is silent as to representation or waiver the conviction cannot be used as evidence that the offense charged in this case is the fourth DWI offense and thus a felony under the statute. Baldasaar v. Illinois, 446 U.S. 222 (1980); Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).

The only evidence presented by the state to show that Peters was represented by counsel at his third offense trial was a copy of a letter from a law student to the judge who presided at that trial. The letter shows Peters to have been represented by the student. The clerk of the Farmington City Court has entered a certification on the copy saying it is “true and correct,” but she does not say that the original is a record of the court.

In a letter to the deputy prosecutor who tried the case before us now, the Farmington City Court clerk stated that the law student who signed the letter to the judge represented Peters under the supervision of a named, licensed attorney pursuant to our student practice rule. This letter bears no certification as being a public record.

In response to the appellant’s contention that these letters are hearsay, the state cites Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985), as authority that a certified copy of a document showing representation by counsel is sufficient proof. In that case we held that a photocopy of a docket sheet certified by a court clerk as being “an accurate record of the proceedings” and showing waiver of the right to counsel was sufficient.

In this case the only evidence that Peters was represented by an attorney was the letter from the clerk to the deputy prosecutor. This letter was not certified by the court clerk and it is not even part of the court record.

We hold this letter is insufficient evidence that Peters was assisted by counsel at the trial of his third DWI conviction. Since there is not sufficient evidence of representation, Peters’ third conviction cannot be used as evidence that the conviction before us now is his fourth.

2. Number of Prior Convictions

The trial court ordered a bifurcated trial. The jury first heard evidence to determine whether the appellant was driving while intoxicated on the occasion alleged. After the jury returned a guilty verdict, the judge heard evidence in chambers to determine the number of prior convictions, and then he instructed the jury that the range of sentences should be based on three prior convictions. The trial court based this procedure on Ark. Stat. Ann. § 41-1005 (Supp. 1983), as the Omnibus DWI Act of 1983 does not provide the procedure for bifurcation. Section 41-1005 provides that the jury will first hear evidence as to the guilt or innocence of the defendant. If the jury finds the defendant guilty, the trial court will hear evidence of the defendant’s previous convictions and determine the number of prior convictions. The trial court will then instruct the jury as to the number of previous convictions. The jury will retire again to determine a sentence.

Section 41-1005 is inapplicable to the Omnibus DWI Act because it applies only to the determination of habitual offender status pursuant to Ark. Stat. Ann. § 41-1001 (Supp. 1983). That statute provides extended terms of imprisonment for those who have committed more than one but less than four felonies. Appellant has three previous convictions, but they are all misdemeanors under the DWI Act. Under the sentencing enhancement statutes followed by the judge, the previously committed felonies do not constitute an element of the offense charged.

Appellant contends that the existence of three prior convictions constitutes an element of DWI, fourth offense, and thus the trial court deprived him of his right to have the jury determine a material element of the offense charged. We agree. The fact of three prior convictions is an element of the felony DWI fourth offense as defined by Ark. Stat. Ann. § 75-2504(3) (Supp. 1983). In State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984), we allowed the state to amend an information to charge DWI, first offense, instead of DWI, fourth offense. We said the state could amend to conform to the proof when the amendment does not change the nature or degree of the offense. In that case the amendment was obviously not prejudicial to the accused. We would not have permitted an amendment of an information alleging DWI, first offense, to one alleging DWI, fourth offense, because the additional element of three previous convictions, making the offense charged a felony, would constitute a matter on which the accused would be required to prepare for trial.

While the felony sentencing enhancement statutes do not apply, we agree the trial should be bifurcated. The jury must first hear evidence of guilt or innocence. If the defendant is found guilty of the instance of DWI alleged, the jury will then hear evidence of previous convictions. The trial judge will still determine whether the accused was represented by, or entered a valid waiver of, counsel in the previous convictions alleged and will exclude evidence of any conviction not meeting the counsel requirement. This procedure protects the defendant from prejudice by preventing the jury from considering the three prior convictions during their initial determination of guilt or innocence. Heard v. State, 272 Ark. 140, 612 S.W.2d 312 (1981).

Reversed.

Dudley and Smith, JJ., not participating.


author: Per Curiam.

text:
    Donald WATTS v. Charles E. REYNOLDS and Helen I. REYNOLDS
    692 S.W.2d 247
    Supreme Court of Arkansas
    Opinion delivered July 8, 1985

      Orvin W. Foster, for appellant.

      Joe H. Hardegree, for appellees.
   Per Curiam.

A chancery decree was entered in this case on August 2,1984. A motion for new trial was filed August 8,1984. An order overruling the new trial motion was filed January 25, 1985. Notice of appeal was filed February 5, 1985. On May 29, 1985, the chancellor ordered his docket “completed and supplemented” to show he took the new trial motion under advisement on August 9, 1984.

Ark. R. App. P. 4(c) permits the time for filing a notice of appeal to be extended by filing a new trial motion. The thirty-day period for filing a notice of appeal runs from the expiration of thirty days after the motion is filed unless the motion is set for hearing or taken under advisement within thirty days after it is filed.

To comply with the requirement of Ark. R. App. P. 4(c), a written record of setting a hearing or taking the motion under advisement must have been made within thirty days of the filing of the new trial motion. See our per curiam order of this date in the case of Brittenum & Assoc. v. Mayall. This case is distinguishable from Brittenum & Assoc. v. Mayall because there the reconstruction of the record shows a written record of the setting of a hearing date did occur within the thirty-day period.

Motion for rule on the clerk denied.

Dudley, J., not participating.


author: Per Curiam. John I. Purtle, Justice,

text:
    BRITTENUM & ASSOCIATES, INC. v. T. Lynn MAYALL
    692 S.W.2d 248
    Supreme Court of Arkansas
    Opinion delivered July 8, 1985

      Wright, Lindsey & Jennings, by: Robert S. Lindsey, for appellant.

      Davidson, Horne & Hollingsworth, by: Robert J. Fuller and Thomas Stone, for appellee.
   Per Curiam.

The appellant attempted, but was denied permission, to file the record with this court on May 17,1985. A motion for rule on the clerk was denied June 17, 1985. The appellant has asked that we reconsider our denial of the motion.

The pertinent facts are:

1. On October 26,1984, a judgment was entered in favor of the appellee.
2. On November 2, 1984, the appellant moved for judgment n.o.v. or for a new trial.
3. On December 12, 1984, an order was entered reciting that a hearing was held December 3, 1984, and that the appellant’s motion for judgment n.o.v. or a new trial was denied.
4. On December 17, 1984, a .notice of appeal was filed.

At this point nothing in writing appeared in the trial court’s record of the case before December 12, showing that a hearing had occurred, a hearing had been set, or that the motion had been taken under advisement. The appellant argues that at the instance of the trial judge letters were sent among counsel reciting that a hearing had been set for December 3, 1984.

In Smith v. Boone, 284 Ark. 183, 680 S.W.2d 709 (1984), we addressed the problem presented when the record does not show either that a hearing was set or that the case was taken under advisement within thirty days of the new trial motion as required by Ark. R. App. P. 4(c). We said there must be “a docket entry, order, or other written, dated record . . . made at this point,” quoting St. Louis SW Ry. Co. v. Farrell, 241 Ark. 707, 409 S.W.2d 341 (1966).

The appellant contends that there is a written record of the setting of the hearing for December 3,1984, which is in the form of a letter dated November 29,1984, to the court confirming the December 3, 1984, hearing date. That letter did not become a part of the record until it was added by order filed May 9,1985.

The fact that a hearing was held December 3,1984, did not in any manner appear on the record until the court’s order of December 12, 1984; however, the appellee’s response to this motion does not dispute the allegation that the hearing was held on December 3, 1984.

In St. Louis SW Ry. Co. v. Farrell, supra, the “written record” of a hearing having been set was a letter from the court to counsel which was dated within the thirty-day period.. From the opinion in that case it cannot be ascertained when or if the letter became a part of the official file or “record” in the case.

The problems we are trying to avoid in all these cases are those caused by after-the-fact reconstructions of the record for the purpose of showing timely notice of appeal.

We will permit the rule on the clerk to issue in this case, because of the undisputed statement that a timely hearing was held, and because heretofore we have not stated that a written record of setting a hearing date must be filed and made a part of the official record of the trial court. We want it to be clear for the future that if parties plan to base their arguments on timeliness of the notice of appeal upon a “written record” that a hearing has been set or held, the “written record,” a transcript of the hearing or other record of its having been held must be filed and made an official record of the court within thirty days from the making of the motion for judgment n.o.v. or for new trial.

Facts continued:

5. On February 12, 1985, the appellant moved for a new trial on the basis of newly discovered evidence pursuant to Ark. R. Civ. P. 60(c).
6. A hearing was held on March 8,1985, on the Rule 60(c) motion.
7. On May 9,1985, the Rule 60(c) motion was denied, and a notice of appeal was filed on the same day.

The notice of appeal of denial of the Rule 60(c) motion was timely. Ark. R. App. P. 4(a). In contrast with the first new trial motion, discussed above, the dated transcript of the hearing on the later motion became part of the record, and there was no need to reconstruct it by a later recitation or order.

We grant the rule on the clerk and recall our earlier mandate to the trial court. The transcript may be lodged with this court, and both appeals may be pursued by the appellant.

Robert Dudley, Justice, not participating.

Purtle, J., concurring in part, dissenting in part.

John I. Purtle, Justice,

concurring and dissenting. I cannot distinguish the facts in this case from those in Watts v. Reynolds et ux., handed down by per curiam on this date. Either Brittenum or Watts is wrong. Our final sentence in Smith v. Boone, 284 Ark. 183, 680 S.W.2d 709 (1984), handed down December 10, 1984, was: “In the absence of a written record, the time for filing a notice of appeal expired ten days after the motion for new trial was deemed to have been finally disposed of on November5.” [Emphasis in original.] I think we were too strict in our interpretation of the rules in Smith but it is the law or was up until this per curiam was rendered. Now we do not know when a party will be allowed to proceed in the absence of the “filed written record” requirement. Some will and some will not.

In each case being decided today the presiding judge stated in writing, after the ten days had expired, that action had actually been taken during the time the motion was pending but had simply not been entered on the docket or filed with the clerk. The period of inaction according to the record in Watts was much longer. The evidence in Brittenum was greater. There is really no doubt in my mind that action was taken in both cases before time had expired. Each court, or the attorneys, simply neglected to enter the action into the record.

In the present case there is no reason not to allow the appeal from the adverse ruling on the ARCP Rule 60 (c) motion and I do not think we even considered such in our refusal to allow the rule on the clerk.

So far as I am concerned we should adopt the procedure of allowing proof to be established by clear and convincing evidence that the requirements of Ark. R. App. P. 4 (c) have been met when for some reason the record fails to reflect the true facts.


author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice,

text:
    Gerald WILSON v. STATE of Arkansas
    CR 85-112
    692 S.W.2d 620
    Supreme Court of Arkansas
    Opinion delivered July 15, 1985

      Henry & Mooney, by: John R. Henry, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant was convicted in Harrisburg Municipal Court of driving while intoxicated, first offense, pursuant to Ark. Stat. Ann. §§ 75-2501 - 75-2533 (Supp. 1983). He appealed to circuit court where the case was heard de novo. Immediately prior to trial, the prosecutor was allowed, over appellant’s objection, to amend the charge by upgrading the offense to DWI, second offense. The appellant was again convicted. At issue in this case is the propriety of the court’s action in allowing the prosecutor to amend the information. Our jurisdiction is pursuant to Sup. Ct. R. 29( 1) (c) and (4) (b) as this case was certified to us by the Court of Appeals.

We have held that “[p] roper amendments of informations have been permitted under Ark. Stat. Ann. § 43-1024 (Repl. 1977) after the jury has been sworn but before the case has been submitted to it, so long as the amendment does not change the nature or degree of the crime charged, if the accused is not surprised,” Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981), quoting Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). In Crafton this court found that an amendment to include a charge against the defendant as an habitual offender, did not change either the nature or the degree of the crime.

Similarly, in State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984), we held the trial court erred by refusing to allow the state to amend an information from DWI, fourth offense, to DWI, first offense. We stated:

The state is entitled to amend an information to conform to the proof when the amendment does not change the nature or degree of the alleged offense . . . Such authorization simplifies procedure and eliminates some technical defenses by which an accused might escape punishment. . . The change sought by the state would not have changed the nature or degree of the offense but would merely have authorized a less severe penalty, (citations omitted).

Here also, the change from first to second offense, DWI, did not change the nature or degree of the offense, but rather authorized a more severe penalty.

It has long been the rule that on appeal to circuit court, a defendant can only be tried for the same offense for which he was tried in municipal court, Marre v. State, 36 Ark. 222 (1880). Here, the appellant is being charged with the same criminal offense: operating or being in actual physical control of a motor vehicle while intoxicated. By alleging an additional previous offense of the same criminal act, the state is merely subjecting the appellant to a different range of punishment.

As stated in Craftoh, the amendment is permitted under these circumstances as long as the accused is not surprised. Although the prosecutor did not amend the information until the day of trial, the appellant did not claim surprise, ask the trial judge for a continuance or tender proof of prejudice on appeal. Since the offense charged remains the same, appellant was sufficiently put on notice of the nature of the charge against him. See Castle v. State, 229 Ark. 478, 316 S.W.2d 701 (1958).

By this opinion we are not holding that the prosecutor is permitted under any circumstances to amend a DWI charge. We recently held in Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985), that the trial court erred when it made a decision out of the hearing of the jury as to the validity of prior convictions on a charge of DWI, fourth offense, a felony. In Peters, we discussed Brown, supra, in which the state was allowed to amend the information from fourth offense to first offense and stated:

We would not have permitted an amendment of an information alleging DWI, first offense, to one alleging DWI, fourth offense, because the additional element of three previous convictions, making the offense charged a felony, would constitute a matter on which the accused would be required to prepare for trial.

Here, the elements of the misdemeanor offense, as amended, remained the same. The appellant therefore was not prejudiced by the state’s action.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority opinion is correct on one point and that is it has long been the rule that a defendant on appeal can only be tried in circuit court for the same offense for which he was tried in municipal court. The appellant here was tried and convicted in the municipal court for first offense DWI. The majority promptly disregards its statement by allowing the appellant to be tried in circuit court, on appeal from the municipal court, for second offense DWI when he had been tried and convicted only of first offense DWI in the municipal court. If there is no difference in first or second offense why does the statute clearly make them two separate and distinct offenses?

The cases cited in support of amending the information at any time up until the case is submitted to the jury relate to informations filed in circuit court. In such cases there has been no other trial. Perhaps the charge could have been amended in the municipal court to a second offense DWI but to do so on appeal amounts to double jeopardy. In State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984), the charge was amended down, not up as it was here.

In the present case the appellant was tried on the facts presented to a court of competent jurisdiction. He was tried on the same facts in the circuit court. He has been twice placed in jeopardy, for the same offense in violation of the State and Federal Constitutions.

I would reverse and remand for a first offense DWI appeal in the circuit court.


author: Georgia Elrod, Special Chief Justice. John I. Purtle, Justice,

text:
    Bob HESS v. Mark TREECE
    84-274
    693 S.W.2d 792
    Supreme Court of Arkansas
    Opinion delivered July 15, 1985
    [Rehearing denied September 9, 1985.]

      Perroni & Rauls, P.A., by: Samuel A. Perroni, for appellant.

      Dodds, Kidd, Ryan & Moore, by: Judson C. Kidd, for appellee.

       Purtle, J., not participating.

   Georgia Elrod, Special Chief Justice.

This case involves the tort of outrage. Mark Treece, a Little Rock police officer, sued Bob Hess, a building contractor and Little Rock City Director, claiming that Hess had, over a period of some two years, engaged in intentional and outrageous conduct directed toward Treece, which resulted in the infliction of severe mental and emotional distress. The jury found for the appellee Treece and awarded $25,000 in compensatory and $50,000 in punitive damages.

Appellant raises fourteen points on appeal. Although several merit discussion, we find none constitutes error and accordingly affirm.

Appellee Mark Treece had been an employee of the Little Rock Police Department since 1973, and, during the period in question, was assigned to traffic services on the motorcycle squad. In late 1980 he met appellant Bob Hess when he dropped off Jayma Stephens, Hess’ girlfriend, at Hess’ house and some unfriendly words were exchanged between the parties. Around the time of this encounter Jayma Stephens began keeping company with Gary Wheat, Treece’s best friend, who was also a police officer, and these relationships appear to have been the springboard for Hess’ animosity toward Treece. Treece testified that in April 1981 he saw Hess following him. In Spring 1982 Treece informed by one of his superior officers, Capt. Timothy Daley, that Hess had called the Police Department to complain about Treece being at his apartment when he was supposed to be at work. During this conversation, according to Daley, Hess stated that he would have Treece’s job at any cost, and that he was conducting surveillance of Treece and other officers. An internal police investigation of this complaint found Treece innocent of the charges.

In April 1982 Treece learned that Hess had lodged another complaint against him, this time for working an off-duty job at Pulaski Academy when he should have been on duty. Treece had been given permission to work the Pulaski Academy job, but not while he was on duty for the Police Department. Treece again underwent an internal investigation and was suspended for three days, although it appears this was largely because he made false statements to the investigators. Treece also testified that he was called upon by his superiors frequently during the two years in question to account for his time, and that it was hard for him to do his job properly when he felt constantly scrutinized.

In April 1982 Treece talked to Mary Ann Haston, who was Hess’ occasional bookkeeper. She told Treece that Hess had asked her to watch and report on Treece’s movements.

A number of police officers testified during the trial. Captain Daley récounted the hour-long telephone conversation he had with Hess, stating that it was apparent to him that Hess had a grudge against Treece. In his personal investigations of Treece, Daley never found any wrongdoing. Lt. Albert Benafield stated that he was called upon frequently, “sometimes twice a week,” to investigate Treece’s conduct and that “it caused a lot of problems in my department.” Lt. C. R. Watters stated that he investigated Treece on several occasions in connection with his Pulaski Academy job and never found any wrongdoing. E. J. Etheridge testified that he had been directed to conduct numerous investigations of Treece, sometimes on a daily or weekly basis. Jess Hale, Assistant Chief of Police in 1982, and Mahlon Martin, then City Manager, were both personally contacted by Hess concerning his complaints against Treece.

Mary Ann Haston, who lived in the same apartment complex as Treece, testified that Hess paid her to report on Treece’s whereabouts; that he frequently called the Police Department from her apartment to complain about Treece, and that he stated that he would spend every dime he ever made to get Treece fired.

On the issue of damages, Treece testified that the frequency of the complaints and resultant investigations interfered with his ability to do his job; that he became concerned for the safety of his family and instituted security measures; and that he changed his lifestyle because of his fear. Several police officers commented that Treece appeared distraught, nervous and frightened during this period of time and that he had asked for help.

Hess admitted that he had filed complaints against Treece but denied the alleged frequency. He denied having paid Mary Ann Haston to watch Treece and disputed Capt. Daley’s recollection of the phone conversation. Hess admitted that he had contacted Gene Nail, an investigative reporter for the Arkansas Democrat, to look into the situation at Pulaski Academy and admitted he had “bad feelings” toward Treece.

Appellant contends that there was no substantial evidence to support the jury finding of intentional infliction of mental distress. On appeal we must view the evidence in the light most favorable to the appellee, Mark Treece. B. J. McAdams, Inc. v. Bess Refrigeration, Inc., 265 Ark. 519, 579 S.W.2d 608 (1979).

This Court first defined the tort of extreme outrage in M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980):

. . . [0]ne who by extreme and outrageous conduct willfully or wantonly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress.
The emotional distress for which damages may be sought must be so severe that no reasonable person could be expected to endure it.
By extreme and outrageous conduct, we mean conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. See Restatement of the Law, Torts 2d 72, §46, Comment d.

In M.B.M. Co. v. Counce, supra, an employee who was suspected of stealing was told she was being laid off because there were too many employees. She was later required to take a polygraph test and, although she passed, her last paycheck reflected a deduction for the missing money. Her employer then caused her to be denied unemployment benefits. We held that the trial court’s granting of a summary judgment in favor of the employer was error and that a fact question was made.

We next examined the tort of outrage in Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982), again on appeal of a summary judgment in favor of the employer, and here found that the conduct complained of did not rise to the level of outrageous. In Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984), also involving alleged outrageous conduct in the employer/ employee context, we found that there was substantial evidence to support a finding of outrage, but we reversed on other grounds. In this case, the employee was subjected to an intense and lengthy interrogation on his handling of the store’s operations. His employer refused to permit him to take his medication during the interrogation, even though he knew of the employee’s lack of emotional stamina and the fact that he was on regular medication for this problem.

We also found outrageous conduct in Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984). The owner of a cemetery, in constructing a new crypt, moved heavy equipment across the graves of plaintiffs relatives which caused exposure of their vaults. The damage could have been avoided by the use of an alternate access route, and we found that these acts of careless and callous disregard fit within the definition of outrage.

Although we have emphasized that the recognition of this tort is not intended to “open the doors of the courts to every slight insult or indignity one must endure in life,” Tandy Corp. v. Bone, supra, we find that the facts in the case before us meet the requirements we have set down.

The fact situations in the cases cited above all involved either acts or conduct of limited duration in time. Bob Hess’ actions directed against Mark Treece continued over a period of two years or more. He made not one complaint, but many; he not only followed Treece himself but had others follow him; he communicated his threats to “get Treece fired” via more than one source. Except for the one incident when Treece was suspended for three days, primarily for giving a false statement to the investigators and not for working another job while on duty, no misconduct was found. Nor can we agree with Hess’ contention that his actions were not the proximate cause of any emotional distress suffered by Treece. There was ample evidence to show that Hess was the moving force behind the repeated police investigations of Treece, and the fact that there was little face-to-face contact between the two men does not prevent a finding of proximate cause.

Hess argues that as a private citizen he was privileged to complain to authorities about the conduct of public officials, and that as a member of the Board of Directors he was entitled to a qualified immunity for discretionary functions. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727 (1982). The claim of immunity is, however, subject to the requirement of good faith, and the question of good faith is one for the jury. McMillion v. Armstrong, 238 Ark. 115, 119, 378 S.W.2d 670, 673 (1964). In fact, the jury could have found that Hess’ conduct became even more outrageous after he took office as City Director in January of 1983, thus acquiring a position of greater influence, if not actual authority, over city employees. The fact that Mark Treece happened to be a city employee should not deprive him of protection from outrageous conduct; nor should the fact that Bob Hess happened to be a City Director relieve him of responsibility for his actions.

We therefore find substantial evidence to support the verdict of outrageous conduct and also to support the award of damages, both compensatory and punitive.

Appellant’s next argument for reversal is that the trial court failed to instruct the jury properly on the issue of punitive damages. The court gave AMI 2217, and we have held that this instruction is not proper in a case of intentional tort. Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979); Tandy Corp. v. Bone, supra.

Before appellant can raise this issue on appeal, however, he must have made a proper, specific objection to the instruction in the trial court. A.R.C.P. Rule 51. Appellant’s objection to the instruction was:

I have the same objection on that instruction, Your Honor. I don’t believe that the evidence supports giving that instruction. I think the plaintiffs counsel is confusing motive with malice, and a person’s motive for making a complaint is irrelevant and I don’t think supports a punitive damage instruction. So I feel that the evidence is insufficient.

Appellant did not submit a proposed instruction on punitive damages, and his objection was general, not specific. An objection which merely complains that a jury instruction is an incorrect declaration of the law is a general objection, reserving no point for review. AAA TV & Stereo Rentals, Inc. v. Crawley, 284 Ark. 83, 679 S.W.2d 190 (1984); CBM of Central Arkansas v. Bemel, 274 Ark. 223, 623 S.W.2d 518 (1981); Chandler v. Kirkpatrick, 270 Ark. 74, 603 S.W.2d 406 (1980).

Appellant contends that the trial court erred in admitting certain police reports into evidence. The trial court admitted under the “business records” exception to the hearsay rule, Unif. R. Evid. 803(6): (1) a report made by Lt. Tim Daley to his superior concerning the telephone conversation he had with Hess in March, 1982; (2) Lt. Benafield’s memo to Lt. Daley responding to a request for investigation on Treece’s schedule; and (3) Sgt. Watters’ memo to Lt. Benafield objecting to the frequency of complaints by Hess. Appellant argues that the reports were inadmissible under Unif. R. Evid. 803(8)(i),(iv) and (v), which prohibit the introduction of investigative reports by police and other law enforcement personnel, factual findings resulting from special investigation of a particular complaint, case or incident, or any matter as to which the source of information or other circumstances indicate lack of trustworthiness. Although these reports may not technically have copie within the business records exception, the trial court has 'substantial latitude under Rule 803(24) to admit evidence which it feels meets the spirit of the rule. In each instance the report was submitted through its author, who was subject to cross examination on its contents. In addition, many of the statements in the Daley memorandum to which appellant objected were admissions, e.g. “He [Hess] further stated that he hates the sight of all police officers. . . .”, and were thus not hearsay under Rule 801(d)(2). We, therefore, cannot say that the trial court erred in admitting this evidence.

Appellant further contends that the trial court erred in admitting certain evidence contrary to the directives of a pretrial order. On April 24,1984, Judge David Bogard entered a pretrial order which provided that: (1) information from plaintiff's tax returns was not to be introduced into evidence at the trial until the court decided preliminarily that a submissible issue of punitive damages had been established, and that (2) the contents of a police investigative file, or the nature of the investigation would not be referred to or offered at trial until relevance had been established to the court’s satisfaction. The police investigative file related to the theft and burning of an automobile in which Bob Hess had an interest. A.R.C.P. Rule 16 provides:

The court shall make an order which recites the action taken at the conference,. . . and the agreements made by the parties as to any of the matters considered . . .; and such order, when entered, controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.

Although the pretrial order was entered by Judge Bogard, the case was tried before Special Circuit Judge Gordon Rather. At trial when appellee’s counsel broached the subject of the income tax returns, appellant’s counsel objected and a conference was held in chambers, the court ruling that sufficient evidence had been produced to submit the question of punitive damages to the jury; hence, the income tax returns were admissible. With regard to the police investigative file, no such file was ever introduced, and the court specifically limited questioning on the issue of the stolen and burned car. Although some confusion might have been eliminated had the same judge handled the case from beginning to end, we cannot say that there was any abuse of discretion by the trial judge in admitting this evidence.

Appellant’s next point involves the trial court’s admission of Mary Ann Haston’s testimony concerning a telephone conversation she had with appellant. She said appellant said that Bob Troutt, a man who was convicted of beating a radio disc jockey in a well-publicized trial, had pulled up on his motorcycle and that he (appellant) was going to have “Treece taken care of’ and “a car set on fire and burned.” Appellant argues this is inadmissible character evidence under Unif. R. Evid. 404, and that it is irrelevant under Rule 403. Rule 404(b) permits the introduction of character evidence to show motive or intent, and Rules 401 and 402 define and permit the introduction of relevant evidence. The trial court’s determination of relevance will not be reversed unless this court finds an abuse of discretion. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). Arkansas Power & Light Co. v. Johnson, 260 Ark. 237, 538 S.W.2d 541 (1976). We find no abuse of discretion.

Appellant next argues the trial court erred in limiting appellant’s cross-examination of the witness Mary Ann Haston concerning felony false pretense convictions which were entered more than ten years prior. At trial appellant asked the witness whether she had ever been convicted of anything, and she responded “no.” He then sought to introduce certified copies of Pulaski County Circuit Court records showing she had been convicted on two counts of felony false pretenses in 1965. He contends that the records were offered not to impeach her character but to contradict her testimony. Unif. R. Evid. 609 provides that evidence of a prior conviction is not admissible if a period of ten years has passed since the date of the conviction or the release of the witness from the confinement imposed for that conviction, whichever is the later date. Rule 609 makes no distinction between impeachment of character and contradiction of testimony, and we therefore conclude the trial court was correct in excluding this evidence.

Appellant cites as error the trial court’s refusal to give his requested instruction on the burden of proof. He contends that a higher burden of proof is required in cases involving the tort of outrage, and offered this instruction:

The party having the burden of proof on a proposition must establish it by clear evidence or proof. “Clear evidence” means evidence which is positive, precise and explicit and which tends directly to establish the proposition. That is, whether the proposition has been proved by a high probability.
“Clear evidence” is not necessarily established by the greater number of witnesses testifying to any fact or state of facts.

Appellant cites Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982) in support of his requested instruction. The trial court refused the instruction and gave instead AMI 202, stating that a preponderance of the evidence is the appropriate standard. Although in Givens v. Hixson, supra, we emphasized the need for “clear-cut proof,” we did not raise the level of proof required beyond a preponderance of the evidence, which has consistently been the required standard in civil cases. McWilliams, et al. v. Neill, 202 Ark. 1087, 155 S.W.2d 344 (1941).

Appellant contends that the trial court erred in failing to grant appellant’s motion for summary judgment on the grounds that appellee failed to attach affidavits or depositions to his response to the motion sufficient to show the existence of a genuine issue of material fact. The exhibits attached to appellant’s motion itself, however, were more than sufficient to show a factual dispute between the parties, and summary judgment would not have been an appropriate disposition of the case. See A.R.C.P. Rule 56(c).

Appellant’s next two points involve a witness who never testified, Lavonia Gray, a man who at the time of trial was serving time at Cummins Prison and who was subpoenaed to the courthouse as a possible witness by plaintiffs counsel while the trial was in progress. Although the trial court refused to permit Gray’s testimony and he was therefore never before the jury, his presence in the courthouse attracted attention from the news media covering the trial and a television newscast described Gray, a convicted arsonist of some notoriety, as a possible witness. Appellant’s motion to the court to poll the jurors to see whether any had seen the news broadcast was denied, and he cites this refusal as error. The record shows that the trial judge repeatedly admonished the jurors not to discuss the trial, read newspaper articles about it, or watch television reports. Appellant submitted no evidence that any of the jurors had seen the broadcast, seen Lavonia Gray in the courthouse, or been improperly influenced in any way. The party raising the issue of improper influence must show that it exists. Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977). At the courthouse, while the trial was in recess, Lavonia Gray gave a sworn statement to appellee’s counsel that he had been contacted by Bob Troutt to “get rid of a car” for him. Appellee then sought to call Gray as a rebuttal witness, but the trial court refused. Subsequent to the conclusion of the trial, Gray recanted his earlier statement, and appellant argues that this admission of perjury by Gray constitutes sufficient newly discovered evidence to warrant a new trial. The trial court denied the motion for a new trial, for the reason that Gray’s testimony was never received into evidence, and his later contradiction, therefore, could have had no effect on the outcome of the trial. We agree.

Appellant also contends that the conduct of appellee’s counsel during the trial was so prejudicial to the rights of appellant that he was denied a fair and impartial trial and that a new trial should be ordered. As the record reflects, both parties were zealously and energetically represented by their respective attorneys. The trial was a lengthy, emotional process for all concerned. We find nothing, however, to show that appellee’s counsel overstepped permissible bounds to the point of unfair prejudice to appellant and uphold the finding of the trial court that grounds for a new trial were not shown.

Affirmed.

George Rose Smith and Purtle, JJ., dissent.

Holt, C.J., not participating.

John I. Purtle, Justice,

dissenting. In my opinion the only outrage to be found in this case is the majority opinion. The present case seems to attempt to embrace the torts of bad faith, interference with a contract, intentional infliction of emotional distress (outrage), negligence, slander, and perhaps libel.

The tort of bad faith had its genesis in automobile liability cases where insurers acted in bad faith in not settling personal injury claims. Although the “bad faith” doctrine may have started in California, we recognized it in Tri-State Insurance Co. v. Busby, 251 Ark. 568, 473 S.W.2d 893 (1971). In Busby we held that an insurance company was liable in excess of its policy limits if it had failed, due to “fraud, bad faith, or negligence,” to settle within the policy limits. To the same effect see Members Mutual Insurance Co. v. Blissett, 254 Ark. 211, 492 S.W.2d 429 (1973). The tort of bad faith in refusing to settle with an insured pursuant to the terms of a fire insurance policy was approved in the case of Aetna Casualty & Surety v. Broadway Arms, 281 Ark. 128, 664 S.W.2d 463 (1983).

So far as I can determine, the tort of intentional infliction of emotional distress was first recognized in Arkansas in the case of M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). In M.B.M. we stated: “[W]e. . . do now recognize that one who by extreme and outrageous conduct wilfully or wantonly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress. ... By extreme and outrageous conduct, we mean conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” There was no award of damages in M.B.M. because the case came to us on appeal from a summary judgment dismissing the cause of action. We reversed and remanded. We did approve an award of actual and punitive damages for the tort of outrage in Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984). The outrageous act in Cannon was the defendants’ use of part of a burial plot as a road during construction, thereby exposing and driving upon the vaults of plaintiffs’ deceased relatives. Repeated traffic across the burial plot was indeed something beyond the bounds of decency. However, in the earlier case of Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982) we upheld a summary judgment against the plaintiff who had alleged in his complaint that he had been the victim of an intentional infliction of emotional distress by having his employment terminated publicly, abruptly, and without good reason. In Givens we again stated the tort of outrage could be established where the conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

If we take every allegation of the complaint as fully proven at the trial, there still are no grounds to support an award for the tort of bad faith or of outrage. Nothing alleged or proved comes anywhere close to conduct which could be described as outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. The only actions taken by the appellant were in following appellee, having him followed or watched, and reporting that the appellee was working for a private corporation during the time he was supposed to be on duty for the police department. There was also testimony that appellant tried to have appellee discharged from the police department. The only disciplinary action taken against the appellee was the result of appellee’s failure to tell the truth about one of the matters which was investigated as a result of appellant’s complaint. There was no proof that any of appellant’s complaints about appellee was untrue.

It is not outrageous as far as I am concerned for one person to try to keep up with what another person is doing. If a policeman or other investigator had done the same things appellant did, no one would have had a second thought about it. Apparently a jealous spouse or sweetheart cannot check up on the other without it becoming an outrage. Lawyers may be handicapped in investigating certain claims as a result of the majority opinion. Appellant may well be guilty of interfering with a contract of employment or slander but he is not guilty of outrage as we have previously defined the tort. Appellant may be guilty of invading the privacy of the appellee or several other recognized torts but his actions were not, in my opinion, utterly intolerable in a civilized society. The mischief done by the majority opinion far outweighs the good it will do.

Citizens may now be afraid to complain of conduct on the part of public officials or employees. Apparently they will now be obliged to keep their mouths shut about what they perceive as misconduct on the part of public employees or officials or face being sued for outrageous conduct.

We considered the tort of outrage in Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984) where this same instruction (AMI 2217) was given. We reversed because the instruction should not have been given. I believe the objection by appellant’s counsel was proper and specific. Apparently he failed to utter magic words of some sort. If giving the instruction was reversible error in Tandy it should be reversible error here.

Reports of the police department investigations should not have been allowed. The introduction of these reports flies in the face of Unif. R. Evid. 803 (8) (i), (iv),and (v). I am not suggesting that these investigative reports were fabrications but they did result from special investigations by the police department and clearly came within the prohibitions of Unif. R. Evid. 803.

It is interesting to note in the report of Captain Daley that he characterized appellant as reflecting “a personality disorder of paranoid schizophrenia. This man demonstrated marked perse-cutory trends. . . .” Later he testified that he had only spoken with appellant once. Captain Daley also stated: “In all fairness to Mr. Hess and the parties involved, you could understand how he could be upset and distraught over a situation if he felt he was making complaints and the complaints were not being addressed.” This witness for the appellee did not view appellant’s conduct as outrageous although he classified appellant as being paranoid and as having hallucinations. There is no basis for Captain Daley making these diagnoses. Even if this report was not prohibited by the rules its unfair prejudice far outweighed any probative value it might have had. Not a single witness nor collection of witnesses described conduct which is repugnant to a civilized society.

Appellee’s testimony was that the frequent investigations caused him concern about his job. He stated appellant followed him in April, 1981, and that about a year later appellant informed appellee’s supervisor that appellee was at an apartment when he was supposed to be at work. In April, 1982, appellant reported appellee was working at a private job during his normal duty hours. The ensuing investigation at least proved appellant’s complaint was not unfounded. About the only other act complained of was that appellant paid others to report on appellee’s conduct. Appellee’s expressed fears for the safety of his family seem completely unfounded. There were never even any allegations of violence or threats to the appellee’s family. There is nothing to prove that appellant even caused all the investigations to be initiated.

Even though there clearly was no proof of the tort of outrage I would send the case back for a new trial. There were allegations in the complaint which would support an award of damages on other grounds.