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

text:
    Roger WILLIAMSON v. STATE of Arkansas
    644 S.W.2d 600
    Supreme Court of Arkansas
    Opinion delivered January 24, 1983

      Beth Gladden Coulson and Herby Branscum, Jr., for appellant.

      Tom Tatum, Pros. Atty., 15th Judicial District, for appellee.
   Per Curiam.

Appellant’s petition for reconsideration for Rule on Clerk to lodge transcript is denied.

Holt, Purtle and Hays, JJ., dissent.

John I. Purtle, Justice,

dissenting. I believe we made a mistake in granting the motion to dismiss this appeal. The order of dismissal was entered on December 13,1982 without written opinion.

Appellant was charged and found guilty of 102 counts of theft of property. He was sentenced on August 27, 1981, with the judgment of conviction being filed on September 23, 1981. Appellant filed a timely notice of appeal on October 2, 1981. The trial attorney, Robert E. Irwin, was relieved as appellant’s attorney and Charles Dunn of Tulsa, Oklahoma, was substituted. An order by the trial court was entered on November 25, 1981 extending the time to file the transcript until January 22, 1982. On January 21, 1982 the court signed an order which was entered of record on January 25, 1982, extending the time for lodging the transcript until March 22, 1982. The full costs of the clerk and reporter, in the sum of $1,196.00, was paid on February 22, 1982. The record was tendered on March 19, 1982 and rejected by the clerk of this court as being untimely. So far as I am able to determine the record has been here in our court since it was tendered.

The appellant received a copy of the motion to dismiss on November 11, 1982. It was then that he learned the transcript had not been accepted by this court and that his attorney, Charles Dunn, Sr., was deceased. The motion for a rule on the clerk was filed a few days later, on November 18, 1982.1 feel the death of appellant’s attorney is just cause for allowing a belated appeal. I also am not in agreement that the record was untimely tendered. Therefore, I would reconsider the order of dismissal and allow the appeal. Also, I would allow the motion to substitute attorneys for the appellant. The right to appeal a criminal conviction should be given every consideration and appellant in this case should not be placed at a disadvantage for actions which were clearly beyond his control, especially where, as existed here, a diligent effort was made to preserve appellant’s right to appeal.

I am authorized to say that Holt and Hays, JJ., join in this dissent.


source: Caselaw Access Project

author: Richard B. Adkisson, Chief Justice.

license: Public Domain

text:
    Bobby Lynn HILTON v. STATE of Arkansas
    CR 82-139
    644 S.W.2d 932
    Supreme Court of Arkansas
    Opinion delivered January 31, 1983

      John W. Achor of Haskins ir Wilson, for appellant.

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

After a trial by jury, appellant, Bobby Lynn Hilton, was convicted of aggravated robbery and sentenced as a habitual offender to fifty years in the Arkansas Department of Correction. On appeal, we affirm.

At approximately 10:00 p.m. on March 25, 1979, appellant walked into a 7-11 store on 65th Street in Little Rock. He pulled out a gun and told the clerk to give him all the money in the cash register, but before she could do so two cars pulled up at the gas pumps. He hid his gun while she waited on the two customers; after they left he again demanded all the money in the cash register. She gave it to him and he left. He was in the store a total time of about ten minutes.

The clerk described appellant to the police as being tall and slim with dirty blonde hair and a large cobra snake tattooed on his left forearm. At trial both she and a Little Rock police officer testified that she was later able to pick him out of a lineup at the Little Rock Police Department.

Appellant argues that the trial court erred in allowing both the police officer and the clerk to testify as to her identification of appellant at the lineup, particularly since the officer testified before the clerk did. Appellant likens the situation to that of an attempt to bolster testimony by a prior consistent statement and alleges that his attorney’s trial strategy was hurt by the fact that the officer testified first.

These contentions were recently considered and rejected in Martin v. State, 272 Ark. 376, 614 S.W.2d 512 (1981). In that case we held that under Rule 801 (d) (1) (iii), Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979) a police officer could properly testify as to the existence and circumstances of an extraj udicial identification by witnesses if there is no defect in the identification procedure used, and if the person making the extrajudicial identification is present at trial and subject to cross-examination, recall, or is subject to being called as a hostile witness by the defense. Here, not only was the clerk present at trial, but she also testified and was cross-examined by the defense as to the extrajudicial identification.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    John Herbert KELLENSWORTH, Jr. v. STATE of Arkansas
    CR 82-109
    644 S.W.2d 933
    Supreme Court of Arkansas
    Opinion delivered January 31, 1983

      Beth Gladden Coulson and L. Gene Worsham, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

On December 26, 1978, a man broke into the home of the prosecutrix, threatened her with a knife, choked her, raped her and stole some of her jewelry. During the long ordeal the intruder wore a toboggan cap pulled down over his face and, in addition, blindfolded the prosecutrix. The police subsequently conducted both a visual and a voice out-of-court lineup. Appellant was charged with the crimes and, at trial, testimony of the lineup procedures was allowed into evidence. Appellant was found guilty and was sentenced to two consecutive terms of life imprisonment plus a twenty year consecutive sentence to be served concurrently with a five year sentence. We find no merit in any of the five points argued on appeal and we affirm the convictions. Jurisdiction is in this Court because of the length of the sentences. Rule 29 (1) (b).

Fourteen months after the commission of the crimes the police conducted the lineup procedures. The visual lineup was held in a room designed especially for that purpose. The room has a one-way glass which allows the observer to see into the room but those in the lineup are unable to see the observer. The participants are lined up and given numbers. The observer is then asked if he or she can visually identify any of the persons in the lineup. Here, the visual lineup consisted of six men. The prosecutrix was unable to state that any one of the six was, without question, the person who committed the crimes since she had not seen the face of her attacker. However, she did single out appellant as having the same physical characteristics as the intruder.

The six males in the visual lineup were then rearranged for a voice lineup. In this procedure, the prosecutrix stood on one side of a door and could not observe the same six men who were in the lineup on the other side of the door. Each one came to the door and read phrases which the assailant had uttered during the commission of the crimes. When the prosecutrix heard the appellant’s voice, her hands flew to her face and she began sobbing. She unequivocally identified appellant’s voice as the voice of her assailant. The men in the lineup were rearranged in order and the same type of procedure was had. Again the prosecutrix unequivocally identified the appellant as her attacker.

Appellant sought to suppress both lineup identification procedures by arguing that he was denied counsel during the lineups and that they were conducted in an unduly suggestive manner. Two suppression hearings were held. The trial court at first ruled that the visual identification should be suppressed but that the voice identification should be allowed into evidence. As the jury selection commenced the State orally moved for the court to reexamine the ruling. The court then carefully examined a transcript of the suppression hearings and studied our opinion in Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982). After the jury was selected, but before opening statements, the trial court reversed the prior ruling and held that neither lineup should be suppressed. The appellant then moved for a continuance but the motion was denied.

At the suppression hearing the prosecutrix testified that, even though the blindfold greatly limited her vision, she could see downward from underneath the blindfold and could see the white color of her attacker’s skin. Her testimony was that during the rape she felt his fully dressed upper body and discovered that he had a slight build of body and slender shoulders. In addition she found no physical deformities. She testified that, by standing next to him and measuring his height with hers, he was about five feet five inches tall. She stated that she had smelled the odor of tobacco on his breath and had listened to his voice over the full hour. She additionally testified that she inferred that his age was in the late twenties.

With regard to the voice identification the prosecutrix testified that the intruder talked constantly during the hour long ordeal. He spoke in two different ways, a domineering voice when trying to control her and another voice when answering her questions. She described it as an “Arkansas” voice. She had a clear memory of the voice and spontaneously recognized it when she heard appellant speak.

Appellant contends that the trial court committed reversible error in admitting evidence of the lineup identification procedures. The trial court was correct. In Harrison v. State, 276 Ark. 469, 637 S.W.2d 549 (1982), we quoted from James ir Elliott v. State, 270 Ark. 596, 605 S.W.2d 448 (1978) as follows:

It is the likelihood of misidentification that taints the out of court identification process. In determining whether an in court identification is tainted by pretrial occurrences, we consider the totality of the circumstances. In doing so, we consider the opportunity of the identifying witness to observe the accused at the time of the criminal act; the lapse of time between the occurrences and the identification; any inconsistencies of the description given by the witness; whether there was prior misidentification; the facts surrounding the identification; and all matters relating to the identification process. Mayes v. State, 264 Ark. 283, 571 S.W.2d 420 (1978). We have stated reliability is the linchpin in determining the admissibility of identification testimony. In the determination of the admissibility we consider the totality of the circumstances. Lindsey ir Jackson v. State, 264 Ark. 430, 572 S.W.2d 145 (1978).

Here, the prosecutrix was able to clearly hear, partially view and sketchily feel her attacker over the period of an hour. While the lineups were held fourteen months after the crimes, her voice identification was certain and undoubting. Immediately after the crimes the prosecutrix accurately described the criminal to the first arriving police officer as being “a white male in his late twenties, being five feet five inches tall, having a light build, wearing a dark mask, a dark jacket, dark glasses and slacks.” Thus, the description given immediately after the crimes was consistent with the lineup identification. Her degree of attention was impressive. She made no misidentification. The police made no spoken suggestion about people in the lineup. Appellant called an expert witness to testify that the disparity in the ages of appellant and the other participants in the voice lineup would constitute an impermissive suggestiveness. However the witness then admitted that he had not heard the voices of the men in the lineup and that some young men have deeper voices than do some older men. Thus, the disparity in ages was of questionable significance. The trial judge held the identification evidence admissible. We do not reverse a trial judge’s ruling on the admissibility of identification evidence unless it is clearly erroneous as it is a ruling on a mixed question of law and fact. Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982). We cannot say the trial judge was clearly in error in this case. On the totality of the circumstances the lineups were sufficiently reliable to withstand examination under the Due Process clause. There is no substantial likelihood of irreparable misidentification.

Appellant argues that the visual lineup was admitted into evidence upon an incomplete identification and the vocal lineup was suggestive. However, after reliability is established, those arguments go to the weight to be given the evidence, not to an exclusionary rule. “The admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability.” Manson v. Brathwaite, 432 U.S. 98 (1977), citing Neil v. Biggers, 409 U.S. 188 (1972). Four years later, the Supreme Court reinforced the concept by stating:

Thus the Court’s opinion in Manson v. Brathwaite approvingly quoted Judge Leventhal’s statement that,
“‘[w]hile identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart — the ‘integrity’ — of the adversary process.
" ‘Counsel can both cross-examine the identification witness and argue in summation as to factors causing doubts as to the accuracy of the identification — including reference to both any suggestibility in the identification procedure and any coutervailing testimony such as alibi.’” 432 U.S., at 114, n. 14, quoting Clemons v. United States, 133 U.S.App.D.C. 27, 48, 408 F.2d 1230, 1251 (1968) (concurring opinion) (footnote omitted).

Watkins v. Sowders, 449 U.S. 341 (1981).

Once the trial court found the identification procedures to be reliable it was for the jury to decide what weight, if any, they would give to an incomplete visual identification and what weight they would give to an arguably suggestive voice identification, for ‘‘the proper evaluation of evidence under the instructions of the trial judge is the very task our system must assume juries can perform.” Watkins v. Sowders, supra. Here the attorney for appellant exhaustively cross-examined the prosecutrix on her identification and skillfully argued the matter. The trial court was correct in ruling that the jury should be allowed to weigh the identification evidence.

The appellant next contends that the trial court erred in denying his motion for a continuance after reversing his ruling on admissibility of the visual lineup. We find no error.

In Stephens v. State, 277 Ark. 113, 640 S. W.2d 94 (1982), we stated:

A motion for a continuance is addressed to the sound discretion of the trial court. Its action will not be reversed absent a clear abuse of that discretion amounting to a denial of justice and the burden is on the appellant to demonstrate such abuse. Russell v. State, 262 Ark. 447, 559 S.W.2d 7 (1977). In considering whether the court’s discretion has been abused in a particular case, the circumstances of the case must be examined with emphasis on the reasons presented to the judge at the time. Tyler v. State, 265 Ark. 822, 581 S.W.2d 328 (1979).

The circumstances surrounding this case demonstrate a real need for the trial judge to grant a continuance only upon the presentation of valid and specific reasons. This case was (1) set for October 27, 1980, (2) passed to January 12, 1981, (3) reset for May 4,1981, and (4) reset for November 30, 1981. On that day, after the jury was empanelled and sworn the appellant received a continuance, and the case was (5) reset for December 15, 1981. On that date a mistrial was granted because the appellant had escaped and a juror had read about a different conviction of appellant. The case was (6) reset for February 22, 1982 and then (7) reset for April 12, 1982. On that date the trial commenced and the appellant moved for yet another continuance. He offered no specific reasons. He did not contend that the reversal of his prior ruling on the visual lineup required different or additional witnesses nor did he give any other detailed reason why he needed more time. The reversal of the earlier suppression ruling affected only a limited part of the case. As recited by the trial judge, the appellant’s attorney had previously explored that limited part of the case at the two prior suppression hearings. No unknown or new evidence was allowed by the ruling. The trial court did not abuse his discretion in denying the motion.

Appellant’s next point is that the trial court erred in refusing to allow him to test the prosecutrix’s auditory memory with a recording of various voices. The trial court excluded the evidence on the grounds that it was neither identical with nor similar to the prosecutrix’s prior firsthand voice identification. The lack of similarity was demonstrated during appellant’s proffer of the recording when it was necessary to replay a part of the recording because the witness stated it was “distorting.” A ruling on relevancy is discretionary with the trial court and its decision will not be reversed unless an abuse of the trial court’s discretion in the matter is found. See e.g., Daniels v. State, 277 Ark. 23, 638 S.W.2d 676 (1982); Rasmussen v. State, 277 Ark. 238, 641 S.W.2d 699 (1982).

The rationale of our rule is well set out in McCormick’s Evidence § 202 (1972 ed.):

Here . . . the question is one of weighing the probative value of the evidence of experiments against the dangers of misleading the jury (who may attach exaggerated significance to the tests), unfair surprise, and, occasionally, undue consumption of time. The danger of arousing hostility or prejudice is seldom present in respect to this type of evidence. Usually the best gauge of the probative value of experiments is the extent to which the conditions of the experiment were identical with or similar to those obtaining in respect to the litigated happening. Accordingly, counsel in planning experiments must seek to make the conditions as nearly identical as may be, and in presenting the evidence he must be prepared to lay the foundation by preliminary proof of similarity of conditions. Though the similarity formula is sometimes over-rigidly applied, most courts will recognize that the requirement is not a relative one, so that where a high degree of similarity is not attainable, the court might still conclude that the results of the experiment are of substantial enlightening value to the jury and admit the evidence. Manifestly, if the trial judge is to be given responsibility for exercising such an indefinable value-judgment he must be accorded a reasonable leeway of discretion reviewable only for abuse.

Considering the facts before him, the trial judge did not abuse his discretion in disallowing the experiment.

Appellant’s final contention is that the trial court erred in admitting a charm bracelet into evidence. The bracelet was identified as one belonging to the prosecutrix and which had been stolen from her home on the night of the crimes. Appellant contends that the bracelet was not connected to him and therefore is not relevant.

On various occasions appellant and his paramour occupied her father’s house. Her father consented to a search of his house. The prosecutrix’s charm bracelet was found in the paramour’s bedroom which, according to her father’s testimony, had been occupied on occasion by his daughter and appellant.

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Ark. Unif. Rules of Evid. Rule 401, Ark. Stat. Ann. § 28-1001 (Repl. 1979).

The discovery of the charm bracelet in a room which had been occupied by appellant after the crimes had a tendency to make his identity as the intruder more probable than it would have been without that evidence. Therefore the circumstantial evidence was relevant and admissible. Parker v. State, 266 Ark. 13, 582 S.W.2d 34 (1979).

Pursuant to Rule 11 (f) we have reviewed all objections decided adversely to appellant and find no prejudicial error.

Affirmed.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Morris WOODS, Jr. v. STATE of Arkansas
    CR 82-122
    644 S.W.2d 937
    Supreme Court of Arkansas
    Opinion delivered January 31, 1983

      Robert B. Lamb, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

In 1981 appellant entered pleas of guilty to three charges of aggravated robbery and one charge of burglary. The trial court did not accept the pleas until he was satisfied that appellant knew the nature of the charges, the minimum and maximum sentences, that he was waiving the right to a jury trial and that the plea was voluntary and made without force, threats or promises. The trial court determined the accuracy of the pleas and asked appellant if he was guilty. He responded, “Yes.” The judge then asked: “Are you fully satisfied with your attorney and the service that he has . . . and the interest that he has rendered to you?” Appellant responded, “Yes, sir.” Appellant was then sentenced to three concurrent thirty-five year terms and one concurrent twenty year term in the penitentiary. At that time appellant also executed a two page statement to his attorney which, among other things, provided:

(9) I believe that my lawyer has competently done all that anyone could do to counsel and assist me, AND I AM SATISFIED WITH THE ADVICE AND GUIDANCE HE HAS GIVEN ME.

On September 14, 1982, appellant filed a handwritten petition for post-conviction relief alleging that his imprisonment was illegal in that his confession was coerced; that his arrest was illegal; that the prosecution had failed to disclose favorable evidence; and that he did not receive effective assistance of counsel. The same trial court scheduled a post-conviction hearing pursuant to A.R.Cr.P. Rule 37, and appointed a different attorney to represent appellant. The new attorney promptly filed a two-page motion seeking to have the trial judge recuse himself because of prejudice to be proved by fact and prejudice as a matter of law. The trial judge refused to recuse himself and refused any substantive relief. We affirm. Jurisdiction of this Court is invoked pursuant to Rule 29 (1) (e).

Appellant, whose sentences have now been put into execution, asks to withdraw his pleas pursuant to A.R.Cr.P. Rule 26.1 (c) (i). Guilty pleas may not be directly withdrawn after the sentence is put into execution. Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977). At this stage of the proceeding a withdrawal of plea can be had only after a successful collateral attack on the conviction under a Rule 37 hearing. Shipman v. State, supra.

Appellant’s first argument under Rule 37 is that the trial judge committed error in fact by failing to recuse himself. The transcript reflects that no evidence was given on recusal. Disqualification is discretionary with the judge himself and he will not be reversed absent some abuse of that discretion. Narisi v. Narisi, 229 Ark. 1059, 320 S.W.2d 757 (1959). Since there was no evidence on the issue there was no showing of abuse of discretion and we affirm on this issue.

In the second phase of the recusal argument appellant contends that the trial judge should have recused himself as a matter of law because “the practice of having the trial judge hear Rule 37 petitions violates the spirit, if not the letter, of the Constitutional prohibition against a judge presiding in the trial where he has ‘presided in any inferior court.’” Ark. Const. Art. VII, § 20.

Here, no inferior court is involved in the context of the Constitution and the procedure does not violate the letter of Article VII, § 20. Likewise, the procedure does not violate the spirit of fairness imbued in the section. As stated in Meyers v. State, 252 Ark. 367, 479 S.W.2d 238 (1972):

[T]he appellant argues that his constitutional rights were violated because the postconviction proceeding was presided over by the same judge who imposed the original sentence. Counsel cite no authority for this contention. The point is discussed in § 1.4 of the Standards Relating to Post-Conviction Remedies (1968). That discussion first points out that the most desirable venue for a postconviction proceeding is in the court in which the challenged conviction and sentence were rendered. The discussion then continues: “Where jurisdiction is vested in the trial courts and venue is determined as in (b) above, neither a general rule favoring nor one disfavoring submission of post-conviction applications to the same trial judge who originally presided is clearly preferable.” The Commentary goes on to state: “The same judge brings to the post-conviction proceeding familiarity with the case or the applicant that may make for more efficient handling. The same judge may be more free in fact to consider or reconsider matters affecting his prior rulings than would a colleague on the bench. On the other hand, there are obvious disadvantages and risks in such a practice. There is a value in seeking determination from a mind not predisposed by prior incidents, and a significant related value that the arbiter appear not to be predisposed.”
We have recognized the need for a different presiding judge when the one who originally heard the case is biased or, for want of a record of the first hearing, must appear as a witness. Elser v. State, 243 Ark. 34, 418 S.W.2d 389 (1967); Orman v. Bishop, 243 Ark. 609, 420 S.W.2d 908 (1967). In the case at hand, however, the petitioner asserts no factual basis for his insistence that the assignment of a new judge is constitutionally mandatory. We find nothing in the record to suggest that Judge Enfield was disqualified from acting upon the postconviction petition. To the contrary, he appears to have treated the petitioner with courtesy and fairness in every particular. The present contention is therefore without merit.

When we were asked to reverse the above quoted language, we reaffirmed it. Easley v. State, 255 Ark. 25, 498 S.W.2d 664 (1973).

In the case before us there is no suggestion of prejudice in the original proceeding, nor is there any proof to suggest that the trial judge should be disqualified from acting on the post-conviction proceeding, nor is there error as a matter of law because the same trial judge presided over both proceedings.

Appellant next argues that the trial judge erred in excluding evidence by the original attorney on the issue of ineffective assistance of counsel. The issue arose in the following manner. Appellant’s original attorney was on the witness stand for direct testimony on appellant’s case-in-chief. He was asked if he filed a motion to suppress appellant’s confessions on the ground that they were taken during an unlawful arrest. The attorney responded that he had filed such a motion. The State then objected to the line of questioning and argued that, under the case of Moore v. State, 273 Ark. 231, 617 S.W.2d 855 (1981), a defendant is foreclosed from questioning his attorney’s competency when, at the time of his plea, he states that he is satisfied with the services of his attorney. The court sustained the objection. Appellant now contends the ruling was erroneous as it excluded evidence on the issue of ineffective assistance of counsel. The trial court ruling may have been erroneous, but we have no way of deciding because there were no further questions on the subject and there was no proffer of the excluded testimony. An exclusion of evidence cannot be reviewed in the absence of a proffer showing what the evidence would have been. Brown v. State, 277 Ark. 294, 641 S.W.2d 7 (1982); Rule 103 (a) (2), Ark. Unif. Rules of Evid., Ark. Stat. Ann. § 28-1001 (Supp. 1977). The point was not preserved for appeal.

Affirmed.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the result only because we did state in Moore v. State, 273 Ark. 231, 617 S.W.2d 855 (1981) that the accused had the opportunity to raise ineffective assistance of counsel at the time of sentencing. This rule is entirely too strict and for numerous reasons should be modified. It takes no imagination to realize that most defendants are not learned in the law and would not know at the time of sentencing whether, for example, evidence had been seized in violation of the Fourth Amendment protection. In most instances the allegations of ineffective assistance of counsel are not known until much later. In any event a statement signed by an accused, in the presence of his attorney, that he is satisfied with the services of that attorney is at the very least suspect. Such a statement could even be executed prior to sentencing or trial. In the future I shall vote to hold such statements made at or before sentencing to be of little or no value in determining effectiveness of counsel. Under any circumstances the burden would be with the defendant to prove ineffective assistance. The signed statement should perhaps be allowed as evidence of effectiveness, but should not be conclusive in and of itself.


text:
    Fred O. WINGFIELD, Jr. and Martha WINGFIELD v. Kenneth Gerald PAGE and Drenda Sue PAGE
    82-198
    644 S.W.2d 940
    Supreme Court of Arkansas
    Opinion delivered January 31, 1983

      Hall, Tucker ir Lovell, by: O. Wendell Hall, Jr., for appellants.

      David E. Smith of Boswell & Smith, for appellees.
   Robert H. Dudley, Justice.

Appellants Wingfield, house builders, constructed a house in a subdivision they w'ere developing in Benton. In May, 1979, they executed a contract to sell the previously unoccupied house to the appellees Page for $52,600. The contract contained the following provision:

13. INSPECTION AND REPAIRS: Buyer certifies that Buyer has inspected the property and is not relying upon any warranties, representations or statements of Agent or Seller as to age or condition of improvements, other than those specified herein. 13A and 13B do not apply to new previously unoccupied dwellings.
A. _X_ Buyer accepts the property in its present condition, subject only to the following: New Warranty for 1 year on New House.

During the first year of occupancy the appellees experienced leaking faucets, cracks in the showers, a sweating glass door and water leaks which required restretching of the carpet. During that period appellants repaired the defects. In June, 1980, appellees discovered large cracks in the exterior walls and doors that would no longer close. They asked appellants to repair the house. By this time, slightly more than one year had passed from the date of the contract and appellants adopted the position that their liability for repairs was absolved by the quoted provision.

Appellees filed suit for rescission in chancery court and then amended the complaint to ask for damages in the amount of $20,000 as the result of the breach of express and implied warranties. The case was then transferred to circuit court where appellants contended that the quoted language was an express one-year warranty which excluded all implied warranties. During the trial the appellees were allowed to increase their prayer for damages to $40,000. The trial lasted two days and appellees introduced evidence by an expert in the field of soil mechanics and foundation engineering that the expansive nature of the soil underneath the house caused flexation of the foundation which literally broke the house. He testified that the condition of the house would continue to worsen as the appellants had used the wrong tye of foundation for the existing soils. In addition, he testified about the proper type of foundation for the soil involved; the availability of the appropriate literature to builders; and the cost of repairing the existing defects. After ten minutes of deliberation the jury returned a verdict for appellees in the amount of $35,579. The Court of Appeals certified the case to this Court as it involves a legal principle of major importance. Rule 29 (4) (b). We affirm the judgment.

The potential remedies of a purchaser of residential property against a builder-vendor have undergone change in recent years. The remedies come within the common law doctrines of tort and contract and the statutory doctrine of strict liability. As a matter of public policy the rule of caveat emptor has been significantly diminished.

Within the purview of contract law the purchaser may seek damages for breach of express or implied warranties. The implied warranty does not rest upon an agreement in fact, as does the express warranty, but arises by operation of law and is intended to hold the builder-vendor to a path of fairness. Under certain conditions the purchaser may assert mistake, misrepresentation or fraud and deceit, repudiate the contract and seek rescission.

Under the law of torts the purchaser may state a cause of action for negligence or if the builder-vendor acts with actual knowledge and an intent to deceive, may file a tort suit for fraud and deceit. Misrepresentation may also be the basis of a tort action.

Finally a purchaser may seek relief under the statutory remedy of strict liability which imposes liability, as a matter of public policy, on the party best able to shoulder it. See Defective Housing: Remedies Available to the First and Subsequent Purchasers, 25 So. Dakota L. Rev. 333 (1980); Breach of Warranty in the Sale of Real Property: Johnson v. Healy, 41 Ohio St. L.J. 727 (1980).

In the case at bar the appellees did not seek to recover under the doctrine of strict liability. See Blagg v. Fred Hunt Co., Inc., 272 Ark. 185, 612 S.W.2d 321 (1981). The case was submitted to the jury on the theories of tort and contract for negligence and breach of implied warranty. Appellants contend that the instruction on implied warranty was erroneously given. Thus, the first point of this case deals only with the contractual remedies for breach of warranty.

In Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970), an opinion frequently cited in comments and articles, this Court abandoned the doctrine of caveat emptor, because of stated policy considerations, and adopted the view that, by operation of law, a builder-vendor gives implied warranties of inhabitability, sound workmanship and proper construction. That decision was thought to have raised the question of whether proof of faulty workmanship or construction was required to support a recovery under the theory of breach of warranty of habitability. Woods, The Personal Injury Action in Warranty Has the Arkansas Strict Liability Statute Rendered It Obsolete, 28 Ark.L.Rev. 335, 355 (1974). The question was answered when the concept of implied warranties in residential construction was extended by finding a breach of the warranty of habitability based upon faulty design. Coney v. Stewart, 263 Ark. 148, 562 S.W.2d 619 (1978). See also, Contracts Implied Warranties in Residential Construction Contracts, 2 U.Ark. Little Rock L.J. 166 (1979). This Court in Coney, supra, emphasized our commitment to the concept of fairness based upon the policy reasons stated in Wawak, supra, and in Blagg, supra, we extended the implied warranty on latent defects to subsequent purchasers under some conditions.

In this case appellants contend that the language “New Warranty for one year on New House’’ created an exclusive express warranty which preempted any implied warranty on the foundation of the home. From that hypothesis they argue that the instruction on implied warranty was erroneous. As authority appellants cite Carter v. Quick, 263 Ark. 202, 563 S.W.2d 461 (1978). In that case we held that when a contract for residential construction contains an express warranty on a subject, that warranty is exclusive and there can be no implied warranty on that subject. Id. at 205-6. However, the case before us differs from Carter because here the quoted contractual provision makes no promise as to a standard of workmanship, construction or habitability. The provision does not purport to be a disclaimer of fitness for habitation. Even if we assume that the merger doctrine did not apply to the contract and warranty deed, we think it plain that the quoted provision did not exclude an implied warranty with respect to the defect now in question, which lay beneath the house and could not have been discovered by even the most careful inspection. See Wawak, supra. Therefore, we have no hesitancy in affirming the trial court in instructing the jury on implied warranty.

In Carter v. Quick, supra, we held that one may not recover under an implied warranty against a builder-vendor of a new home where there is a contractual provision which expressly covers the standard of workmanship. We arrived at this conclusion through reliance on pre-Uniform Commercial Code cases. Under the Uniform Commercial Code, however, warranties are generally construed as consistent with each other unless such a construction is unreasonable. See Ark. Stat. Ann. § 85-2-317 (Add. 1961). We do not review Carter at this time since the exact issue is not before us, but recognize that at least one court has now analogized in a similar case to warranties of goods under the Uniform Commercial Code. Johnson v. Healy, 176 Conn. 97, 405 A.2d 54 (1978); See also, Breach of Warranty in the Sale of Real Property: Johnson v. Healy, 41 Ohio St. L.J. 727 (1980). Some states have held a vendor-builder liable under both express and implied warranties. See: Defective Housing: Remedies Available to the First and Subsequent Purchasers, 25 So. Dakota L.Rev. 333 (1980). The Carter concept of express warranty should be analyzed to see if it embodies all of the elements of a disclaimer. If it does, we note that one commentator advances the argument that a disclaimer of fitness for habitation in the sale of new construction is unconscionable and against public policy. Hashel, The Case For An Implied Warranty of Quality in Sales of Real Property, 53 Geo. L.J. 633, 654 (1965). One court has held: “The public policy of Illinois does not prohibit a waiver or disclaimer of an implied warranty of habitability if such renunciation is sufficiently specific to adequately apprise the buyer of what he is waiving.” Conyers v. Malloy, 50 Ill.App.3d 17, 364 N.E.2d 986 (1977). Assuming the implied warranty of habitability could be properly disclaimed, issues of the disclaimer’s conspicuousness, detail, and reasonableness would merit our consideration. This area of our common law troubles us and we will welcome the opportunity to reexamine it. However, the issue is not now before us.

Appellants’ next point for reversal is that the trial court erred in allowing the appellees to increase the amount of their prayer for damages. We find no merit in the contention. The case was originally filed as a suit for rescission. It was then amended into a suit for damages with a prayer for $20,000. On the first day of trial the appellees moved to amend the amount of the prayer to $40,000. The appellants did not claim surprise nor did they ask for a continuance; they only objected to the amendment. The trial court deferred ruling on the motion until all of the testimony was heard in order to determine whether any new issues were injected into the case by the proposed amendment. The trial court stated that if no new issues were injected and “if I see that there has been no prejudice done to the defendant, I will grant a motion to conform your pleadings to the proof. If I feel there is some prejudice that’s been done to the defendant, I will deny the motion.” At the conclusion of the testimony the trial court authorized the amendment of the pleadings to conform to the proof.

The trial court is authorized to amend pleadings or to conform them to the facts proved. ARCP Rule 15. This rule vests broad discretion in the trial court to permit amendment to pleadings and the exercise of that discretion by the trial court will be sustained unless it is manifestly abused. Steed v. Busby, 268 Ark. 1, 595 S.W.2d 34(1980). One seeking reversal on that ground must show the manifest abuse of discretion. Steed, supra. No such abuse has been shown to exist in this case.

Appellants contend that “the trial court erred in not granting appellant’s request for a new trial because the jury verdict, reached in ten minutes, for the exact amount claimed by appellees, was clearly grossly excessive and the result of passion and prejudice.” We find no merit in the argument.

The length of time of jury deliberation is not, of itself, a ground for a new trial. ARCP Rule 59 (a). Here, we have considered it as one of the factors in evaluating whether excessive damages appear to have been given under the influence of passion or prejudice. ARCP Rule 59 (a) (4). Appellees’ expert witness in the field of soil mechanics and foundation engineering testified that the cost of stabilizing the foundation and walls was $32,975 and their witness on the cost of interior repairs testified to $2,604 damage to the interior of the residence. These two figures total $35,579, the precise amount of the verdict. Thus, there is substantial evidence to support the verdict. We cannot say the jury verdict was motivated by passion or prejudice.

Affirmed.


author: Per Curiam.

text:
    William MUNN, Jr. v. STATE of Arkansas
    644 S.W.2d 945
    Supreme Court of Arkansas
    Opinion delivered January 31, 1983

      Pro se Motion for Belated Appeal; motion denied.
    Petitioner, pro se.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for respondent.
   Per Curiam.

In May, 1982, petitioner William Munn, Jr. was convicted in the Circuit Court of Howard County of second degree murder. He was sentenced to twenty years imprisonment in the Arkansas Department of Correction. He has now filed a pro se motion seeking permission to file a belated appeal of his conviction. In his motion he concedes that although he was aware of his right to appeal, he failed to inform his attorney of his desire to appeal until after the time for filing a notice of appeal had passed. He attributes his delay to ignorance of the law and to the fact that he was transferred to prison and isolated for a period of time. In an affidavit filed in response to petitioner’s motion, the attorney states that after trial he discussed with petitioner whether an appeal would be taken and petitioner said he did not want to appeal. He was not notified that petitioner had changed his mind until approximately two weeks after the time for filing the notice of appeal had expired.

Criminal Procedure Rule 36.9 provides that a belated appeal may be granted for good cause even if no notice of appeal was filed. We have consistently held that the failure of counsel to perfect an appeal in a criminal case where the defendant desires an appeal amounts to a denial of the defendant’s right to effective assistance of counsel. Gray v. State, 277 Ark. 442, 642 S.W.2d 306 (1982). We recognize, however; that a convicted defendant may waive his right to appeal, Gray, supra, and in petitioner’s case we find that he did so.

Petitioner states that after trial he was undecided about whether to appeal. He admits that by the time he wrote his attorney, it was too late to file a notice of appeal. Counsel’s affidavit indicates that he would have acted promptly if instructed to do so. Petitioner has provided no good cause for his failure to contact the attorney within the time set for filing a notice of appeal.

Motion denied.


author: George Rose Smith, Justice. Darrell Hickman, Justice, Morris S. Arnold, Special Chief Justice, Theodore C. Skokos, Special Justice, W. P. (Billy) Switzer, Special Justice,

text:
    Jim MORRIS et al v. TORCH CLUB, INC. et al
    82-75
    645 S.W.2d 938
    Supreme Court of Arkansas
    Opinion delivered February 7, 1983
    [Rehearing denied March 21, 1983.]

      Lady & Blackman, by: Frank Lady, for appellant.

      Ike Allen Laws, P.A., Kurt Butcher, Joseph C. Kemp, Ponder ir Jarboe, Huey ir Vittitow, and R. Jack Magruder, III, by: Herbert C. Rule and Thomas P. Thrash of the Rose Law Firm, P.A., for appellees.

      Steve Clark, Atty. Gen., by: Jeffrey A. Bell, Asst. Atty. Gen., for Intervenor Steve Clark, Attorney General.

      Charles R. Singleton, for Alcoholic Beverage Control Division.

       Arnold, Sp. C.J., and Skokos and Switzer, Sp. JJ., would grant rehearing.

   George Rose Smith, Justice.

The question that must eventually be decided in this case is whether Section 10 of Act 132 of 1969, Ark. Stat. Ann. § 48-1410 (Repl. 1977), which permits the serving of alcoholic beverages in private clubs in “dry” counties, is invalid because it actually amended an initiated act prohibiting the sale of liquor in a dry county, § 48-802, without receiving the two-thirds legislative vote that is required for the amendment of an initiated act. Ark. Const., Amendment 7. The trial judge compared the language of the private-club statute with the earlier initiated act and held that the one did not amend the other. We reverse and remand, because the true meaning and practical effect of the private-club statute cannot be understood or determined without the development of pertinent areas of fact. See Ark. Motor Vehicle Commn. v. Cliff Peck Chevrolet, 277 Ark. 185, 640 S.W.2d 453 (1982).

This case is a sequel to Kemp-Bradford VFW Post 4764 v. Wood, 262 Ark. 168, 554 S.W.2d 344 (1977), where we held that the question now at issue could not be raised in an action for a writ of mandamus to compel the Alcoholic Beverage Control Board to cancel all private-club permits. We said, however, that other procedures were available to the plaintiffs, “the most obvious” being an action for a declaratory judgment.

The appellants, as citizens and taxpayers in a dry county, then brought this action for a judgment declaring the private-club statute to be invalid. Among the defendants are the director and the members of the Alcoholic Beverage Control Board and various representative private clubs, including country clubs, a recreation club, an American Legion post, a private club in a Holiday Inn motel, and others. In a case of this kind, in which the rival parties are in effect acting for the general public, it is our practice to be sure that all essential contentions are considered on their merits. See Chandler v. Board of Trustees of the Teacher Retirement System, 236 Ark. 256, 365 S.W.2d 447 (1963).

Turning to the statutes, the initiated act prohibits the sale of intoxicating liquor in a dry county. § 48-802. The private-club statute provides that the preparation and serving of alcoholic beverages in a private club “under a so-called ‘locker,’ ‘pool,’ or ‘revolving fund’ system” shall not be deemed to be a sale or to be in violation of law. § 48-1410 (a). The section also provides for the issuance of private-club permits under rules and regulations of the Control Board. Such regulations have been issued, but their language is so general that it is impossible to tell what a pool or revolving fund system really is, nor are we aware of any recognized exact meaning for those terms. (The regulations do say that a locker system is one in which all controlled beverages on the premises are owned by the members individually, but every one of the private clubs has elected to operate on the pool or revolving fund system rather than on the locker system.)

It is a familiar rule of law that in the construction of a statute the manner in which it has long been interpreted by executive and administrative officers is to be given consideration and will not be disregarded by the courts unless it is clearly wrong. Walnut Grove Sch. Dist. No. 6 v. County Bd. of Education, 204 Ark. 354, 162 S.W.2d 64 (1942). The private-club statute has been on the books for almost fourteen years. Regulations and scores of permits have been issued under the statute. Thus there is available an abundance of facts to show whether the statute, as interpreted pursuant to the legislature’s direction, is in practice an amendment of the initiated act. It is possible that private clubs may operate within the law, for the initiated act does not prohibit the possession or consumption of intoxicating beverages in a dry county. Some of the appellees, however, concede that it is also possible for a private club to operate in violation of the initiated act. It is totally impossible for us to say, without knowing the facts, whether violations of the initiated act in truth exist. The appellants sought to introduce such proof, but the trial court ruled that “facts relating to the method by which the named defendants’ clubs conduct their business and the methodology employed by the Alcoholic Beverage Control Board in deciding whether or not a permit should be issued . . . for a Private Club Permit are . . . beyond the scope of this litigation.” That ruling was wrong; those issues must be opened to examination. We are not attempting to act as a law enforcement agency. To the contrary, we are merely seeking to determine whether the Alcoholic Beverage Control Board, by the issuance of private-club permits, is giving the appearance of legality to establishments that are not within the permissible scope of the 1969 statute.

Reversed and remanded.

Adkisson, C.J., and Holt, Purtle, and Dudley, JJ., not participating.

Special Justice Eldon F. Coffman joins in this opinion.

Special Chief Justice Morris S. Arnold and Special Justices W. P. Switzer and Theodore C. Skokos, dissent.

Darrell Hickman, Justice,

concurring. I agree with the decision but concur to explain to the parties where I think we are in this lawsuit. In my judgment we have held that Act 132 of 1969 does not necessarily violate Initiated Act 1 of 1942.

The initiated act prohibits the “manufacture, sale, barter, loan or giving away” of any intoxicating liquor in dry counties. It does not outlaw individuals from possessing or drinking liquor. That simply means the people in dry counties do not want liquor sold in those counties. The letter and intent of the act should be strictly enforced. It is common knowledge that the operation of some so-called private clubs would seem to violate not only the spirit but the letter of Initiated Act 1 of 1942. That was the cause of the case of Kemp-Bradford VFW Post 4764 v. Wood, 262 Ark. 168, 554 S.W.2d 344 (1977). No doubt there are legitimate private clubs which do not exist solely to sell liquor and circumvent the prohibitions of Initiated Act 1 of 1942. The dispensing of liquor can be carefully regulated and limited to members and guests only so as not to constitute a sale of intoxicating liquor to the public.

The legitimate private clubs should not be resisting the efforts of the appellants. They should join the efforts of the appellants to see that the Alcoholic Beverage Control Board strictly enforces the law to prevent the operation of “clubs” that are nothing but a ruse.

The appellants have rightfully sought, among other things, to prove that some clubs are nothing but a sham and that as a matter of fact are violating the law. They have alleged “membership” can be attained by merely registering at a hotel or motel. There may well be other relevant evidence regarding some private clubs; for example, token membership charges or the lack of any purpose except to sell liquor in a dry county. In that regard the appellants should have the right to pursue their suit. If they prove Initiated Act 1 of 1942 is being violated in spirit or in fact, then those clubs should be closed. And in my judgment the appellants can pursue such a goal by declaratory judgment. Ark. Stat. Ann. § 54-2501 (Repl. 1962). It may be a lengthy and tedious process but otherwise Initiated Act 1 of 1942 is meaningless and the will of the people will be frustrated.

Morris S. Arnold, Special Chief Justice,

dissenting. In my opinion, this case comes here on an entirely improper footing. It is fundamental that even in an action for a declaratory judgment plaintiffs are required to claim and demonstrate that they have a legally protected interest which is being, or is about to be, invaded. Andres v. First Ark. Development Finance Corp., 230 Ark. 594, 324 S.W.2d 97 (1959). The plaintiffs in this case have not done so. Instead, they rely solely on their status as citizens and taxpayers in a "dry” county to give themselves standing, and that is too frail a foundation on which to raise a real case. If the defendants had initiated this action, in an effort to discover whether their conduct was criminal, then the matter would be entirely different and the action might well have been properly brought. Covington, The Declaratory Judgments Act, 7 Ark. L. Rev. 306 at 312-13 (1953). The defendants would have an obvious sort of interest in knowing whether their actions might subject them to prosecution. But here the plaintiffs show little more than an undifferentiated and idle curiosity about the legality of activities engaged in by people most of whom are not even their neighbors. Courts ought to decide cases, not encourage voyeurism.

Since this record presents no justiciable controversy, if there were not special circumstances, the plaintiffs’ complaint ought simply to be dismissed. However, in Kemp-Bradford VFW Post v. Wood, 262 Ark. 168, 554 S.W.2d 344 (1977), this court held that the issues presented here could not be raised by petition for mandamus to the Alcoholic Beverage Control Board (A.B.C.). One of the alternative bases on which that holding proceeded had to do with the extraordinary character of mandamus: Since, the court’s argument ran, a declaratory judgment action was available to try the validity of Ark. Stat. Ann. § 48-1410, the petition for mandamus was improperly brought. Although, as noted above, the propriety of a declaratory judgment action in these circumstances is dubious at best, and although its availability was only an alternative basis for the holding in Wood, it nevertheless seems appropriate to reach the merits of this case. The plaintiffs would at the very least be entitled to feel hard done by if we were to dismiss their complaint in the face of the assertions made in Wood.

Turning therefore to the merits, it appears that the abstract legal question that the plaintiffs asked to have decided was whether Ark. Stat. Ann. § 48-1410, which allows the A.B.C. to license private clubs in “dry” counties, conflicts on its face with Ark. Stat. Ann. § 48-803, an initiated act which prohibits the manufacture, sale, barter, loan, or gift of intoxicating liquor in “dry” counties. It is not necessary, in order to answer this question, to remand this case for evidence of what private clubs actually do: The meaning of § 48-1410 is entirely independent of the practices engaged in under it. In my view, there is no conflict between the relevant statutes. Since § 48-803 prohibits neither the possession nor consumption of alcoholic beverages in “dry” counties, it is entirely possible for private clubs to operate completely within the law in such counties. A simple example should suffice. If liquor is purchased in a “wet” county by a private club as agent for its members, and that liquor is later served to them in a “dry” county, there has been in the “dry” county only possession and consumption. There has been there no sale, barter, loan, or gift. Since, therefore, the two statutes can stand together, it follows that the trial court ought to be affirmed.

By remanding this case for a determination of the actual practices of the defendant private clubs, the majority has transformed the nature of the plaintiffs’ complaint. Though the matter is not completely free of doubt, it appears that what began as an action to determine the facial validity of a purported statute will now become a proceeding to determine the criminality of the actual activities of particular defendants. While this metamorphosis at least has the advantage of creating for the first time something like a real case for adjudication, it is a very peculiar kind of case indeed. In fact, it is one hitherto unknown to the common law of Arkansas. The majority today gives its sanction to something very close to a privately initiated criminal “action”, the difference being that apparently the end in view is only a declaration that certain behavior has been criminal, rather than the imposition of a pecuniary or corporal penalty. There are, it is true, legal systems in which private individuals are empowered to institute criminal proceedings, but the common law long ago abandoned that idea. Certainly such a procedure has not been authorized in Arkansas since civilian legal processes were replaced by common-law institutions soon after the French and Spanish ceded their sovereignty over Louisiana in 1803. Presumably, however, one aspect of civilian criminal process, its inquisitorial character, is unavailable to the plaintiffs on. remand, since their rights of discovery will be circumscribed by the Fifth Amendment to the United States Constitution.

It ought to be obvious that the proper way to determine the legality of the activities of private clubs in “dry” counties is in the context of a properly instituted criminal case where the issues can be developed and decided in light of a specific set of facts. There are numerous agencies to which the enforcement of the criminal law has been entrusted, and this court ought not to combine with these plaintiffs precipitously to invent novel criminal procedures. Even if it were admitted that members of the public have, in the technical sense, an interest in the proper enforcement of the criminal law, a proposition by no means obviously correct, our legal system has for good reason delegated the vindication of that interest to public authorities. This constitutional arrangement, made long ago and for so long adhered to, ought not lightly to be swept aside. With respect, it seems to me that the majority, motivated by a desire to have an important public question decided, has acted without warrant in reaching its conclusion.

Theodore C. Skokos, Special Justice,

dissenting. I respectfully dissent from the opinion rendered by Mr. Justice Smith for the majority. The sole issue before this Court is whether or not Section 10 of Act 132 of 1969 expressly or implicitly amended Section 3 of Initiated Act 1 of 1942. It is my considered opinion that knowledge of how individual private clubs in dry counties operate is neither relevant nor necessary information needed by this Court to decide the issue before it. The trial court’s ruling that “facts relating to the method by which the named defendants’ clubs conduct their business and the methodology employed by the Alcoholic Beverage Control Board in deciding whether or not a permit should be issued . . . for a Private Club Permit are . . . beyond the scope of this litigation” should not be tampered with. The majority disagrees. It is interesting to note that the majority’s rationale for reversing and remanding raises an issue of limited discovery which is not even before this Court.

Whether or not Act 132 of 1969 is in conflict with Initiated Act 1 of 1942, as it relates to dry counties and dry subdivisions, is a question of constitutional law and is ripe for a decision which should be made by this Court without further inquiry or delay.

W. P. (Billy) Switzer, Special Justice,

dissenting. It is with regret that my duty, as I see it, requires that I dissent from the majority view to remand this case for development of additional proof of how the various defendant clubs operate their respective businesses; whether they operate in accordance with Act 132 or they do not. In so doing, I am not unaware that dissenting opinions generate as little attention as a red-headed bastard at a family reunion.

If the method of operation of private clubs in dry counties is the business of this court, what about the private clubs that are not parties to this action and that number far exceeds the number of defendant clubs. It would seem that the operations of private clubs that are not parties to this action would be a legitimate concern of this court and to paint a complete picture that the majority declares is necessary to resolve a constitutional question.

If, from the voluminous additional record that will be furnished because of this remand, it appears that some clubs do and some do not operate in accordance with the provisions of Act 132 and the rules and regulations promulgated by the Alcoholic Beverage Control Board in aid of that Act, does the court propose to punish the just for the irresponsibilities of the unjust by using the non-conformance of some as a crutch to hold a statute unconstitutional?

The majority opinion said:

“We are not attempting to act as a law enforcement agency.”

I disagree. I am strongly persuaded that the court is usurping the prerogatives and responsibilities of the Alcoholic Beverage Control Board, which was charged by the Legislature with the promulgation of rules and regulations pertaining to the operation of private clubs, to assure compliance with the provisions of the Act, and delegated the sole authority to enforce the provisions of Act 132.

If Act 132 is unconstitutional, the Legislature made it so and not the day-to-day operations of private clubs. Whether private clubs operate as they are required is a matter of enforcement, and whether we think that enforcement is good or bad is inconsequential to the constitutional question involved. There is nothing in the record before this court from which the immaterial question of enforcement could be evaluated. I think the trial judge was correct in overruling the offer of proof on that point. It is irrelevant to the issue before us if the court has in fact renounced its role of policeman.

There is, I think, a good record in this case presenting a single issue, a constitutional issue, which is especially within the sole province of this court to determine and lay at ease. It has been presented to this court at considerable expense, time and effort by both parties and the apparently inexhaustible patience of the trial judge.

This is a highly emotional, volatile and political issue. It always is, another problem of alcohol. This is the second time this matter has been before this court. In Kemp-Bradford VFW Post 4764 v. Wood, 262 Ark. 168, 554 S.W.2d 344 (1977), a divided court reversed and dismissed on the shaky ground that mandamus was not a proper remedy. This case is remanded by a divided court on equally unstable grounds. It will appear on the agenda of this court again at some future time. It is not difficult to decipher the game plan of the majority.

In my view, there is one sole overriding constitutional issue to decide and that is whether Act 132 conflicts with Initiated Act No. 1. It is a question of black or white, and not of orange or purple or shades in between. On constitutional questions the buck stops here. I think this court should have assumed that, responsibility and decided this case on the merits.

I fear that the majority of my brothers have wandered from the narrow path of statutory construction into the field of legislative tinkering.

I would decide the case on the merits and I would affirm.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    THE CORNING BANK v. Bobby RICE, Administrator of the Estate of Melvin RICE, and Marlin RICE
    82-189
    645 S.W.2d 675
    Supreme Court of Arkansas
    Opinion delivered February 7, 1983
    [Rehearing denied March 14, 1983.]

      Scott Manatt and Phillip Crego, for appellant.

      Gus R. Camp, for appellee Robert J. Rice, Adm’r.

      Joe Morphew, for appellee Marlin Rice.
   George Rose Smith, Justice.

Melvin Rice died intestate in April, 1981, survived by four children. At his death Melvin owned 11 certificates of deposit issued by the Corning Bank, totaling $39,525.08 and payable on Melvin’s death to his brother, the appellee Marlin Rice. A controversy arose between Marlin and Melvin’s administrator, because Melvin had not designated in writing, over his signature, that the CD’s were payable on his death to Marlin, as the statute and cases require. Ark. Stat. Ann. § 67-552 (e) (Repl. 1980); Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969); McDonald v. Treat, 268 Ark. 52, 593 S.W.2d 462 (1980).

To settle that dispute the bank filed this bill of interpleader, asking the court to determine ownership as between Marlin and the estate. Marlin, however, filed a counterclaim against the bank, seeking judgment for the face amount of the certificates on the ground that the bank had negligently failed to carry into effect Melvin’s intention that the certificates be made payable on his death to Marlin. This appeal by the bank is from a decree holding (a) that the bank is liable to the estate as the owner of the certificates and (b) that the bank is also liable to Marlin, as the third-party beneficiary of the bank’s contract with Melvin, for the amount of all the certificates except one, which was issued more than five years before Melvin’s death. Marlin cross appeals as to the excepted certificate. The bank argues several theories in its effort to escape double liability. Our jurisdiction is under Rule 29 (1) (c).

The facts are not in dispute. The bank never requested the purchaser of a CD to designate in writing the payable-on-death beneficiary of the CD. Melvin Rice was a regular customer of the bank up until his death, buying CD’s from time to time. On July 20,1978, he bought a $3,000 certificate payable to himself or on his death to Marlin. During that transaction, which was handled by Louise Coleman, a vice-president of the bank, he asked about his other certificates and learned that some were payable on his death to his son Robert and some to his brother Marlin. He directed that all of them be made payable to Marlin. Ms. Coleman made appropriate changes on the bank’s carbon copies of the various certificates. She asked Melvin to bring in the originals so that he could initial the changes on them as well. The chancellor found that he did bring in the originals, which is obviously true, because in every instance the change that was made on the original conformed exactly to the change on the bank’s copy, except that it was written on a different typewriter. Ms. Coleman conceded that the changes could have been made by someone else in the bank. That evidently happened, because the various changes could not have conformed exactly to the bank’s records unless they had been made at the bank. Certificates bought later by Melvin were made payable on his death to Marlin.

The present controversy arises solely because the bank did not require Melvin to comply with the statute by designating in writing that the certificates be payable on his death to Marlin. Ever since the Cook case was decided in 1969 we have consistently held that a payable-on-death certificate is not payable unless the holder signs some instrument to that effect. Hence the trial court was right in holding that the certificates now in issue are owned by Melvin’s estate. Indeed, the bank does not question that holding except by arguing that the bank should not be doubly liable.

The bank’s additional liability for its negligence is clear. Marlin’s cause of action as a third-party beneficiary is established by two similar cases. In Lovell v. Marianna Federal S. & L. Assn., 264 Ark. 99, 568 S.W.2d 38 (1978), we imposed liability in an analogous situation:

After all the deposit of funds in a joint account with right of survivorship under such circumstances is nothing more than a convenient way to plan one’s estate — it has sometimes been referred to as a ‘Poor Man’s Will.’ A bank holding out to the public that money could be so deposited and withdrawn is not in a position to allege fraud to protect it from its malfeasance ....

On facts similar to the case at bar the Court of Appeals held the bank liable to a third-party beneficiary of the mishandled transaction between the bank and the purchaser of the certificate, saying:

There was ample testimony to show that Rebecca Self intended that the three certificates were to pass to Barbara Ann Baker upon Mrs. Self’s death, and that Mrs. Self effectively conveyed that intention to appellee [the bank] .... The loss to appellant arose because of the failure of appellee to follow its own procedures.
The appellee is not required, or permitted, to give legal advice to its customers, but it does hold out to the public that money can be deposited and passed on in the way Rebecca Self attempted.

Baker v. Bank of Northeast Arkansas, 271 Ark. 948, 611 S.W.2d 783 (Ark. App. 1981).

We are not impressed by the bank’s argument that Marlin had to offer testimony that the bank holds itself out as competent to carry out the wishes of its customers in issuing certificates of deposit. A bank can certainly be expected to exercise ordinary care in handling its customers’ business. We agree with the trial court’s disposition of this argument:

The Corning Bank, as well as any banking institution who receives money from its depositors in exchange for certificates of deposit, does indeed hold itself out to issue the Certificate of Deposit in such manner as to comply with the wishes of the depositor. In this instance, Melvin Rice clearly intended that at his death his brother was to have the proceeds and the bank by the testimony of its own employees and former employees admits that it attempted to comply with his wishes. Unfortunately, the bank simply did not comply with the provisions of Section 67-552, Arkansas Statutes Annotated, and it is not incumbent upon the depositor to insist that the provisions of that statute are complied with because the average layman has absolutely no knowledge of the statute. On the other hand, every banking institution should have knowledge of any relevant statutory provision regarding banks in the State of Arkansas.

The bank’s other theories for reversal can be disposed of quickly. Inasmuch as the statute had been in force for years and had been construed in 1969 in Cook v. Bevill, supra, our present holding is in no way unfairly retroactive as to any vested right. As to the statute of frauds, the third-party beneficiary agreement did not have to be in writing, for the statute applies only to contracts incapable of being performed within a year. Reed Oil Co. v. Cain, 169 Ark. 309, 275 S.W. 333 (1925). Here the bank could of course have performed its contract had Melvin died before the expiration of a year.

The bank argues in its brief that it should not be liable twice for the same money. That argument misses the point. The bank has always been liable for the amount of the CD’s, which represented money belonging not to the bank but the purchaser. The only question is whether the bank should pay for its negligence. If not, it gets off scot-free from carelessness that caused a substantial loss to Marlin Rice. There is no double liability, only a single liability for negligence.

On cross appeal Marlin argues that the chancellor was wrong in holding that the statute of limitations bars Marlin’s cause of action upon the CD issued more than five years before Melvin’s death. That argument must be sustained. A statute of limitations does not begin to run until the plaintiff has a complete and present cause of action. Hunter v. Connelly, 247 Ark. 486, 446 S.W.2d 654 (1969). Marlin could not have asserted any cause of action upon the CD’s until Melvin's death, for until then Melvin was free to change the alternative payee or to cash the CD’s himself. Marlin also argues that the trial court should have allowed him more interest on his recovery, but his terse argument, unsupported by a clear statement of the facts or by any citation of authority, does not meet his burden of showing error.

Affirmed on direct appeal, reversed on cross appeal as to the amount of the bond disallowed by the trial court.

Adkisson, C.J., not participating.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I do not agree with the application of the law to the facts as stated in the majority opinion. I am at a loss to understand how this court could order a bank to pay the same money out twice when it is being held in trust for the rightful owner. The majority primarily anchor their opinion on Ark. Stat. Ann. § 67-552 (e) (Repl. 1980). In order to have a better understanding of this statute it is set out in pertinent part as follows:

. . . certificates of deposits may be held:
(a) If the person . . . purchasing such certificate of deposit, designates in writing to the banking institution that the ... certificates of deposit shall be payable to the survivor or survivors of persons named in such . . . certificates of deposit, then such . . . certificate of deposit and all additions thereto shall be the property of such persons as joint tenants with right of survivor-ship. Such ... certificates of deposit may be paid to or on the order of any one of such persons during their lifetime, unless a contrary written designation is given to the banking institution, or to or on the order of any one of the survivors of them after the death of any one or more of them. The . . . purchase of the certificate of deposit in such form shall be conclusive evidence in any action or proceeding to which either the association or surviving party or parties is a party, of the intention of all of the parties to the . . . cetificate of deposit to vest title to such... certificate of deposit and the additions thereto in such survivor or survivors. No banking institution paying any survivor in accordance with the provisions of this section shall thereby be liable for any estate, inheritance or succession taxes which may be due the State.
(b) . . .
(c) . . .
(d) . . .
(e) If a person opening or holding an account or certificate of deposit shall execute and file with the banking institution a designation that on the death of the person named as holder, the account or certificate of deposit shall be paid to or held by another person or persons, the account or certificate of deposit and any balance thereof which exists from time to time, shall be held as payment on death account or certificate of deposit and unless otherwise agreed between the person or persons opening the account and the banking institution.
(f) Upon the death of the holder of the ... certificate of deposit, the person or persons designated by him and who have survived him shall be the owners of the same (as joint tenants with right of survivorship if more than one) and any payment made by the banking institution to any of such persons shall be a complete discharge of the banking institution as to the amount paid.
(g) • • •
(h) . . .

The majority rely upon subsection (e) above. This section does not make sense to me, as it is not even a complete sentence. No court could validly make a decision based upon this particular section.

The majority also cite the cases of Cook v. Bevill, 246 Ark. 805, 440 S. W.2d 570 (1969), and McDonald v. Treat, 268 Ark. 52, 593 S.W.2d 462 (1980), as authority for the opinion. In reading Cook I am of the opinion that it is a mixture of the old law and new law and the law relating to savings and loan associations and that of banking associations. The facts in Cook were that the decedent, E. J. Bryeans, purchased two certificates of deposit. One was in his name alone and the other in the name of “E. J. Bryeans or Andy Bevill.” After Byreans’ death the administrator and Bevill became involved in an argument which resulted in the lawsuit. The banker testified at the trial that Bryeans’ intention was that Andy Bevill have the proceeds of the deposits made in the two names in the event of Bryean’s death. The court then went into a discussion of Act 260 of 1937 and Act 444 of 1965, which are codified in Ark. Stat. Ann. § 67-521 (Repl. 1980). The court also considered Act 78 of 1965 which was codified as Ark. Stat. Ann. § 67-552 (Repl. 1966), and which now appears as Ark. Stat. Ann. §67-521 (Repl. 1980). Both Act 260 of 1937, as amended, and Act 444 of 1965 deal with bank deposits in the name of two or more persons. Neither of these acts deals with certificates of deposits. The result of the holding in Cook is that there must be substantial compliance with the “designation in writing” requirements of Ark. Stat. Ann. § 67-552. The proceeds of the certificates of deposits were awarded Bevill because there had been no designation in writing authorizing payment of the certificates to Cook.

In McDonald v. Treat, supra, the decedent had a savings account in the savings and loan association. There was no document signed by the decedent as to how the account was to be paid upon her death. Nevertheless, the savings and loan paid the amount in the account to the decedent’s niece. The niece was ordered to restore the money to the estate. There we also held that there must be a designation in writing that the account is payable to someone other than the purchaser before such may be used in lieu of a will to transfer money to a survivor. We said in McDonald: “Thus what the new statutes did was to correct the earlier state of uncertainty by requiring that persons who resort to payable-on-death accounts or certificates designate in writing, over their signatures, just who is to receive the money at their death.”

Another case cited in the majority opinion is Lovell v. Marianna Federal S. & L. Ass’n., 264 Ark. 99, 568 S.W.2d 38 (1978). In Lovell, we were also dealing with certificates of deposit. Originally the deposits had been placed in an account in the name of R. L. Lovell or Ann P. Lovell. R. L. Lovell purchased the certificates of deposit and he later took the certificates to the association and had the name of his son, Jimmy Lonnie Lovell, added and caused the name of his wife, Ann Lovell, to be stricken from the card. R. L. Lovell signed each of the certificates and his signature was witnessed by a bank employee. The association’s employee pulled the ledger sheets, struck the name of Ann P. Lovell, inserted the name of Jimmy Lonnie Lovell and noted “changed 3-2-73.” R. L. Lovell initialed each change and affixed his signature to the card. The trial court awarded the proceeds to the widow, Ann Lovell, in an action wherein the association had interpleaded the certificates. We reversed and held that the certificates belonged to Jimmy Lovell.

I see no need to discuss the statute of limitations in any manner whatsoever. It is clear and obvious that it is the duty of a depositor to designate in writing the party he wishes to receive the proceeds in the event of his death. The statute provides that upon the death of the holder of such certificates the person or persons designated who have survived shall be the owners and payment to any such persons “shall be a complete discharge of the banking institution as to the amount paid.” None of the cases quoted above involve double payment by the savings institution.

The certificates of deposit are still intact. If they were to be paid to Marlin Rice, then the court should pay them to Marlin Rice. On the other hand, if there was not a “designation in writing,” then the proceeds should be paid to the estate of Melvin Rice. It is unconscionable, so far as I am concerned, to order the bank to pay twice. It is obviously the fault of Melvin Rice that he never completed his designation in writing. There is no dispute that both the decedent and the bank understood the certificates were to be paid to Marlin Rice upon the death of Melvin Rice. Even if the bank failed to do all they were supposed to do, there is no harm done. Had all the acts been completed which were necessary to effectuate the change, the certificates would have been the property of Marlin Rice. The estate would not have had the certificates if everything had been done to transfer them to Marlin. Equity treats as done that which ought to have been done. In my opinion, the evidence was sufficient to require a finding that failure to complete the transfer was the fault of the decedent. I do not see actionable negligence on the part of the appellant. Therefore, I cannot join the majority.