author:
Frank Holt, Justice.
      Carleton Harris, Chief Justice,

text:
    Ross Allen MILBURN v. STATE of Arkansas
    CR 76-122
    542 S.W. 2d 490
    Opinion delivered November 1, 1976 (In Banc)

      Skillman, Durrett & Davis, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of possession of marijuana with intent to deliver and his sentence was assessed at imprisonment for nine years in the Department of Correction and a fine of $15,000. Appellant first argues for reversal that the trial court erred in not granting his motion to suppress the items (marijuana) removed from the trunk of appellant’s car. Appellant claims there was no probable cause for the search at the time. We cannot agree.

At about midnight on an interstate highway, police stopped appellant for speeding after a chase of about four miles at a speed reaching 115 m.p.h. When appellant stepped from his car, he was in a staggering condition with a noticeable odor of alcohol and marijuana. After some resistance by the appellant, the officer frisked him, placed him in his patrol car, and asked him for his driver’s license. The appellant said his license was in his billfold laying on the seat of the car. When the officer went to the car and opened the door, “there was a strong pungent odor of smoke [coming] from the vehicle. On the seat, in the floor, were loose cigarette papers laying all around the car. The billfold was on the dash laying beside a bank bag half zipped up with a large amount of money [Si 1,480.02] bulging from the bank bag. I also noticed laying on the seat was a bond where he had been released that morning on possession of a controlled substance, St. Louis County, Missouri, I believe it was, on a fifteen hundred dollar bond.” When the officer mentioned finding the money in the car to the appellant, he kicked the door of the patrol car open, jumped out and refused to get back in the vehicle. Appellant was finally subdued and handcuffed by the officer and two other officers, who had arrived at the scene, and placed back in the patrol car. Thereupon the arresting officer, being trained in the discernment of marijuana, took appellant’s ignition key, unlocked the trunk and noticed marijuana in loose and brick form there. The officer relocked the trunk without removing anything and had the car towed in and impounded at the local couijty jail. The next day the contraband, weighing 9.1 pounds, was removed from the car in the presence of appellant pursuant to a search warrant, which appellant also attacks as jurisdictionally invalid.

All warrantless searches and seizures are not prohibited by our state and federal constitutions, only those which are unreasonable. An automobile, given probable cause, is subject to a warrantless search. Gordon v. State, 259 Ark. 134, 529 S.W. 2d 330 (1976); and Wickliffe & Scott v. State, 258 Ark. 544, 527 S.W. 2d 640 (1975). See also Carroll v. U.S., 267 U.S. 132 (1925); Chambers v. Maroney, 399 U.S. 42 (1970); and Coolidge v. New Hampshire, 403 U.S. 443, 463 N. 20 (1971). Here, the circumstances attending appellant’s apprehension and subsequent conduct, the detection by the officer of the odor of marijuana in appellant’s vehicle and on his person, and the items observed in the front seat of appellant’s car were amply sufficient to justify probable cause for a warrantless search of his vehicle. Gordon v. State, supra. In the case at bar, since the initial intrusion was clearly justified by probable cause, the subsequent seizure of the contraband the next day comports with constitutional standards. The subsequent search was a continuation and consummation of a valid initial intrusion. Wickliffe & Scott v. State, supra. Therefore, here, we need not determine the asserted invalidity of the warrant used in the subsequent seizure of the contraband.

Appellant next contends that the contraband was improperly admitted into evidence because the chain of custody was incomplete as to whether the substance removed from his car the morning after his arrest was the same substance first observed by officers in the limited search at the time of his arrest. The record shows that following the initial discovery of the marijuana, appellant was transported to the local jail and one officer remained with appellant’s car until a wrecker arrived. This officer followed the wrecker which towed appellant’s car to the impoundment lot at the local jail where it was stored inside the locked perimeter of the fenced storage area. The lot was routinely checked approximately every hour. The arresting officer was present during the search of appellant’s car the next morning. He testified that he removed, in the presence of appellant, “a box containing the vegetable substance that I had found the night before.” The substance was given by him to the county sheriff who kept it locked in his office until he personally delivered it to a Mr. Raborn at the Arkansas Department of Health for analysis. Mr. Raborn conducted the required tests on the substance, logged and stored the contraband in his locked file until produced and identified by him at appellant’s trial.

“The purpose of the chain of identification is to prevent the introduction of evidence which is not authentic.” Fight v. State, 254 Ark. 927, 497 S.W. 2d 262 (1973). In Wickliffe & Scott v. State, supra, we said:

To establish a chain of custody of articles to be introduced in evidence, it is not necessary to exclude all possibilities of tampering but the court need only be satisfied that in reasonable probability the articles had not changed in important aspects.

Here, we are of the view that the trial court did not err in admitting into evidence the marijuana since in all reasonable probability the contraband removed from the trunk of appellant’s car was the same as observed there the previous night. The jury was free to weigh and disregard the evidence as a result of the asserted deficiency.

Appellant next contends that the trial court erred in not instructing the jury “on the lesser misdemeanor charge of possession” of marijuana. We must agree. An accused may be convicted of a lesser offense than charged when both belong to the same generic class, the commission of the higher may involve commission of the lower, and the charge of the higher contains all the substantial allegations necessary to let in proof of the lesser. Caton v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972). There we said:

This court has zealously protected the right of an accused to have the jury instructed on lesser offenses included in a greater offense charged. We have consistently held that a trial court commits reversible error when it refuses to. give a correct instruction defining a lesser included offense and its punishment when there is testimony on which the defendant might be found guilty of the lesser rather than the greater offense.

Here, the offense charged and the evidence adduced require the giving of the requested instruction because there is evidence of the lesser included offense. The state’s own evidence supplies the evidentiary requirement. The officer observed within the appellant’s car “scattered cigarette papers.” Upon his searching the appellant’s person at the jail, he found a “roach clip” in appellant’s sock and approximately one ounce of marijuana secreted in his underwear. The “roach clip” is used by marijuana smokers in order to smoke “a marijuana cigarette butt” without burning the fingers. There was a “strong pungent odor” of marijuana smoke in appellant’s vehicle and on his person.

Ark. Stat. Ann. § 82-2617 (d) (Supp. 1975) provides that the mere possession of a controlled substance, marijuana here, in excess of one ounce “shall create a rebuttable presumption that such person possesses such controlled substance with intent to deliver.....” Here, pursuant to the statute, the theory of the state’s case was that appellant possessed marijuana with intent to deliver. Certainly, it must be said there is an abundance of testimony to sustain the finding of the jury to that effect. However, the theory of the defense, as enunciated by the requested instruction, was that the defendant’s possession constituted a misdemeanor. As indicated, we hold the appellant was entitled to have the jury consider his version. Bedell v. State, 257 Ark. 895, 521 S.W. 2d 200 (1975); and Fike v. State, 255 Ark. 956, 504 S.W. 2d 363 (1974). See also Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634 (1973). In these cases we again recognized that it was solely the prerogative of the jury, as the trier of the facts, to evaluate the conflicting evidence and draw its own inferences as to why appellant had the marijuana in his possession. Furthermore, § 82-2617 (d) provides, as indicated, that the mere possession in excess of one ounce of marijuana, as here, constitutes a presumption of intent to deliver, although it is a rebuttable presumption. It appears that it could be validly argued that this presumption becomes conclusive in the absence of the lesser included offense instruction which was sought here. Stone v. State, supra.

Appellant finally asserts that the trial court erred in giving an instruction relating to the statutory inference provided by § 82-2617 (d), supra. Appellant contends that the instruction constituted a comment on the evidence. The instruction reads :

The amount or quantity of any marijuana which you find beyond a reasonable doubt to have been possessed by the defendant, if any, is evidence which goes to you for your consideration along with all the other facts and circumstances of the case in determining the purpose or intent for which the marijuana was possessed.

The instruction is not in the verbatim statutory language which we disapproved in French v. State, 256 Ark. 298, 506 S.W. 2d 820 (1974). Here, the instruction tells the jury that if it found appellant possessed the marijuana, the amount so possessed could be considered along with all the other facts and circumstances of the case as to the purpose or intent of appellant’s possession. This type of instruction leaves guilt or innocence solely to the jury and allows it to draw an inference which is allowable by the statute. See Petty v. State, 245 Ark. 808, 434 S.W. 2d 602 (1968). A.M.I. Civil 2d 703.

For the error indicated, the judgment is reversed and the cause remanded.

Harris, C.J., dissents.

Carleton Harris, Chief Justice,

dissenting. I would affirm this case because, in my view, there was no evidence whatsoever that Milburn only possessed the marijuana for his own use; in fact, I consider the evidence as definitely reflecting the contrary. The amount in his possession was 9.1 pounds which, as pointed out by the state in its brief, is more than 140 times the amount which the legislature declared sufficient to create a presumption of intent to deliver; not only that, but there was a bag of money on the floor containing 111,480.00.

The majority state that the theory of the defense was that the defendant’s possession constituted a misdemeanor and he was entitled to have the jury consider that version. I would agree if there had been any evidence reflecting that Milburn only had the marijuana for his own consumption, but I do not find such evidence. The presumption of intent to deliver where one possesses more than one ounce of marijuana is rebuttable, i.e., it may be overcome by evidence sufficient to create a reasonable doubt. The majority mention that scattered cigarette papers were found within the car; a “roach clip” and approximately an ounce of marijuana were secreted in his clothing, and there was an odor of marijuana smoke in the vehicle. Several cases are then cited in support of the position taken and it is stated:

In these cases we again recognized that it was solely the prerogative of the jury, as the trier of the facts, to evaluate the conflicting evidence and draw its own inferences as to why appellant had the marijuana in his possession. (My emphasis.)

The fact that appellant had also been smoking marijuana does not, in my opinion, constitute conflicting evidence. After all, one can both smoke it, and deliver it, and this has been true in several cases before this Court.

I would affirm.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Ronald Gene KILLION v. CITY of Waldron
    CR 76-142
    542 S.W. 2d 744
    Opinion delivered November 8, 1976
    Appellant, Pro Se.

      Donald Goodner, for appellee.
   George Rose Smith, Justice.

The appellant was fined in the Waldron municipal court for having failed to stop for a red traffic light. Upon trial de novo in the circuit court the jury returned a verdict of guilty and imposed a $25 fine. This appeal is evidently prosecuted as a matter of principle.

The appellant asserts, although the record does not clearly show, that the trial in the municipal court consisted of this statement by the municipal judge: “The officer is going to say that you did run the light, you will say you did not. I will find you guilty, and I know that you will appeal. I do not wish to waste my time. I find you guilty; now file your appeal.” An appeal to circuit court was duly taken.

If the appellant’s version of what occurred in the municipal court is correct, the municipal judge clearly deserves censure for conduct wholly lacking in that patience and impartiality which should characterize all judicial proceedings. Nevertheless, we cannot follow the appellant’s argument that the circuit court was somehow deprived of jurisdiction to hear the matter. It is t'rue that the municipal court had exclusive jurisdiction in the first instance over violations of city ordinances. Ark. Stat. Ann. § 22-709 (Repl. 1962). That jurisdiction, however, was exercised by the municipal court’s finding of guilty and its imposition of a fine. Even though the court’s exercise of its jurisdiction was erroneous, owing to its refusal to hear testimony, the statute provides for an appeal to the circuit court, where the accused is entitled to an entirely new trial, “as if no judgment had been rendered” in the municipal court. Ark. Stat. Ann. § 44-509 (Repl. 1964). It appears, that the appellant received a fair trial in the circuit court — a trial that was not influenced or affected by whatever may have taken place in the municipal court. We find no basis for setting aside the circuit court’s judgment.

Affirmed.

We agree. Harris, C.J., and Fogleman and Jones, JJ.


text:
    Ronald MASON et ux v. Lindsey S. RUSSENBERGER et al
    76-126
    542 S.W. 2d 745
    Opinion delivered November 8, 1976 (In Banc)

      Richard J. Orintas, for appellants.

      Matthews, Turtle, Oslerloh & Weber, for appellees.
   George Rose Smith, Justice.

The appellants, Mr. and Mrs. Mason, brought this action for damages arising from the appellees’ asserted failure to complete a contract by which they were to construct a dwelling house for the Masons. The trial judge directed a verdict for the defendants, on the ground that the plaintiffs’ proof of damages was insufficient to enable the jury to fix the pecuniary loss. For reversal it is contended that the proof was sufficient.

The trial judge was right. The measure of damages in a case of this kind is the difference between the unpaid portion of the contract price and the reasonable cost of completing the construction. Sternberg Dredging Co. v. Dawson, 171 Ark. 604, 285 S.W. 32 (1926); Northern Constr. Co. v. Johnson, 132 Ark. 528, 201 S.W. 510 (1918). At the trial these appellants offered no evidence whatever that would have enabled the jury to fix the amount of damages in dollars and cents.

Even so, the appellants, citing Crow v. Russell, 226 Ark. 121, 289 S.W. 2d 195 (1956), argue that if the loss is shown with certainty the damages need not be proved with exactness. That case is distinguishable, however, not only because it involved a loss of future profits but also because the opinion recites a number of dollars-and-cents figures that were considered by the jury. The case at hand is similar to Tolbert v. Samuels, 229 Ark. 676, 317 S.W. 2d 715 (1958). There we upheld the chancellor’s refusal to award damages, because “there is no evidence at all by which we could attempt to determine the pecuniary loss that resulted from this injury. That damage of this kind may be hard to prove in dollars and cents does not justify our reaching into the air for a figure that would represent only an unsupported guess or\ our part.” That same difficulty would have confronted the jury in the present case. Moreover, an experienced builder would presumably have been able to estimate the cost of completing the house for the Masons.

We note that the appellants did establish a breach of contract on the part of the contractors, All-Servis Builders, Inc., and Albert Cullipher, and therefore might have sought nominal damages. The point is not before us, however, as no such request was made in the trial court, nor has the point been argued on appeal. Even if the issue had been raised, we do not remand a cause for a new trial merely because nominal damages were not awarded. Crutcher v. Choctaw, O. & G. R.R., 74 Ark. 358, 85 S.W. 770 (1905).

Affirmed.

Fogleman and Byrd, JJ., would award nominal damages and costs.


author: John A. Fogleman, Justice.

text:
    Leo WINTERS d/b/a W W FEEDERS a/k/a W. W. CATTLE COMPANY v. Major LEWIS, d/b/a MAJOR LEWIS LIVESTOCK AUCTION SALES
    76-102
    542 S.W. 2d 746
    Opinion delivered November 8, 1976

      Clark, McNeel & Watson, for appellant.

      Hartze & Burton, for appellee.
   John A. Fogleman, Justice.

This appeal was taken from a default judgment entered against appellant. We find that the judgment was erroneously entered and reverse.

Appellee Major Lewis, doing business as Major Lewis Livestock Auction Sales, filed its complaint against Ed Hall, W W Feeders a/k/a W W Cattle Company, and others, alleging that all the defendants were indebted to Lewis in the sum of $32,308.29 for cattle purchased as shown by a statement of account exhibited with the complaint. Hallous Garrett was also a plaintiff and alleged that Ed Hall was indebted to him in the sum of $2,100 for freight and hauling expense ’’surrounding” the purchase of cattle. It was alleged that Ed Hall was agent for W W Feeders a/k/a W W Cattle Company. Judgment in favor of the plaintiffs for $34,408.29 was sought against all defendants. This complaint was filed on August 6, 1975. An amendment to this complaint was filed August 15, 1975. In this amendment, the plaintiffs alleged that appellant Leo Winters was a resident of the State of Oklahoma; that W W Feeders a/k/a W W Cattle Company was, in fact, Leo Winters d/b/a W W Feeders a/k/a W W Cattle Company; and that Leo Winters d/b/a W W Feeders was indebted to the plaintiffs in the sum of $34,408.29 for cattle sold and delivered to him and for which he had not paid. No other allegation was made as to the cause of action and no reference was made to the statement of account exhibited with the original complaint. The amendment contained these allegations:

That the plaintiffs should be allowed to amend their complaint to include the defendant Leo Winters as a party defendant.
That this court have jurisdicltion over the defendant by Virtue of his business dealing within the State of Arkansas personally and by his agents under Arkansas Stats. 27-2501 et seq.

Thereafter summons was issued and was served on August 20, 1975, upon Winters by the sheriff of Oklahoma County, Oklahoma in that county, pursuant to Ark. Stat. Ann. § 27-2501 et seq (Supp. 1975). A few days prior to this service, Winters had been served with summons on the original complaint. According to the testimony of Winters and his Oklahoma City attorney, Winters had delivered the summons to which the original complaint was attached to this attorney, who then employed an Arkansas attorney to file an answer. This answer and a separate motion to dismiss were filed on behalf of W W Feeders a/k/a W W Cattle Company on September 10, 1975. The answer consisted of a denial that Ed Hall was agent for W W Feeders a/k/a W W Cattle Company, and a general and specific denial of each and every other material allegation of the complaint. The motion to dismiss was based upon allegations that W W Feeders a/k/a W W Cattle Company was not an entity that could sue or be sued.

On October 23, 1975, Leo Winters filed an answer, in “his own right,” in which he alleged that he had previously answered the complaint in the name of W W Feeders a/k/a W W Cattle Company. In this answer Winters denied that Hall was an agent for Leo Winters d/b/a W W Feeders a/k/a W W Cattle Company and generally and specifically denied each and every other material allegation of the complaint.

On December 19, 1975, the plaintiffs filed a motion for default judgment, alleging that Leo Winters d/b/a W W Feeders a/k/a W W Cattle Company was served with a copy of the complaint and amended complaint on August 20, 1975, but that Winters had failed to file a timely answer to the complaint and amended complaint and a hearing was held on this motion on the day it was filed. It was granted. The judgment for $34,408.29 and interest was entered on January 16, 1976.

After the hearing, Winters testified that W W Cattle Company was not a corporation, but that he did business under both that name and as W W Feeders. He testified that he was served with summons and a copy of the complaint in Oklahoma sometime in August, 1975. He also admitted having been served a few days later on the same cause of action, but said that the pleading then served appeared to be identical to the complaint originally served on him and he so advised his Oklahoma City attorney. This attorney, Robert C. Grove, testified that he examined the pleading served on Winters with the second summons and since it appeared to him to be identical with the original complaint, he did nothing more, knowing that Arkansas counsel had already filed an answer to the complaint. Winters testified that the officer who served him with the summons at his office in Oklahoma City had apologized for bothering him again, saying that the summons was exactly like those previously served on him. The officer’s affidavit proving service states that he served the complaint in the case, but does not mention the amendment.

It clearly appears that the amendment added nothing to the original complaint except identification of appellant Winters as W W Feeders and W W Cattle Company. It seems clear that process on the original complaint was served on Winters although that summons and its return do not appear to be in the record. The amendment did not state any new or different cause of action or any new factual basis for the recovery sought. The answer to the original complaint was timely filed. The second answer raised no issue not previously raised by the previous answer. It admitted the only new allegation which had been made by the amendment to the complaint. This answer was never stricken, but seems to have been totally disregarded in awarding the default judgment, apparently on the basis that it was not timely.

The default judgment recites that Winters is indebted to Major Lewis d/b/a Major Lewis Livestock Auction Sales and Hallous Garrett in the sum of $34,408.29 with interest. The only witnesses who testified were Winters and his attorney Grove, neither of whom admitted the indebtedness. The judgment was based only upon the allegations of the plaintff’s pleadings and the unverified statements and cancelled checks exhibited with the original complaint, which was also unverified.

Default judgments are not the favorites of the law. Sharp v. Sharp, 196 Kan. 38, 409 P. 2d 1019 (1966); Springer Corporation v. Herrera, 85 N. M. 201, 510 P. 2d 1072 (1973); Ryan v. Collins, 481 S.W. 2d 85 (Ky. 1972); Lambert Bros. Inc. v. Tri City Construction Co., 514 S.W. 2d 838 (Mo. App., 1974). Lindsey v. Drs. Keenan, Andrews and Allred, 118 Mont. 312, 165 P. 2d 804, 163 ALR 487 (1946); Rogers v. Lyle Adjustment Co., 70 N.M. 209, 372 P. 2d 797 (1962); Westring v. Cheyenne National Bank, 393 P. 2d 119 (Wyo., 1964). The granting of a default judgment is a harsh and drastic action and may deprive a party of substantial rights. Lambert Bros. Inc. v. Tri City Constructiion Co., supra; Janoske v. Porter, 64 F. 2d 958 (7 Cir., 1933); Widicus v. Southwestern Electric Cooperative, Inc., 26 Ill. App. 2d 102, 167 N.E. 2d 799 (1960); Springer Corp. v. Herrera, supra; In Re M__ & M__, 446 S.W. 2d 508 (Mo. App. 1969); Holder Turpentine Co. v. M. C. Kisser Co., 68 Fla. 312, 67 S. 85 (1914). Such a judgment should only be granted when strictly authorized and when the party to be defaulted should c jariy know that he is subject to default if he does not act in a certain manner. Janoske v. Porter, supra; State of Missouri v. Fidelity and Casualty Co., 107 F. 2d 343 (8 Cir., 1939); Holder Turpentine Co. v. M. C. Kisser Co., supra. They are to be avoided if fairly possible. Sawyer v. Sawyer, 261 Iowa 112, 152 N.W. 2d 605 (1967).

This is not to say that our governing statutes leave as broad a latitude of discretion in the granting or denial of a default judgment as our courts once had, or that the effect of the statutes should be diluted or diminished. See Ark. Stat. Ann. § 29-401 (Repl. 1962); Moore v. Robertson, 242 Ark. 413, 413 S.W. 2d 872. Still, we have found substantial compliance by a defendant with statutory requirements to be sufficient to avoid the harshness of a default judgment in several instances. See Cummings v. Lord’s Art Galleries, 227 Ark. 972, 302 S.W. 2d 792; Gent v. State, 239 Ark. 474, 393 S.W. 2d 219, rev. on other grounds, 386 U.S. 767, 18 L. Ed. 2d 515, 87 S. Ct. 1414; Easley v. Inglis, 233 Ark. 589, 346 S.W. 2d 206; Barkis v. Bell, 238 Ark. 683, 384 S.W. 2d 269; Fitzwater v. Harris, 231 Ark. 173, 328 S.W. 2d 501. See also, Arkansas Electric Co. v. Cone-Huddleston, Inc., 249 Ark. 230, 458 S.W. 2d 728; Sparks v. Shepherd, 255 Ark. 969, 504 S.W. 2d 716. And the filing of any responsive pleading, even one which does not go to the merits of the case, has been held sufficient compliance to prevent a default. West v. Page, 228 Ark. 13, 305 S.W. 2d 336 (1957); Cummings v. Lord’s Art Galleries, supra; Fitzwater v. Harris, supra. See also, Gent v. State, supra.

For some reason appellee did not move to strike the answer of October 23 and did not move for a default judgment until December 19. This was virtually three months after they would have been entitled to judgment even if the Second service on Winters is considered as the date from which the time for pleading was to be determined and the first answer disregarded. It was nearly two months after Winters’ answer to the amended pleading was filed. When we consider the entire record, including the answer to the complaint, the limitation of the amendment to identification of W W Feeders, the admissions in Winters’ subsequent answer, and the lapse of time before a default was sought, we find that there was a waiver of strict compliance with the statutory requirements and that there was substantial compliance sufficient to bar a default judgment. See Utley v. Heckinger, 235 Ark. 780, 362 S.W. 2d 13; Fitzwater v. Harris, supra.

We have held that where there is some justification for a belief on the part of a defendant that he has filed a pleading meeting the statutory requirements a default judgment should not be granted. Barkis v. Bell, supra. See also, Arkansas Electric Co. v. Cone-Huddleston, 249 Ark. 230, 458 S.W. 2d 728. Either a general or special appearance is sufficient compliance. Ark. Stat. Ann. § 29-401; Fitzwater v. Harris, supra.

Even though Winters was sued under a trade name, we do not take that to be necessarily fatal to the cause of action or to permit the answer filed by W W Feeders to be ignored in deciding whether there was substantial compliance with statutory pleading requirements.

When a defendant is sued under a trade name, the complaint is amendable by alleging and asserting the true name of the individual doing business under that name. Manistee Mill Co. v. Hobdy, 165 Ala. 411, 51 S. 871, 138 Am. St. Rep. 73 (1910); Mauldin v. Stogner, 75 Ga. App. 663, 44 S.E. 2d 274 (1947). Since service was had on Winters for W W Feeders and Winters was the individual doing business as W W Feeders, the amendment to the complaint only corrected a misnomer and did not substitute a new party. Thune v. Hokah Cheese Company, 260 Iowa 347, 149 N.W. 2d 176; Box v. Boilermaker National Health & Welfare Fund, 47 Ala. App. 266, 253 So. 2d 326 (1971); Manistee Mill Co. v. Hobdy, supra. Appellant was before the court at all times under his trade name and the amendment only clarified his identity by adding his real name. Thune v. Hokah Cheese Company, supra. Upon this rationale, an amendment such as that made here has been held not to constitute a new action which would have been barred because the statute of limitations ran between the filing of the original complaint and the filing of the amendment. Manistee Mill Co. v. Hobdy, supra. Cf. Evans v. List, 193 Ark. 13, 97 S.W. 2d 73; Williams v. Edmondson, 257 Ark. 837, 520 S.W. 2d 260.

Under our statute, the court may, in the furtherance of justice and on such terms as may be proper amend any pleadings by correcting a mistake in the name of any party, or when the amendment does not change the claim or defense, by conforming the pleading or proceeding to the facts proved. Ark. Stat. Ann. § 27-1160 (Supp. 1975). It is consistent with both the spirit and letter of our statutes governing pleadings to consider, under the circumstances prevailing, that the amendment to the complaint in this case (which raised no new issue but simply corrected the name of the defendant) related back to the original complaint, so that a default judgment was barred by the original answer. If the bar of the statute of limitations may be avoided by such means, the declaration of a default should, by a similar treatment, be prevented.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

We agree: Harris, C.J., and George Rose Smith and Jones, JJ.


text:
    Raymond OLLES and Richard ANDERSON v. STATE of Arkansas
    CR 76-130
    542 S.W. 2d 755
    Opinion delivered November 8, 1976

      Harold L. Hall, Public Defender, by '.John W. Achor, Chief Dep. Public Defender, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Terry Kirkpatrick, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellants were convicted of burglary of the residence of Jimmy “Red” Jones in Perry County and of grand larceny of property taken from that house. Appellants contend that there was insufficient evidence to support the verdict of guilt, and we agree, insofar as Raymond Olles is concerned. We find sufficient evidence as to Anderson’s guilt.

The testimony of Sue Markham, a participant in the crimes, would support the verdict, if this were sufficient. The testimony of an accomplice must be corroborated by other evidence tending to connect the defendant with the commission of the offense and it is not sufficient to show that the offense was committed and the circumstances of the offense. Ark. Stat. Ann. § 43-2116 (Repl. 1964). The corroborating evidence must be sufficient to establish the commission of the offense and the connection of the accused therewith if the testimony of the accomplice is eliminated from the case. Prather v. State, 256 Ark. 581, 509 S.W. 2d 309. The evidence connecting the accused with the crime must be independent of the testimony of the accomplice. Anderson v. State, 256 Ark. 912, 511 S.W. 2d 151; Jackson v. State, 256 Ark. 406, 507 S.W. 2d 705. It may be circumstantial, but it must be substantial. Jones v. State, 254 Ark. 769, 496 S.W. 2d 423. Even though it need only tend to connect the accused with the crime, it must do more than raise a suspicion of guilt. Prather v. State, supra. It need not be sufficient, in and of itself, to sustain a conviction and it may be slight and not altogether satisfactory and convincing, if substantial. Klimas v. State, 259 Ark. 301, 534 S.W. 2d 202. It must, however, be of a substantive character (Yates v. State, 182 Ark. 179, 31 S.W. 2d 295), i.e., it must be directed toward proving a fact in issue, not simply toward discrediting a witness or corroborating his testimony. Black’s Law Dictionary, 4th Ed.; Zimmerman v. Superior Court, 98 Ariz. 85, 402 P. 2d 212, 18 ALR 3d 909 (1965). See also, State v. Fitch, 162 S.W. 2d 327 (Mo. App., 1942); Kitchen v. Commonwealth, 291 Ky. 756, 165 S.W. 2d 547 (1942); Foster v. Copeland, 27 Tenn. App. 777, 159 S.W. 2d 96 (1942).

When we eliminate the testimony of Sue Markham, the other evidence clearly shows that a burglary and a theft amounting to grand larceny were committed. The evidence connecting appellant Olles with the crime does no more than raise a suspicion of guilt. As to Anderson, the only independent evidence to connect him with the crime is a statement he made to an officer and his own testimony. But the acts, conduct and declarations of the accused before or after the crime, including his testimony at the trial may furnish the necessary corroboration. Long v. State, 192 Ark. 1089, 97 S.W. 2d 67; Stroud v. State, 167 Ark. 502, 268 S.W. 850; Mallett v. State, 165 Ark. 613, 263 S.W. 384; Ford v. State, 205 Ark. 706, 170 S.W. 2d 671; Dickson v. State, 197 Ark. 1161, 127 S.W. 2d 126; Russell v. State, 97 Ark. 92, 133 S.W. 188.

Perry County Deputy Sheriff Clyde Booher testified that when he asked Anderson if he helped burglarize Jones’ home, Anderson answered, “I don’t know. I guess so. I was drinking at the time.” Anderson testified at the trial that he was so drunk he remembered nothing from the time he got into the back seat of an automobile with Sue Markham and Raymond Olles on the evening of the burglary and until he “awoke” when they were near the Arkansas River and Sue was cooking some eggs. Booher had testified that Anderson told him that he remembered leaving with Sue and Raymond Olles and being under a building which was “high off the ground” down along the river, and cooking some eggs. The officer went to such a place, not identified, and found eggshells on the ground.

Anderson’s wife testified that when she got home from work at 10:30 p.m. on the night of the burglary there was a box of clothes, sheets, pillow cases and towels in the house which had not been there earlier. She said that when Anderson got up the next morning he just told her there was a box of clothes there in the house. Anderson himself testified that he told the officers some sheets “stayed out there” on his porch. He said he went out the next morning when he sobered up and there was a box of clothes in the yard, folded up in a long, pasteboard box, and there was a little piece of copper wire laying out in the driveway. Mrs. Anderson said that she started using the clothing. The owner testified that the property stolen included certain ladies’ garments and a heavy cardboard box 36 inches wide, 24 inches deep and 48 inches long containing approximately 14 sheets, 15 pillow cases and 24 towels.

Sue Markham testified that she, Raymond Olles, with whom she was living, and Richard Anderson, her uncle, had gone to the Jones residence, where Olles and Anderson got out of the car, went to the house and brought back a couple of boxes of “stuff” and put them in the car. She said that Anderson made two or three trips, after which Olles and Anderson got in the car with her and the three went down to the river to a house built up on poles above the ground where they cooked some hamburger meat and boiled two dozen eggs. They then went by Anderson’s home where he unloaded a box, after which Olles and Markham went home.

The possession of the stolen property would not be sufficient, standing alone, to corroborate the testimony of the accomplice, because the property at the Anderson house was not sufficiently identified at the trial. See Scott v. State, 63 Ark. 310, 38 S.W. 339. Still this evidence showing that articles of the type of those stolen mysteriously appeared in Anderson’s possession on the night of the burglary, without any explanation except that Anderson claimed to be drunk and ignorant of their source, is certainly a circumstance to be considered in determining whether there is a chain of circumstances making the corroborating evidence sufficient. See King v. State, 254 Ark. 509, 494 S.W. 2d 476.

The circumstances, coupled with Anderson’s own statements putting him in the automobile with Sue Markham and Raymond Olles immediately before the burglary and at the house along the river where eggs were cooked by Sue immediately after the burglary, constituted substantial circumstantial evidence tending to connect Anderson with the crime sufficient to warrant submission of the question to the jury. Hubbard v. State, 258 Ark. 472, 527 S.W. 2d 608 [and State v. Bassett, 86 Idaho 277, 385 P. 2d 246 (1963) therein cited]; Shaw v. State, 133 Ark. 599, 202 S.W. 704; Cook v. State, 182 Ark. 1185, 31 S.W. 952; Middleton v. State, 162 Ark. 530, 258 S.W. 2d 995; Yates v. State, supra, 182 Ark. 179; Stout v. State, 249 Ark. 24, 458 S.W. 2d 42. Since the accomplice was corroborated as to particular material facts, the jury could infer that she spoke the truth as to all. Payne v. State, 246 Ark. 430, 438 S.W. 2d 462.

We are unable to find substantial evidence tending to connect Olles with the crimes. The fact that an officer found eggshells at a house similar to that where Sue Markham said she and Olles had cooked eggs after the burglary cannot be considered as substantive evidence, even though it tends to be corroborative of her testimony. Even if we considered Anderson’s testimony as connecting Olles with the crime, the testimony of one accomplice cannot be corroborated by another. Edmondson v. State, 51 Ark. 115, 10 S.W. 21; Melton v. State, 43 Ark. 367. Otherwise the only circumstance connecting Olles with the offenses is that some of the merchandise stolen was recovered from the home of Olles and Sue Markham at 3814 Shackleford Road in Little Rock, after he had been arrested on a warrant issued on another charge. Possession of stolen property by the accused is a proper circumstance to consider in determining whether there was evidence tending to connect him with the crimes of burglary and grand larceny. Klimas v. State, supra, 259 Ark. 301. But the mere fact that several days after Olles had been arrested and incarcerated some of the stolen goods were recovered from the dwelling shared by the accused and Sue Markham, whose participation in the crime was admitted, is not sufficient corroboration, standing alone, even though it certainly would arouse a suspicion. In this respect, there is a similarity to such cases as Cockrell v. State, 256 Ark. 19, 505 S.W. 2d 204 and Pitts v. State, 247 Ark. 434, 446 S.W. 2d 222. In Cockrell, we held that the mere fact that stolen guns were found in the trunk of the accused’s automobile was, not sufficient corroboration of the testimony of an accomplice who lived with the accused and had free use of the car, especially when the accused was at work.

There is another point for reversal we must consider as to Anderson. He argues that he was incapable of having committed the crimes because he was so intoxicated at the time that he could not have entertained the specific intent to commit burglary or larceny. He contends that the undisputed evidence clearly establishes this defense. Of course, voluntary intoxication is not a defense, even though it may produce a form of “temporary insanity” or render the person charged unconscious of what he is doing. Robertson v. State, 212 Ark. 301, 206 S.W. 2d 748; Wood v. State, 34 Ark. 341. Still, when an offense can be committed only by doing a particular thing with a specific intent, it may be shown that an accused was so drunk at the time of the crime that he could not have entertained or formed the necessary intent, but the determination whether there was that degree of intoxication is solely within the province of the jury. Stevens v. State, 246 Ark. 1200, 441 S.W. 2d 451.

Undoubtedly, Anderson had been drinking beer in large quantities before and after the crimes. Sue Markham and Anderson’s aunt (neither of whom was a medical expert) testified that Anderson had Huntington’s Chorea and that one who has this disease does not know or remember what he is doing or has done, after drinking. Markham testified that he “passed out” on the way to Perry County, but that he made two or three trips to the Jones house and that he unloaded a box when she and Olles took him to his home. Even though Anderson testified that he did not know how the box got there, he did tell his wife of the presence of the box and she later used some of the contents. In Wood v. State, supra, we quoted authorities pointing out that, if one who is too drunk to entertain the specific intent to steal, relinquishes property taken by him before the intent could arise in his mind, there is no larceny. Despite Anderson’s protestations that he knew nothing of the crimes, the question of intent was still for the jury’s determination.

There remains another point affecting Olles which will arise on a new trial. He contends that evidence obtained by Deputy Sheriff Booher from his residence was erroneously admitted into evidence as the fruit of an illegal search. A motion to suppress this evidence was made and a pretrial hearing was held in camera, but the motion was denied. It is appellant’s contention that the search and seizure resulted from an earlier “illegal” entry into Olles’ place of residence by the officer. We find no merit in this contention, because we cannot say that the circuit judge’s findings of fact are clearly against the preponderance of the evidence.

Booher testified substantially as follows:

Olles told me that he lived at 3814 Shackleford Road when I arrested him. I went to the house there with Raymond Olles’ father. I don’t remember the date but it was after Olles had been arrested on another charge. The senior Olles asked a Mrs. Speigel, the lady who owned the house, about Raymond’s gun, saying that he was afraid someone might steal it. She told him the house was open and to go out there and get the gun. I went in the house with him, but I didn’t see anything. The place was pretty badly torn up. I had no permission to enter from Raymond Olles or Sue Markham. I just went in there with Raymond’s father. He took some jumper cables which were just inside the door on the right, saying they were his. I did not try to stop him. I had no authority there. Mrs. Speigel gave us permission to go in.
A few days later (November 12) I went back to this residence to talk to Sue Markham, who lived there with Raymond Olles, about the burglary. She and her sister were there and she invited me in. I talked with her for a few minutes, advised her of her rights, told her that she was accused in a burglary, and she signed a statement and gave me permission to search. I asked her about the Jimmy “Red” Jones incident and she said, “I’ve got some of his stuff here, part of it.” She signed papers giving me the authority to search the house, but I did not search it. She gave me the merchandise and I took it back to Perryville. At first, Sue Markham said she didn’t know anything about the burglary, but I didn’t force her into answering any questions. We had a very cordial conversation. I talked to her at some length. She went into details and it took some time to write it all down. She seemed intelligent enough to me.

Sue Markham testified reluctantly. She was called by the court as a witness. When asked what was said when Booher talked to her about the Jones burglary, she responded:

Well, at first I, see, I said I didn’t know anything about it, then he said that, “Well, we’ve been up to Raymond, I and Raymond’s daddy have come up here and you wasn’t at home and we walked in.” íle said that his daddy was just looking for the gi^n and he said, “I know you got the stuff,” he said, “but is it all here,” and then, I mean, since he already knew, I thought well, I’d return the stuff.

She said Booher had seen the toaster and electric blender while there on the second visit and asked her if they came from the Jones house and she told him, “Yes, sir.” She admitted that she had been advised of her rights. On cross-examination by appellants’ counsel, the following questions were propounded and answers given:

Q. - - and it was after Deputy Booher told you that he’d been in your house and he’d seen the stuff there, that he knew it was there, that you told him about it, wasn’t it?
A. Yes, sir.
Q. He told you he’d been in there and he told you he knew the stuff was there?
A. Uh huh.

The witness had not previously stated that Booher had seen anything in the house on his prior visit. The witness also testified that she helped dispose of some of the “stolen stuff” and kept some of it in her house, knowing it was stolen.

The trial court ruled as follows:

*** The Court finds that Deputy Booher, when he went in there the first time, as he has testified to, did not receive anything that would incriminate anyone. He merely went there with the father of the defendant, Olles, who he himself had apparently had a right to be there picking up some of his own goods, and then when he went back to the premises on the 12th, apparently, he did not make a search of the premises. The witness here, who is available to testify, voluntarily gave him the goods that had been stolen from the victim’s home. They are available, I guess, so I find that there was, in fact, no search.

We are in no position to say that the trial judge erred in holding that there was no search and that the stolen goods had been voluntarily delivered to the officer. There is little conflict in the testimony of the two witnesses. The only suggestion that Sue Markham’s turning over the stolen property was not voluntary, because of knowledge obtained by a trespass on the part of the deputy sheriff, lies in affirmative answers to questions which put into the mouth of the witness words she had not otherwise spoken. This is largely a matter which turns upon the credibility of the witnesses, who were seen and heard by the trial judge. We cannot say that his determination was erroneous.

The judgment as to Anderson is affirmed. As to Olles, it is reversed and the cause remanded for further proceedings consistent with this opinion.

We agree. Harris, C.J., and George Rose Smith and Jones, JJ.


author: J. Fred Jones, Justice.

text:
    B.D.T., INC. & S.E., INC. v. William MOORE, Randolph County Assessor, Lucille STOLT, Randolph County Clerk & Betty J. JOHNSON, Randolph County Tax Collector
    76-125
    543 S.W. 2d 220
    Opinion delivered November 8, 1976 (In Banc)
    [Rehearing denied December 13, 1976.]

      Wilson & Grider, by: Murrey L. Grider, for appellants.

      King & King, by: Jim King, for appellees.
   J. Fred Jones, Justice.

This is an appeal by two corporations from a chancery court decree denying their petition for a restraining order against the appellee county officials to prevent the assessment and collection of ad valorem taxes on two tracts of land owned by the city of Pocahontas and leased to the appellants through the Municipal Airport Commission.

The Airport Commission leased one of the tracts here involved to William and Harold Baltz who constructed buildings thereon and then assigned all their interest to the appellant B.D.T., Inc. who was apparently a private manufacturing company. The other tract was leased to the appellant S.E., Inc. who erected buildings thereon and subleased to the Black River Seed Company, Inc. Both leases provided that industrial buildings would be erected on the land, and both leases contained clauses providing as follows:

The Lessees shall pay all taxes and special assessments, betterments, general or specific, whether levied or to be levied in the future and any other governmental charges and impositions whatsoever, whether forseen or unforseen.
* * *
The parties hereto covenant and agree that the lands above demised shall be used solely for industrial purposes and for no other reason.

Randolph County, through the appellee-officials, levied an ad valorem tax against the properties for the year 1974 in the amount of $2,248.99 resulting in the petition and decree as already stated. On appeal to this court the appellants have designated one point they rely on for reversal as follows:

The Assessment ofian ad valorem real property [tax] on real estate leased from a municipality for a public purpose constitutes an illegal exaction in violation of Article 16, Section 13 of the Constitution of the State of Arkansas.

Section 13 of Article 16 reads as follows:

Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.

The right of the appellants to institute suit to protect against enforcement of any illegal exaction is not questioned in this case. The real question involved is whether the property was exempt from taxation under Article 16, Section 5, of the Constitution which provides such exemption for “public property used exclusively for public purposes.”

The appellants rely heavily on our decision in Wayland v. Snapp, 232 Ark. 57, 334 S.W. 2d 633, but we are of the opinion that our decision in School District of Fort Smith v. Howe, 62 Ark. 481, 37 S.W. 717, is more in point with the issues presented in the case at bar. The primary question in Snapp was the validity of a municipal ordinance authorizing a bond issue under Act No. 9 of 1960 for the purchase of land and erection of facilities to be leased to Seiberling Rubber Company, Inc. The secondary ad valorem tax issue in Snapp only arose out of an alleged promise of ad valorem tax exemption. Our statement of the law in disposing of that issue in Snapp can be of no assistance to the appellants in the case at bar, for in Snapp we said:

In his Complaint appellant alleges that: “The City of Batesville has represented to Seiberling that the land and manufacturing facilities to be leased to Seiberling by the City will be exempt from ad valorem taxes” in violation of Article 16, Sections 5 and 6 of the Arkansas Constitution. * * * As we understand the above provisions of the Constitution, for property to be exempted from taxation two elements must be present: (a) the subject property must be “public property,” that is, it must be owned (in this instance) by the City of Batesville; (b) it must be used exclusively for public purposes. In our opinion both of these elements, are present in the case under consideration as we shall attempt to show.
(a) It must be admitted here that the grounds, the building and facilities will be owned by the City of Batesville and will, therefore, be public property.
(b) Likewise, we think it is clear that the property will be used exclusively for a public purpose. If it is, it will be exempt from taxation under the Constitution and if it is not it must be taxed.

The dissenting opinion in Snapp, supra, did not differ with the majority opinion as to the law on the question of tax exemption. In the dissenting opinion is found the following pertinent language:

The constitution exempts “public property used exclusively for public purposes.” Const., Art. 16 § 5. Obviously the framers did not mean to exempt all public property, for in that event there would have been no need to insert the phrase, “used exclusively for public purposes.” The inclusion of that phrase demonstrates conclusively that the exemption does not embrace all publicly owned property; it must also be used exclusively for a public purpose.

After citing and discussing School District of Fort Smith v. Howe, supra, the dissent in Snapp then continues as follows:

We have many other cases to the same effect, holding that the tax exemption must be strictly construed and that property falls within one of the exemptions only if it is actually used for the exempt purpose. Brodie v. Fitzgerald, 57 Ark. 445, 22 S.W. 29; Pulaski County v. First Baptist Church, 86 Ark. 205, 110 S.W. 1034; Burbridge v. Smyrna Baptist College, 212 Ark. 924, 209 S.W. 2d 685; Hilger v. Harding College, 231 Ark. 686, 331 S.W. 2d 851.

The majority and dissenting opinions in Snapp agreed as to the law pertinent to tax exemption under Article 16, Section 5 of the Constitution, they only disagreed on this point as to the application of the law to the facts in Snapp.

We are unable to say the chancellor’s finding that the property here involved was not “used exclusively for public purposes” was against the preponderance of the evidence.

The decree is affirmed.

Byrd and Holt, JJ., concur.