text:
    Miryana NAVORRO-MONZO v. L. Milton HUGHES
    88-170
    763 S.W.2d 635
    Supreme Court of Arkansas
    Opinion delivered January 17, 1989
    [Rehearing denied February 20, 1989.]

      Thurman Ragar, Jr., for appellant.

      Friday, Eldredge & Clark, by: William M. Griffin III, for appellee.

      Purtle, J., not participating.

   John I. Purtle, Justice.

The trial court granted a summary judgment in favor of the appellee on the appellant’s complaint which accused the appellee of slander and interference with a business expectancy. The appellant’s four arguments for reversal are that: (1) the court erred in dismissing the defamation action because malice had been alleged, and if proven at trial, this would destroy the qualified privilege which the appellee enjoyed; (2) the court erred in failing to hold that malice must be presumed from the statements presented in the complaint; (3) the court erred in dismissing the claim for damages for interference with a contractual relation; and (4) the court erred in granting summary judgment because there were disputed issues of fact. We hold that the pleadings, affidavits, and other supporting documents did not state facts from which “malice” could be found. Therefore, the qualified immunity enjoyed by the appellee under the circumstances was not destroyed. The judgment by the trial court is affirmed.

The appellant and appellee, together with two other persons, were the directors of Le Metro Cafe Continental, Inc., an Arkansas corporation which operated a restaurant in the Union Station in Pine Bluff, Arkansas. The appellant was the chef and manager of the restaurant, and the appellee was the president of the corporation.

The corporation grew out of an arrangement whereby the appellant furnished some equipment as well as her expertise in the business, and the other persons furnished the capital for the venture. Things did not go well, and the business was losing money. During a board meeting, attended only by the board members and the corporation’s attorney, the appellee stated that the corporation’s accountant had informed him that the taxes had not been paid and that criminal charges were going to be filed. He further stated that the directors had given the appellant $ 100,000 a few weeks earlier and that she had mishandled these funds, not having paid the rent and the taxes with the money.

We first discuss the appellant’s last two arguments for reversal: interference with a contractual relation and the granting of a summary judgment. We agree with appellant’s statement that a successful claim for interference with a contractual relation must allege and prove that a third person either did not enter into or failed to continue a contractual relationship with the claimant as a result of the unauthorized conduct of the defendant. According to the allegations in the complaint, the only contractual relationship the appellant enjoyed was her employment with the now-defunct corporation. Both the appellant and appellee were directors of the corporation. (Appellee owned only one-fourth of the shares of the corporation; therefore he did not own controlling interest as argued by the appellant.) An action for tortious interference with a contractual relationship is based upon a defendant’s conduct toward a third party. There was no third party in the present case. See Mason v. Funderburk, 247 Ark. 521, 446 S.W.2d 543 (1969). For reasons stated above and below we hold that the trial court did not err in granting summary judgment in favor of the appellee.

For the purpose of considering the motion for summary judgment, the appellee concedes that his statements about appellant were false. According to Black’s Law Dictionary, Fifth Edition (1979), slander is the speaking of false and malicious words concerning another, whereby injury results to his reputation. Black’s defines publication of slander as “the act of making the defamatory matter known publicly, of disseminating it, or communicating it to one or more persons.” According to the Restatement of Torts, publication consists of communicating slanderous matter intentionally or by a negligent act to one other than the person defamed. Restatement of Torts, Second, § 577 (1977). Although the publication of defamatory matter, intentionally or through negligence, may give rise to a tort action, the defamatory statement may be protected by a qualified privilege.

The appellant concedes that communications between members of the board of directors of a corporation are qualifiedly privileged. She argues, however, that when malice is demonstrated, the publication loses the protection of this privilege. Therefore the question to be decided by this court is whether the qualified privilege enjoyed by the appellee was lost because of malice on his part.

The appellee argues that there must be publication before a slanderous statement is actionable. He contends that there was no publication in the present case.

The basis of liability for slander is the publication. Publication has been defined by Prosser as follows:

Since the interest protected is that of reputation, it is essential to tort liability for either libel or slander that the defamation be communicated to someone other than persons defamed. This element of communication is given the technical name of “publication,” but this does not mean that it must be printed or written; it may be oral, or conveyed by means of gestures, or the exhibition of a picture or statue.
There may be publication to any third person. It may be made to a member of the plaintiffs family, including his wife, or to the plaintiffs agent or employee. It may be made to the defendant’s own agent, employee or officer, even where the defendant is a corporation. The dictation of defamatory matter to a stenographer generally is regarded as sufficient publication, although it may be privileged. A few courts, with the tendency to confuse the question of publication with that of privilege, have held that it is not, regarding dictation as an indispensable method in modern business transactions, and therefore merely equivalent to the defendant’s own writing.

Prosser and Keeton on Torts, Fifth Edition (1984), § 113.

Alternatively to claiming there was no publication, the appellee (defendant below) argues that the statements were qualifiedly privileged. Historically, the common law recognized situations in which the interest of a party making such an utterance is sufficiently justified to allow for some mistakes. Admittedly finding it difficult to reduce such exceptions to a single statement, Professor Prosser quoted Baron Parke to the effect that the publication is privileged when it is “fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.” See Dillard v. Felton, infra, and Restatement of Torts, Second, § 595.

In determining whether an utterance is actionable, it is necessary to examine the interests of the publisher and the recipients of the communication. A qualified or conditional privilege frequently arises when a common interest is involved. On the subject of common interest, Prosser has observed:

A conditional privilege is recognized in many cases where the publisher and the recipient have a common interest, and the communication is of a kind reasonably calculated to protect or further it. Frequently in such cases there is a legal, as well as a moral obligation to speak. This is most obvious, of course, in the case of those who have entered upon or are considering business dealings with one another, or where the parties are members of a group with a common pecuniary interest, as where officers, agents or employees of a business organization communicate with stockholders, or with other employees or branch offices about the affairs of the organization itself, or taxpayers discuss the management of public funds, or an association of property owners the desirability of a prospective purchaser, or creditors the affairs of a common debtor.

Prosser, § 115.

It is a condition and qualification of the privilege that the utterance must be exercised in a reasonable manner and for a proper purpose. Therefore, if the person making the statement steps outside the bounds of the privilege or abuses the privilege, the qualified privilege is lost. The immunity does not extend to a publication of irrelevant defamatory statements which have no relation to the interest entitled to protection. Hines v. Shumaker, 52 So. 705 (Miss. 1910). The qualified privilege is lost if the publication is not made for the purpose of furthering the common interest. Restatement of Torts, Second, § 603.

The arguments of both the appellant and appellee in this case largely concern the concept of “malice.” The authorities are quite clear that the qualified privilege is forfeited if it is abused; i.e., the privilege will be lost if the defendant publishes the defamatory statement with “malice.” In this sense the word “malice” means something more than the fictitious “legal malice” which is “implied” in order to impose strict liability in a case of unprivileged defamation. On the other hand, it may mean something less than “express malice,” or ill will. See Prosser, § 115. On this subject Prosser has commented:

[I]t is the better and perhaps more generally accepted view that the mere existence of such ill will does not necessarily defeat the privilege. If the privilege is otherwise established by the occasion and a proper purpose, the addition of the fact that the defendant feels indignation and resentment towards the plaintiff and enjoys defaming him will not always forfeit it. Perhaps the statement which best fits the decided cases is that the court will look to the primary motive or purpose by which the defendant apparently is inspired.

The appellant relies primarily on the case of Bohlinger v. Germania Life Insurance Company, 100 Ark. 477, 140 S.W. 257 (1911). There are many similarities between that case and the case before us. The basic communication at issue in Bohlinger was a letter from a retail credit company to an insurance company which had issued a life insurance policy on Bohlinger. In that case the insurance company did not contend that the statements concerning the plaintiff were not libelous, nor did it contend that the communication to its agents was not a publication. The issue was stated by Judge Frauenthal as follows:

The sole contention made by him why plaintiff is not entitled to recover is that the undisputed evidence shows that the statements in the report were made and sent on and in connection with an occasion which constituted it a privileged communication, for which an action for libel would not lie.

100 Ark. at 482.

The opinion stated that privileged communications are of two kinds: absolutely privileged and qualifiedly privileged; that an essential ingredient in either case is “malice”; and that such communications are not actionable if made upon such occasions and under such circumstances as to refute the legal inference of malice. Bohlinger continued:

A communication is held to be qualifiedly privileged when it is made in good faith upon any subject-matter in which the person making the communication has an interest or in reference to which he has a duty, and to a person having a corresponding interest or duty, although it contains matters which, without such privilege, would be actionable.

The Bohlinger opinion went on to state that the law will not infer malice on occasions when the utterances are appropriate, in the absence of evidence which goes beyond a showing that the statements were false and were published. In other words, the communications are privileged so long as they do not go beyond what the occasion allowed. At the heart of the Bohlinger ruling was the following statement:

When the facts adduced in evidence are uncontroverted, it becomes the duty of the court to determine whether or not the communication complained of is privileged. The great weight of authority supports the doctrine that the court must decide whether the writing which is claimed to be libelous is one within a qualified privilege. If the court decides that it is, then it will go further and determine whether or not there is any testimony adduced upon the trial which tends to prove malice. If, from the uncontroverted testimony, there is no malice shown, then there exists no cause of action, and it becomes the duty of the court to direct a verdict for the defendant.

100 Ark. at 483-484.

The appellee first argues that there was no publication in the present case. The argument is based in part upon the case of Farris v. Tvedten, 274 Ark. 185, 623 S.W.2d 205 (1981), where we stated: “In a defamation case a libelous or slanderous statement must be published or communicated to a third person to be actionable.” The case held that the fact that a libelous letter was dictated to a stenographer did not constitute publication; nor did the fact that the husband opened the letter addressed to his wife render the statement a publication. A somewhat stronger case relied upon by the appellee is that of Halsell v. Kimberly-Clark Corp., 683 F.2d 285 (8th Cir. 1982). The holding in Halsell was that until a slanderous statement is communicated outside the corporate sphere or internal organization there is no publication. The Eighth Circuit was applying Wisconsin law at the time.

The appellee also relies upon Ikani v. Bennet & Russell, 284 Ark. 409, 682 S.W.2d 747 (1985); and Dillard Department Stores, Inc. v. Felton, 276 Ark. 304, 634 S.W.2d 135 (1982). Both of these cases concerned qualified privilege or immunity. In Dillard we held that normally communications within a corporation are entitled to the privilege, but we also held that, although privileged, the immunity can be lost if the utterances go outside the bounds of reason and the purpose for the making of the statements. In Ikani we simply held that statements made by fellow employees were shielded from liability by the qualified privilege. We also considered slander and libel in the case of Little Rock Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660 S.W.2d 933 (1983), where we reversed because of the failure to show damage to reputation. Since the action by Dodrill was based upon newspaper articles, publication had occurred. Moreover, qualified immunity was not an issue.

It is essential to tort liability for slander that the defamation be communicated to one other than the person slandered. When the defamation is communicated to another person, it is at that time published within the meaning of the law of slander. Publication and privilege have been either confused or used interchangeably by a number of jurisdictions. However, the great majority of the cases dealing with defamation are not concerned with publication but with privilege. The case before us involves a question of privilege or qualified immunity.

Although the Eighth Circuit Court of Appeals stated in Halsell v. Kimberly-Clark Corporation, supra, that statements made within the branches of the same corporation did not constitute publication, the court did so in reliance upon the law of the state of Wisconsin. The facts in the Halsell case fit perfectly well into the pattern of qualified immunity or privilege. The authorities are in general agreement that qualified privileges must be exercised in a reasonable and responsible manner and for the purpose of furthering the interest of the parties concerned. As previously stated, if the publication or utterance of the defamatory statement has no bearing on the public or private interest which is entitled to protection, then the privilege is lost. Hines v. Shumaker, supra.

The defamatory utterances in the present case were not exceptionally harsh, and the record does not demonstrate that they were motivated by spite or revenge. The statements were more in line with statements made by an investor who fears his investment is going down the drain. It was spoken to the members of the board of directors of the corporation. All of the parties present at the time obviously had a legitimate interest in the subject matter of the statements. It was clearly a privileged publication. Neither the allegations in the complaint nor other matters presented to the court, even if established at trial, would support a finding of malice.

In Bohlinger we held that when the facts adduced in evidence are uncontrover'ted it becomes the duty of the court to determine whether the communication is privileged. The opinion further held that if the court decided that the utterance was privileged there must be a decision whether any evidence had been presented to prove malice. The court stated: “If, from the uncontroverted testimony, there is no malice shown, then there exists no cause of action, and it becomes the duty of the court to direct a verdict for the defendant.” Bohlinger is controlling in the present case. Therefore, we hold that the trial court did not abuse its discretion in granting a summary judgment for the appellee.

Affirmed.

       Although we upheld a directed verdict in that decision and are concerned with a summary judgment in the present case, the reasoning is the same. In the summary judgment cases we consider not only the affidavits and pleadings but all reasonable inferences deducible therefrom. In directed verdict cases it is not necessary to indulge in reasonable inferences from the pleadings and affidavits because the proof has been completed.


source: Caselaw Access Project

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

license: Public Domain

text:
    ARKANSAS HOSPITAL ASSOCIATION, et al. v. ARKANSAS STATE BOARD OF PHARMACY and Arkansas Pharmacists’ Association
    88-124
    763 S.W.2d 73
    Supreme Court of Arkansas
    Opinion delivered January 17, 1989
    [Rehearing denied February 20, 1989.]

      Wallace, Dover & Dixon, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee Arkansas State Board of Pharmacy.

      Arnold, Grobmeyer & Haley, A Professional Association, for appellee Arkansas Pharmacists’ Association.

      Purtle, J., would grant rehearing.

   Robert H. Dudley, Justice.

Ark. Code Ann. § 17-91-607(a) (1987) distinguishes between nonprofit hospitals and for-profit hospitals by allowing for-profit hospitals to hold retail pharmacy permits, but not allowing nonprofit hospitals to do so, unless they held such a permit on the effective date of the statute.

The appellants, a group of nonprofit hospitals and a trade association, filed suit seeking to enjoin the appellee, the State Board of Pharmacy, from enforcing the statute. The appellants below argued that the statute violated their right to equal protection of the laws as guaranteed by the fourteenth amendment to the Constitution of the United States, and by article 2, section 18 of the Constitution of Arkansas. The trial court dismissed the complaint at the conclusion of the appellants’ case. We affirm that ruling.

On an equal protection challenge to a statute, it is not our role to discover the actual basis for the legislation. Instead, we are merely to consider whether any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives, so that the legislation is not the product of utterly arbitrary and capricious government purpose and void of any hint of deliberate and lawful purpose. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). Further, the party challenging the legislation has the burden of proving that the act is not rationally related to achieving any legitimate objective of state government under any reasonably conceivable state of facts. Streight, 280 Ark. at 214.

In this case a rational basis does exist for the legislation; the prevention of drug diversion. Drug diversion is the diversion of drugs from one wholesale submarket to another with a resulting loss of control over the drugs.

In June 1985, the Subcommittee on Oversight and Investigation of the Committee on Energy and Commerce of the United States House of Representatives issued a staff report on the subject, commonly referred to as the Dingell report. The report discusses the existence and method of operation of the wholesale submarket, or diversion market, and how it prevents effective control over, and even routine knowledge of, the true source of drugs. It states that, as a result, pharmaceuticals which have been mislabeled, misbranded, improperly stored or shipped, have passed their expiration date, or are bald counterfeits, are injected into the national distribution system for ultimate sale to consumers. The report states that nonprofit hospitals buy at below average wholesale price under a special exemption to federal antitrust laws. “These nonprofit institutions that buy in excess of their legitimate needs and then resell the excess are a significant and growing source of diverted merchandise.” Staff of House Committee on Energy and Commerce, 99th Cong., 1st Sess., Report on Drug Diversion 2 (Comm. Print 1985).

The report further provides:

Nonprofit Institution Diversion
As indicated in a previous section, nonprofit institutions that have purchased pharmaceuticals beyond their needs have diverted the excess to the wholesale market for many years. Recently, however, and in the face of apparent prohibitions against resales by the Robinson-Patman Act (15 U.S.C. 13), the volume of merchandise and the number of diversions from nonprofit institutions appear to have increased dramatically.
This is not to say that the practice is new. Extensive hearings in 1967 and 1969 before the House Select Committee on Small Business provided a forum for complaints that failure to enforce the Robinson-Patman Act was unfairly damaging retail druggists.
An entire industry has sprung up whose sole purpose appears to be to solicit nonprofit hospitals to purchase excess pharmaceuticals using their special discount, which products are then immediately resold to the broker or wholesaler for ultimate resale to the retailer. The current head of the California Board of Pharmacy told the Subcommittee staff that it was his guess that hospital diversion was the leading source of products for the diversion market in his state.
The Subcommittee staff has identified companies in California, Texas and New Jersey that are making such solicitations.

Id. at 21, 23.

The General Assembly may well have been aware of the diversion market and decided to limit its operation. Obviously, nonprofit hospitals could not rationally be prevented from buying authorized drugs for their own in-house use, but they rationally could be prevented from selling drugs at retail to someone who has no present connection with the hospital. This would eliminate the possibility of a nonprofit hospital purchasing drugs at a discount for its own use, or in-house use, and then diverting those drugs to its retail pharmacy. It would also prevent it from purchasing drugs for retail use from other nonprofit institutions. Thus, a rational basis exists which demonstrates a connection with a legitimate state objective.

The appellants next argue that the act is too broad, and therefore, the state classification has no rational basis. Simply stated, they argue that the General Assembly should have only made the retail sale of pharmaceuticals purchased at the discount nonprofit rate unlawful.

The Robinson-Patman Act, 15 U.S.C. § 13, prohibits drug diversion by making the retail sale of pharmaceuticals purchased at the discount nonprofit rate unlawful. The General Assembly may well have been aware of the federal law and realized that even though drug diversion was a federal crime, it still was a growing problem; that simply classifying something as a crime did not necessarily solve the problem. Thus, the General Assembly may have chosen to limit diversion by disallowing any connection between a nonprofit hospital and a retail pharmacy.

The fact that the A rkansas statute is broader in scope than the Robinson-Patman Act does not invalidate the state statute, for, in applying the rational basis test, the judiciary will not act as a superlegislature to question the means employed to accomplish the state objective. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 316, 317 (1976). “As long as the classificatory scheme . . . rationally advances a reasonable and identifiable governmental objective, we [the judiciary] must disregard the existence of other methods of [achieving the legislative goal] that we, as individuals, perhaps would have preferred.” Schweiker v. Wilson, 450 U.S. 221, 235 (1981).

The fact that the General Assembly chose to limit drug diversion by eliminating retail sales by nonprofit hospitals, rather than solely by making such actions a crime, does not render the legislation overly broad.

Affirmed.

Hickman, J., concurs.

Purtle, J., dissents.

Darrell Hickman, Justice,

concurring. Sometimes a decision has to be defined by what it is not.

This is not a decision affecting consumers. The nonprofit hospitals do not pretend they want to operate drug stores to reduce the cost of drugs to the public. Indeed, they candidly seek to make profits.

This case is not one of discrimination to prevent competition. Through advertising and discount drug stores, there exists a competitive atmosphere from which the public benefits. This is not a decision that prohibits a hospital from performing a function necessary to its existence.

The question is purely, can the legislature prohibit a nonprofit hospital, which it has granted special privileges and concessions, from opening an unnecessary, profitable business?

Nonprofit corporations are probably misunderstood and, perhaps misnamed. They make profits and, though they don’t have owners or stockholders, an establishment exists to run them. The profits of such a corporation should inure to the benefit of those served by the corporation. But sometimes, these institutions forget the real reason for their charters and simply feed the employees, directors, friends and associates of the corporation rather than devote the profits to services.

I point no fingers but merely note that there are no parties to this suit who have totally unselfish motives. There is no genuine question of due process of law or discrimination involved.

The only question is: can any conceivable reason be found to justify the legislation? It can.

John I. Purtle, Justice,

dissenting. The majority opinion is based upon a belief that a rational basis exists for this legislation, i.e. the prevention of drug diversion. This basis was completely disproved at the trial level. The fact that the Congress, or one of its agencies, found some drug diversion occurring in other parts of the country is no rational basis for finding it will occur in Arkansas.

Not only was there evidence that no diversion has occurred in Arkansas, there was evidence that no such diversion was likely to occur. The majority opinion speculates that the General Assembly may have been aware of the “diversion” market and decided to prevent it from happening in Arkansas.

The Baptist Medical Systems presented testimony that they operated an in-house drug distribution system as well as a “for profit” pharmacy in one of the buildings. As I understand the legislation, this “for profit” pharmacy is “grandfathered” in and will be allowed to continue business. On the other hand, St. Vincent’s Infirmary, a well known medical institution in this area, will be unable to establish a drug store on its campus. At the same time, the Doctors Hospital, a “for profit” hospital, will be allowed to continue operating its drug store for profit, as will any other private hospital.The only motivation behind this lawsuit is profit. The pharamacists want to make the profit that the “not for profit” institutions are making on their “for profit” pharmacies. The legislation gives one class of persons priority or preferential treatment over others and the inevitable result is to increase the price of drugs to the consumer. This law is, in my opinion, in violation of the Due Process and Equal Protection clauses of the Constitution. This piece of special legislation, which is also prohibited by the Arkansas Constitution, should be declared void.


author: Steele Hays, Justice.

text:
    UNION COUNTY v. WARNER BROWN HOSPITAL
    88-255
    762 S.W.2d 798
    Supreme Court of Arkansas
    Opinion delivered January 17, 1989

      Bill McLean, Union County Prosecuting Attorney, by: John D. Lightfoot, for appellant.

      Spencer, Spencer, Depper & Guthrie, by: David F. Guthrie, for appellee.
   Steele Hays, Justice.

When officers of the Union County Sheriffs Department attempted to serve a warrant for the arrest of Daniel Wilson, Wilson refused to submit to arrest and was wounded in a shoot-out with the deputies. An ambulance was called and Wilson was taken to the Warner Brown Hospital in El Dorado where medical services costing $9,724 were rendered.

Eventually the hospital filed suit against Wilson and the county for the amount claimed. Union County moved for summary judgment, contending that its only responsibility was to transport Wilson to a facility where medical services were available, and, having done that, the county was under no further obligation. City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983).

The hospital also moved for summary judgment and the trial court took the motions under advisement. Judgment was later awarded to Warner Brown Hospital against Union County and the county has appealed upon the contention there are material issues of fact remaining and, therefore, it was error tó grant summary judgment. The county also asserts that the trial court’s conclusions of law were clearly erroneous. We reject the arguments and affirm the judgment.

The remaining issues of fact asserted by Union County have to do with the conditions surrounding the delivery of Wilson to the hospital. It is contended that there should be a determination, for example, of whether the decision to bring him there was that of police officials or was solely that of the ambulance driver. It is also argued that there are issues concerning whether Wilson’s condition was negligently caused by the county through the use of excessive force. We reject these contentions because they were not made before the trial court, and we need not consider them for the first time on appeal. Sun Gas Liquids Co. v. Helena National Bank, 276 Ark. 173, 633 S.W.2d 38 (1982).

As to the second point, appellant argues that there is no law imposing liability on Union County for the medical services furnished by the hospital, hence, for the trial court to rule as a matter of law for the hospital was clearly erroneous. We disagree. From the affidavits filed in support of the motions for summary judgment the following facts can be taken as undisputed: that Wilson was wounded by deputies of the Sheriff of Union County as they attempted to arrest Wilson for aggravated assault; that the ambulance which transported Wilson to Warner Brown Hospital was called by the deputies; that Union County had on numerous previous occasions utilized Warner Brown for emergency medical treatment of prisoners and had paid for such medical services; that Union County owned and operated a medical facility in El Dorado (Union Medical Center) capable of providing medical care to county prisoners. Those circumstances were sufficient for the trial court to hold, as it did, that Union County had an obligation to furnish emergency medical care to Wilson and a corresponding duty to pay for such care.

The appellant points out that the trial court did not rely on any of our statutes dealing with payment of costs of services to persons held in county jails. For example, Ark. Code Ann. § 12-41-504 (1987), provides that the quorum court in each county shall prescribe the method and procedure for finding and keeping prisoners confined in the county jail “and shall provide for payment for food and services.” Section 12-41-505 provides that every person committed to the common jail for “any criminal offense or misdemeanor,” if convicted, shall pay the expenses of carrying such person to jail and for his support while he remains there. The provision subjects property of a prisoner to payment of such expenses. Section 16-92-105 (1987), provides that if sufficient property belonging to the defendant cannot be found to pay costs and fees, they shall be paid by the county, or, if the charges are dismissed by the prosecuting attorney, the costs shall be paid by the county. Here, the trial court reserved for later adjudication any rights of the county against Wilson under these statutes.

The county argues that Wilson was not yet a prisoner of the county, within the language of these enactments. However, we think it unnecessary to reach that question in order to affirm the judgment. The county presumes its obligation under City of Revere v. Massachusetts General Hospital, supra, extended no farther than to deliver Wilson to a facility where medical treatment was available. But the trial court, correctly we believe, construed Revere as imposing an obligation on the governmental entity to supply the necessary treatment and if it can obtain such treatment only by paying for it, then it must do so. That, in fact, is exactly what the decision states:

If, of course, the governmental entity can obtain the medical care needed for a detainee only by paying for it, then it must pay. There are, however, other means by which the entity could meet its obligation. Many hospitals are subject to federal or state laws that require them to provide care to indigents. Hospitals receiving federal grant money from the Hill-Burton Act, for example, must supply a reasonable amount of free care to indigents. See 42 USC § 291c(e) [42 USCS § 291c(e)]. In the Commonwealth of Massachusetts now, any hospital with an emergency facility must provide emergency services regardless of the patient’s ability to pay. Mass Gen Laws Ann, ch 111, § 70E(k) (West), added by 1979 Mass Acts, ch 214, and amended by 1979 Mass Acts, ch 720. Refusal to provide treatment would subject the hospital to malpractice liability. § 70E. The governmental entity also may be able to satisfy its duty by operating its own hospital, or, possibly, by imposing on the willingness of hospitals and physicians to treat the sick regardless of the individual patient’s ability to pay.
In short, the injured detainee’s constitutional right is to receive the needed medical treatment; how the city of Revere obtains such treatment is not a federal constitutional question. It is not even certain that mandating government reimbursement of hospitals that treat injured persons in police custody would have the effect of increasing the availability or quality of care. Although such a requirement would serve to eliminate any reluctance on the part of private hospitals to provide treatment, it also might encourage police to take injured detainees to public hospitals, rather than private ones, regardless of their relative distances or ability to furnish particular services. (Revere, at p. 245).

We conclude that on the facts of this case, the trial court did not err in awarding judgment to the hospital and, accordingly, we affirm.

       A guardian ad litem was appointed for Wilson upon a finding that he was incompetent.


author: David Newbern, Justice. Darrell Hickman, Justice, John I. Purtle, Justice,

text:
    John W. KIEFER v. STATE of Arkansas
    CR 88-49
    762 S.W.2d 800
    Supreme Court of Arkansas
    Opinion delivered January 17, 1989

      Burris & Berry, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, John W. Kiefer, was convicted of rape and incest. He raises three points of appeal. First, he contends his statement admitting having sexual intercourse with his 14-year-old daughter should have been suppressed because the officer who arrested him, Hoxie Police Chief Paul Hendrix, violated Ark. R. Crim. P. 2.3 by failing to inform him he did not have to come to the chiefs office after Hendrix requested that he do so. Also under this point, he argues the form he signed, acknowledging his rights had been explained, was inadequate and that his statement should have been suppressed because he asked to consult with a lawyer before making it and was not afforded that right. Second, he argues it was error for the prosecutor to have called Kiefer’s wife to the stand, knowing that she would refuse to testify. Third, he argues insufficiency of the evidence of forcible compulsion, an element of the rape conviction.

1. Suppression

Kiefer moved to suppress evidence that he had confessed. At a suppression hearing, Chief Hendrix testified he was called by a social service worker to meet with her at Hoxie High School concerning a charge of rape and incest. That meeting resulted in his calling Kiefer to come to his office. Hendrix testified he had no warrant for Kiefer’s arrest, but he felt he had probable cause to arrest Kiefer. He “had belief’ that a felony had been committed.

Kiefer, accompanied by his wife, drove himself to Hendrix’s office. Hendrix testified he informed Kiefer of his rights and then took Kiefer’s statement in which Kiefer admitted having intercourse with the daughter but said he had not compelled her to do it. Hendrix testified that it was not until after Kiefer made his statement that Kiefer mentioned getting a lawyer. We need not address this matter further, as no authority is cited with respect to it and the judge was entitled to believe Hendrix’s testimony.

Hendrix conceded he did not inform Kiefer he did not have to come to the office. Rule 2.3 states, in part, that “[i]f a law enforcement officer . . . requests any person to come to . . .a police station ... he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.” Kiefer cites only Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985), in support of his contention that the conviction must be reversed because of noncompliance with the rule.

In the Foster case we mentioned the failure to comply with the rule, but the burden of the decision lay upon the misuse by police officials of the prosecutor’s authority to summon a person to his office for questioning. Ms. Foster had been awakened at 2:30 a.m. and taken to the prosecutor’s office by four police officers. In addition to noting the failure to tell her she did not have to accompany the officers, we pointed out that a prosecutor may not thus misuse the power given to him by Ark. Code Ann. § 16-43-212 (1987), and that it is wrong for the police to use the prosecutor’s authority for a police investigation.

The question before us thus becomes what if in the Foster case, as in this one, the only violation had been failure to comply with the rule. In Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987), we had a similar situation. There we concluded that failure to comply with the rule required us to consider the interrogation of one who voluntarily complied with a request to appear at a police office to have been a “custodial interrogation,” and suppression was required unless there was probable cause to seize the person making the statement sought to be suppressed. We then noted that probable cause exists if the officer has reasonably trustworthy information which would lead a person of reasonable caution to believe that a felony was committed by the person to be arrested, citing Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981). We concluded there was probable cause to arrest Burks at the time the evidence against him was obtained from him, and thus his conviction was affirmed.

Kiefer’s daughter, the alleged victim, testified she had told a social worker, Sally Golden, about her father’s conduct. Sally Golden is the person with whom Chief Hendrix met at Hoxie High School where he obtained the information which formed the basis of his request that Kiefer come to his office. The court was correct in refusing to suppress Hendrix’s testimony about Kiefer’s statement to him, as there was probable cause to arrest Kiefer at the time the statement was made, and Kiefer had been informed of his rights when he volunteered his statement.

We decline to address the argument that the rights form was “confusing,” as no authority is cited in support of it, and it is not convincing. Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988); Garrett v. State, 294 Ark. 556, 744 S.W.2d 731 (1988); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

2. Calling Mrs. Kiefer

The prosecutor called Mrs. Kiefer, the appellant’s wife, to the stand. As she approached, she informed the court she did not wish to testify. She was sworn in and then again informed the court she did not wish to testify. A hearing was held out of the presence of the jury. The judge asked Mrs. Kiefer if her wish not to testify was based upon her desire not to incriminate herself. She said she did not understand. The judge then appointed an attorney to discuss Mrs. Kiefer’s rights with her. The attorney informed the court that Mrs. Kiefer wished to assert her Fifth Amendment right not to testify. She was not recalled to the witness stand.

Kiefer argues his motion for a mistrial should have been granted because the prosecutor called Mrs. Kiefer to the stand, knowing of her desire not to testify. In Foster v. State, supra, we wrote that it was error for the court to permit the prosecution to call a witness to the stand where both the court and the prosecutor knew that the witness would be advised to assert her Fifth Amendment privilege not to testify. There, the attorney for the witness had asserted her privilege at an earlier bail bond hearing and had informed the court and the prosecutor the witness would assert the privilege if called to testify at trial.

In this case, there is no evidence that the court had any knowledge Mrs. Kiefer would assert her privilege. Although the prosecutor apparently knew Mrs. Kiefer had previously asserted she did not want to testify, nothing in the record shows she previously asserted any recognized privilege. In the Foster opinion, we quoted with approval the court of appeals decision in Sims v. State, 4 Ark. App. 303, 631 S.W.2d 14 (1982), where it was said that the evil in this situation lies not in the mere calling of a witness but in the asking of a series of questions, each of which she refuses to answer on privilege against self-incrimination grounds, thus creating the equivalent of testimony in the minds of the jurors. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1704 (1965). The court did not permit that here, and there was no error in refusing to grant a mistrial.

3. Sufficiency of evidence

An element of the crime of rape, as charged in this case, is “forcible compulsion.” Ark. Code Ann. § 5-14-103 (1987). Kiefer’s daughter testified that Kiefer made her have sex with him, that she had asked him not to do it, and that he had been doing it ever since she was little. She was 15 at the time of the trial. We find the evidence of forcible compulsion was sufficient. In Griswold v. State, 290 Ark. 79, 716 S.W.2d 767 (1986), we held there was forcible compulsion in very similar circumstances. We noted, “[t]he age of the victim and the relationship of the victim to the assailant are key factors in weighing the sufficiency of evidence of force to prove rape.” As in the Griswold case, we conclude that the testimony of the victim was sufficient to show that the sexual intercourse occurred without her consent.

Affirmed.

Hickman, J., concurs.

Purtle, J., dissents.

Darrell Hickman, Justice,

concurring. The problem with the Rules of Criminal Procedure is that some of the rules are not procedural, they are substantive.

It is a universally accepted principle of law that courts cannot make substantive rules, that is, make law like a legislature does. It is based on the fundamental principles of of constitutional law which regulate the roles of the branches of government — separation of powers and checks and balances.

When governors or legislatures exceed their constitutional powers, the courts check them. When courts do so, there is not much to check them, save the people rising up to stop them. In a system that depends on respect for the law for its existence rather than force, it is most difficult for the people to challenge unlawful acts of the judiciary. So a court exceeding its power is the most grievous violation of constitutional law there is.

In adopting some of the Rules of Criminal Procedure, we have overstepped our constitutional authority. Many of these rules in the area of arrest and search and seizure amount to legislative acts by a judicial body. The rules are attempts by this court to codify legislative acts and decisions of the United States Supreme Court. As a result, we often find ourselves trying to interpret substantive laws we have made rather than deciding cases on the basis of the Constitution and Supreme Court decisions interpreting the Constitution.

While it is handy to have a set of rules police officials can refer to, those rules should not issue from this court. We review and decide cases, not write legislation, and when we start writing substantive law, we step outside our role as a judicial body.

What is “procedural” about rules regulating police conduct involving search, seizure and arrest? Obviously, nothing. Procedural rules should address exactly that: what procedural steps should be taken in court. See Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977).

A.R.Cr.P. Rule 2.3 is a substantive rule. It concerns the warning a police officer must give if a person is requested to come to the police station. It has nothing to do with the steps to be taken in court. Indeed, it attempts to regulate the conduct of parties acting entirely beyond the bounds and power of this court. Adopting such rules is like incorporating rules of the road into the Rules of Civil Procedure.

We have appointed a committee to update the Rules of Criminal Procedure, and some progress is being made. But the rules should be revised to delete the substantive portions entirely.

I find no error and would affirm the conviction.

John I. Purtle, Justice,

dissenting in part. I cannot agree with that part of the opinion which puts this court’s stamp of approval on the “grandstanding” of the state’s attorney. In spite of his knowledge that the wife of the appellant was going to refuse to testify, the prosecuting attorney nevertheless called her to the stand, and asked her incriminating questions, thereby causing her to invoke her Fifth Amendment right before the jury, and to have counsel appointed by the trial court.

While the victim was on the stand she was asked by the prosecutor if her mother didn’t offer to pay her money not to come to testify in court. At a bench conference between the court and the attorneys the following conversation took place:

DEFENSE COUNSEL: If — if—if the court please, this is his case in chief and what he’s attempting to do and has already brought before the jury what he says is a collateral crime.
STATE’S ATTORNEY: By the mother.
THE COURT: Do you object?
DEFENSE COUNSEL: Yes sir, I object.
THE COURT: All right, I’m going to sustain it and I’m going to admonish the jury. I think it’s — I think it needs to be admonished. [Emphasis added.]

In my opinion this colloquy was sufficient to inform the court that the mother intended to invoke her Fifth Amendment rights. She obviously knew the state was going to try to present her to the jury as a lying criminal.

In Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985), we discussed the matter of a wife being called as a witness even though she was suspected of killing her husband. The state called her to the stand even though it knew she was going to invoke the Fifth Amendment. In our opinion we quoted from the Arkansas Court of Appeals (Sims v. State, 4 Ark. App. 303, 631 S.W.2d 14 (1982)), as follows:

The evil in the non-testimony of such a witness is not the mere calling of the witness, but the obvious inferences drawn by a jury to a series of questions, to all of which the witness refuses to answer on Fifth Amendment grounds. In that case the questions themselves “may well have been the equivalent in the jury’s mind of testimony.” [Cites omitted.] Such improper questioning, not technically being testimony at all, deprives an accused of his right to cross-examine the witnesses against him as guaranteed by the Confrontation Clause of the Sixth Amendment to the federal constitution ....

Even if the bench conference highlighted above was insufficient to notify the trial court that Mrs. Kiefer was going to exercise her Fifth Amendment right, the court was alerted to this when, after being called as a witness, she approached the bench and informed the court she did not wish to testify. At this point there should have been an in-chambers or a bench discussion concerning her refusal. Placing her on the stand before the jury and causing her to exercise her right, plus appointing a defense attorney, was sufficiently prejudicial to the appellant to require a mistrial.


author: David Newbern, Justice.

text:
    Richard A. STROUD v. Jerry RYAN
    88-151
    763 S.W.2d 76
    Supreme Court of Arkansas
    Opinion delivered January 17, 1989

      Joe H. Hardegree, for appellant.

      Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: J. Michael Cogbill, for appellee.
   David Newbern, Justice.

This is an attorney malpractice case. The trial court granted a judgment on the pleadings in favor of attorney Jerry Ryan after concluding the pleadings showed the three-year statute of limitations, Ark. Code Ann. § 16-56-105 (1987), had run. The appellant, Richard A. Stroud, contends the pleadings did not show that the statute of limitations had run. We agree with the appellant’s argument, and therefore the case is reversed and remanded.

The complaint, as amended, alleged the following: Ryan negligently failed to make Stroud’s response to a writ of garnishment served on Stroud on September 27, 1982, and given by Stroud to Ryan that same day. Stroud was held liable on the garnishment by default judgment for $22,674.01 on November 3, 1982. Upon Ryan’s motion on behalf of Stroud, the default judgment was set aside “nunc pro tunc” by an order of December 4, 1984. The order setting aside the default judgment was reversed by the court of appeals on February 19, 1986. The judgment creditor thereafter sought execution of the judgment against Stroud in the amount of $31,988.45 which included the principal judgment plus interest. Ryan represented Stroud on this as well as other matters until March, 1986. Ryan repeatedly assured Stroud that he need not worry about the judgment because, even if they did not succeed in overcoming it legally, Ryan’s malpractice insurance would pay it. Ryan did not disclose that the statute of limitations might pose a bar to Stroud’s attempted recovery from Ryan.

Ryan’s answer asserted the statute of limitations as a defense. The court’s order granting judgment on the pleadings found the statute of limitations barred the complaint, citing decisions of this court and one federal court decision holding that, according to Arkansas law, the statute begins to run when the negligent act occurs. Rhoades v. Simms, 286 Ark. 349, 692 S.W.2d 750 (1985); Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984); Cotton v. Mosele, 738 F.2d 338 (8th Cir. 1984). The court concluded that, because the period does not begin to run from the time the act of negligence is discovered and, in any event, there was no concealment of the negligence in this case, the three-year period had elapsed no later than November 3, 1985. The complaint in this case was filed December 18, 1986.

While we have held, in the Rhodes and Riggs cases cited above, that the statute of limitations begins to run when the act of malpractice occurs, we have not previously considered a claim that the running of the statute is suspended during a period when the party alleging malpractice could not have brought his claim because, in essence, the injury ceased for a time to exist.

As a general rule, the running of a statute of limitations is tolled during the time a putative plaintiff is prevented from bringing the action to which the statute of limitations applies. Fidelity Union Cas. Co. v. Texas Power & Light Co., 35 S.W.2d 782 (Tex. Civ. App. 1931); Broadfoot v. City of Fayetteville, 124 N.C. 478, 32 S.E. 804 (1899). See also Guaranty Trust v. United States, 304 U.S. 126 (1938); Amy v. Watertown, 130 U.S. 320 (1899).

We have no hesitation in holding that the running of the statute of limitations was tolled while the default judgment was set aside. During that time, although the alleged negligent act had occurred, Stroud had no claim against Ryan, as he could have shown no injury. Stroud could not have brought his action against Ryan between December 4,1984, and February 19,1986. Stroud lost his right to respond on the merits to the garnishment writ when Ryan allegedly failed to answer, no later than 20 days after service on September 27,1982. Stroud’s complaint against Ryan was filed December 18,1986, or approximately four years and 62 days from the earliest point at which Stroud’s claim could have arisen. Subtracting the period during which the statute was tolled, which was one year and 77 days, less than three years had passed.

Reversed and remanded.


author: Tom Glaze, Justice.

text:
    Charles E. PENNINGTON v. A.L. LOCKHART, Director, Arkansas Department of Correction
    88-227
    763 S.W.2d 78
    Supreme Court of Arkansas
    Opinion delivered January 17, 1989

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant brings this pro se appeal from the trial court’s denial of appellant’s petition for declaratory judgment requesting that his parole eligibility be correctly determined. He has failed to abstract any of the record. In addition, the three courts’ sentencing orders needed to determine parole eligibility are omitted from the transcript.

We hold pro se litigants to the abstracting requirement of Rule 9 of the Rules of the Arkansas Supreme Court and Court of Appeals. Bryant v. Lockhart, 288 Ark. 302, 705 S.W.2d 9 (1986); Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984). In the present case, appellant not only wholly ignored this court’s abstracting requirement, but also he failed to privilege us with a record that contains the court orders necessary to determine the parole eligibility issue the appellant raises in this appeal. Accordingly, we are required to affirm pursuant to Ark. Sup. Ct. R. 9(e)(2).

       In an earlier appeal, this court denied post-conviction relief to appellant. Pennington v. State, 294 Ark. 185, 741 S.W.2d 266 (1987).


author: Per Curiam.

text:
    Dominique GUINN v. GARLAND COUNTY CIRCUIT COURT, Juvenile Division
    RC 88-69
    761 S.W.2d 944
    Supreme Court of Arkansas
    Opinion delivered January 17, 1989

      Vicki S. Cook, for appellant.
    No response.
   Per Curiam.

Appellant, Dominique Guinn, by her attorney, has filed for a rule on the clerk. Her attorney, Vicki S. Cook, admits that the record was tendered late due to a mistake on her part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases.

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


text:
    Clarence WEST v. STATE of Arkansas
    RC 88-68
    763 S.W.2d 70
    Supreme Court of Arkansas
    Opinion delivered January 17, 1989

      James P. Massie, for appellant.
    No response.
   Per Curiam.

In accordance with this court’s opinion denying the petitioner’s motion for rule on clerk without prejudice, the petitioner’s attorney has filed a motion for reconsideration. West v. State, 297 Ark. 392, 763 S.W.2d 69 (1988). In this motion, the petitioner’s attorney, James P. Massie, now states that he accepts full responsibility for the failure of filing the transcript in a timely manner.

We have held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986).

The motion is granted, and a copy of this opinion will be forwarded to the Committee on Professional Conduct. See In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).


author: Jack Holt, Jr., Chief Justice. Darrell Hickman, Justice,

text:
    Benny Aaron COOPER v. STATE of Arkansas
    CR 88-72
    763 S.W.2d 645
    Supreme Court of Arkansas
    Opinion delivered January 23, 1989

      James R. Marschewski, for appellant.

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

Appellant Benny Cooper was charged with attempted capital murder, possession of methamphetamine with intent to deliver, possession of marijuana with intent to deliver, possession of drug paraphernalia, and felon in possession of a firearm. Before trial, Cooper filed a motion to suppress evidence seized from his vehicle contending that his detention by the investigating officer was unlawful and that the warrantless search of the vehicle violated his fourth amendment rights. At a hearing on the motion, the trial court determined that the evidence was admissible. Cooper was subsequently convicted by a jury on all charges and sentenced as an habitual offender. Finding no error, we affirm.

At approximately 10:30 p.m. on April 7, 1987, Detective Clay Thomas of the Fort Smith Police Department noticed a 1969 Oldsmobile travelling northbound on Towson Avenue in Fort Smith bearing what appeared to be out-of-state handwritten paper car tags. Thomas could not determine the expiration date of the tags nor could he determine where they had been issued. Thomas further considered the presence of temporary tags suspect as the car was an older model vehicle. Thomas followed the car and at one point pulled along side the vehicle. The driver looked directly at Thomas and shortly thereafter made a sudden left-hand turn without giving a signal.

Thomas managed to intercept the Oldsmobile several streets later at which time he turned on his blue lights and spot light and flashed his headlights in an effort to stop the vehicle. The driver of the Oldsmobile crossed several streets and then parked in a dark area on a side street. Detective Thomas placed his unit behind the car and ordered the driver to exit the vehicle. The driver produced an Oklahoma ticket (unsafe vehicle) in lieu of a driver’s license and identified himself as Benny Cooper.

Thomas testified that he recognized Cooper’s name in connection with several recent arrest reports indicating that Cooper was a local drug dealer with prior convictions who was often armed. Thomas also suspected at this time that a bulge in Cooper’s left hip pocket indicated the presence of a small handgun. Thomas returned to his vehicle to check for outstanding warrants and told Cooper to remain at the rear of the Oldsmobile. The warrant check was negative but another officer advised Thomas over the radio that Cooper was a known drug dealer, might be carrying drugs, and would be armed. At this time, Thomas noticed that Cooper had reentered his vehicle.

Thomas again ordered Cooper to exit the Oldsmobile. As he approached Cooper he talked with him for a moment and then asked Cooper if he was carrying a gun. Cooper replied in the negative and raised his jacket as proof. Thomas, still wary of the bulge in Cooper’s left hip pocket, knew that Cooper had been arrested only two weeks earlier and had been carrying a .38 caliber handgun in his left hip pocket. As a matter of caution, Thomas asked Cooper to place his hands on the car so that he could conduct a limited protective search or “pat down” of Cooper’s person.

Thomas testified that Cooper spun around and away from him, removed a gun for his left hip pocket, then pulled the trigger. The gun apparently malfunctioned. Thomas threw his flashlight at Cooper and ducked behind the Oldsmobile. He testified that Cooper then reached over the top of the vehicle and again tried to shoot him. Thomas drew his weapon, at which point Cooper either dropped his gun or threw it at Thomas and fled on foot. Cooper was apprehended by other officers about an hour later. During that time, Cooper’s handgun was recovered and Thomas conducted a search of the Oldsmobile to check its contents since he considered it abandoned and knew it would be impounded.

In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling was clearly against the preponderance of the evidence. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988).

The fourth amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. ...” That protection extends to persons driving down the street. Generally, searches of such persons or their vehicles conducted without a warrant are considered unreasonable. However, it has been held that consistent with the fourth amendment the police may stop persons on the street or in their vehicles in the absence of either a warrant or probable cause under limited circumstances. Terry v. Ohio, 392 U.S. 1 (1968); United States v. Hensley, 469 U.S. 221 (1985). One of those limited circumstances involves investigatory stops such as the one presented by the facts in the case before us.

There is no serious argument as to the validity of the initial stop by Detective Thomas. The presence of the paper car tags and the fact that it was impossible to verify the state of issuance or the expiration date of the tags, combined with the age of the vehicle and the obviously evasive actions of the driver, gave Thomas sufficient cause to stop the vehicle. Rule 3.1 of the Arkansas Rules of Criminal Procedure in relevant part provides:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.

In determining whether the officer’s suspicion was reasonable, A.R.Cr.P. Rule 2.1 provides the following definition:

“Reasonable suspicion” means a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.

Here, Detective Thomas clearly had specific, particularized, and articulable reasons warranting his stop of the Oldsmobile to determine whether, as provided in Rule 3.1, the vehicle had been stolen. See Hill v. State, 275 Ark. 71, 628 S.W.2d 285, cert. denied, 459 U.S. 882 (1982).

However, our inquiry does not end with a finding that the investigatory stop was proper. The issue now becomes whether Detective Thomas could justifiably conduct a limited search of Cooper’s person and, ultimately, whether there was any legal justification for the subsequent warrantless search of the car.

In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court upheld the validity of an officer’s investigatory “stop and frisk” because the officer feared that suspects he thought were about to engage in criminal activity were armed. The Court stated:

We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. Id. at 23.

A.R.Cr.P. Rule 3.4 reflects the considerations expressed in Terry and provides:

If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others.

Detective Thomas had observed a bulge in Cooper’s left hip pocket which suggested the presence of a handgun. He also knew that Cooper was by reputation a drug dealer who was often armed, had prior convictions, and had only recently been arrested while carrying a handgun in his left hip pocket. When these facts are coupled with the warning received over the police radio that Cooper would probably be armed, and the fact that Cooper had reentered his vehicle contrary to directions from Thomas, it is obvious that Thomas was involved in a potentially dangerous situation. Under the circumstances, a limited search or “pat down” of Cooper’s person as permitted under Rule 3.4 was clearly warranted. In sum, we find Cooper’s argument that an unlawful seizure had taken place at this point which tainted the subsequent search of the vehicle to be completely unfounded.

We need now determine only the lawfulness of the search of the Oldsmobile from which evidence was seized which formed the basis for the drug related charges against Cooper. The attempt by Detective Thomas to conduct a limited protective search of Cooper’s person was frustrated when Cooper spun away from the officer, pulled a gun, twice tried to shoot the officer, either threw his gun at the officer or dropped it, and then fled. In considering these circumstances and in denying Cooper’s motion to suppress, the trial court ruled in part that Cooper had effectively abandoned his vehicle when he fled. Within the context of constitutional search and seizure analysis, we agree that upon fleeing the scene Cooper abandoned whatever expectation of privacy he might have had in the Oldsmobile or its contents.

The following language from Thom v. State, 248 Ark. 180, 450 S.W.2d 550 (1970), is particularly useful:

We find no merit in appellant’s contention that the trial court should have suppressed evidence obtained from the search of the automobile. ... If appellant in his endeavors to avoid the clutches of the law had discarded his overcoat to make his flight more speedy, no one would think that an officer was unreasonably invading his privacy or security in picking up the overcoat and searching it thoroughly. In that situation most people would agree that the fleeing suspect had abandoned his coat as a matter of expediency as well as any rights relative to its search and seizure. What difference can there be when a fleeing burglar abandons his automobile to escape the clutches of the law? We can see no distinction and consequently hold that when property is abandoned officers in making a search thereof do not violate any rights or security of a citizen guaranteed under the Fourth Amendment.

While we recognize that some distinction may be drawn between the minimal expectation of privacy in an overcoat which has been discarded on a public street and automobiles which are regularly left parked on public streets without any expectation that they, will be subject to official searches, we consider the abandonment theory set forth in Thom to be sound as it applies to cases involving suspects who, like Cooper, flee from the scene of a crime leaving behind an unlocked vehicle. This approach has been cited with approval in several jurisdictions. See 1 W. LaFave, Search and Seizure § 2.5(a) (1987). See also Annot., 40 A.L.R.4th 381, at §§ 10 and 11 (1985), and cases discussed therein.

At the hearing on the motion to suppress, Cooper gave an entirely different version of the events surrounding the gun and the confrontation with Detective Thomas. However, we have repeatedly held that any conflict in the testimony of the witnesses is for the trial court to resolve. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988).

In light of the foregoing, we cannot say that based upon the totality of the circumstances the denial of Cooper’s motion to suppress was clearly against the preponderance of the evidence. Accordingly, it was not error to admit the items discovered in the vehicle.

Affirmed.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I agree with the result but would base the decision on the law, not the Rules of Criminal Procedure. The rules in question are substantive, not procedural. See Kiefer v. State, No. CR 88-49 (Ark. January 17, 1989) (Hickman, J., concurring).


author: Robert H. Dudley, Justice.

text:
    Starla JONES v. STATE of Arkansas
    CR 88-210
    763 S.W.2d 81
    Supreme Court of Arkansas
    Opinion delivered January 23, 1989

      James R. Marschewski, by: R. Paul Hughes III, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, Starla Jones, pleaded guilty to the offense of theft by deception, a Class C felony. At the time the offense was committed, in October 1986, the applicable statute authorized the trial court to sentence a defendant to a fine and suspend imposition of sentence as to imprisonment. Ark. Stat. Ann. § 41-803(4) (Supp. 1985) [Now codified at Ark. Code Ann. § 5-4-104 (Supp. 1987)]. The trial court ordered the appellant to pay a $750.00 fine and, in addition, withheld imposition of sentence as to imprisonment for five years. Restitution and costs were additionally ordered paid. The State later filed a petition asking that the appellant be required “to show cause why his suspended sentences should not now be set aside.” The trial court treated the petition as one to impose a sentence of imprisonment. A hearing was held and, seven (7) months after its original decree, the trial court ordered that the original suspended imposition of sentence as to imprisonment remain in effect and that appellant be sentenced to sixty (60) days in jail and the amount of restitution be increased. The appellant did not object below to the ruling and now appeals, arguing that the trial court acted beyond its authority in imposing the second sentence. The argument is well taken, and accordingly, we reverse.

Although appellant did not object in the trial court, she need not have done so. The trial court’s loss of jurisdiction over a defendant “is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court.” Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983); Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985).

The trial court fined the appellant $750.00 and suspended imposition of the sentence of imprisonment. After such a sentencing procedure the trial court correctly entered a judgment of conviction. See Ark. Code Ann. § 5-4-301(d)(l) (1987) [Formerly Ark. Stat. Ann. § 41-1201(3)(a) (Repl. 1977)]. The commentary following Ark. Stat. Ann. § 41-1201(3) effectively explains the legislative intent:

Subsection (3) excepts two situations from the general rule that a judgment of conviction is not to be entered when a court orders suspension or probation. The first is when the court fines the defendant and suspends or probates him only as to imprisonment. The court must enter a judgment of conviction if it is to have a basis for imposing a fine. Furthermore, the defendant who is found guilty of an offense and sentenced to pay a fine only has clearly been “convicted” of the offense. The result should not be different when the court fines the defendant and suspends imposition of sentence or places him on probation as to imprisonment.

Clearly, a plea of guilty, coupled with a fine and a suspension of imposition of sentence of imprisonment constitutes a conviction. David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985).

A trial court loses jurisdiction to modify or amend the original sentence, once a valid sentence is put into execution. Toney v. State, 294 Ark. 473, 743 S.W.2d 816 (1988); Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987). The issue then becomes, is a sentence by a circuit court to pay a valid fine put into execution when the judgment of conviction is entered? The obvious answer is yes. Unless the court directs payments by installment the whole fine is payable immediately. Ark. Code Ann. § 5-4-202(2)(b) (1987) [Formerly Ark. Stat. Ann. § 41-1102 (Repl. 1977)]. When the fine is adjudicated against the defendant in circuit court, the sheriff is to collect it. Ark. Code Ann. § 16-92-115 (Supp. 1987) [Formerly Ark. Stat. Ann. § 43-2503 (Repl. 1977)]. In addition, a judgment that a defendant pay a fine constitutes a lien on his real and personal property in the same manner as a judgment in a civil action. Ark. Code Ann. § 5-4-204(b) (1987) [Formerly Ark. Stat. Ann. § 41-1104(2) (Repl. 1977)]. Also, a defendant may be ordered to show cause why he should not be imprisoned for nonpayment. Ark. Code Ann. § 5-4-203 (1987) [Formerly Ark. Stat. Ann. § 41-1103 (Repl. 1977)]. The valid fine assessed in the original judgment of conviction in this case was put in execution long before the trial court attempted to modify the sentence. Thus, the attempted modification of the original order was erroneous.

The State argues that the trial court was following Ark. Code Ann. § 5-4-306(b) (1987) [Formerly Ark. Stat. Ann. § 41-1205 (Repl. 1977)], which authorizes modifying conditions imposed in an order suspending imposition of sentence. The short answer to that argument is that the original order only suspended imposition of sentence as to imprisonment. It did not suspend imposition of the fine.

The order modifying the original sentence is reversed.

Reversed and remanded.


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    Craig KENNEDY v. STATE of Arkansas
    88-167
    763 S.W.2d 648
    Supreme Court of Arkansas
    Opinion delivered January 23, 1989

      Larry W. Horton, for petitioner.

      Steve Clark, Att’y Gen., by: David B. Eberhard, Asst. Att’y Gen., for respondent.
   Robert H. Dudley, Justice.

Upon motion, we granted a temporary stay in this speedy trial case. We now dissolve the temporary stay and decline to issue a writ of prohibition because the speedy trial rules have not been violated.

Although petitioner divides his argument into three points, we need discuss it only as one: whether his right to a speedy trial has been violated. The material dates and events are as follows:

June 6, 1986 arrest
June 9, 1986 charge by information
November 6, 1986 plea of guilty
November 20, 1987 petitioner allowed to withdraw his plea of guilty and new trial date set
July 18, 1988 petition for writ of prohibition

The petitioner argues that A.R.Cr.P. Rule 28.1, which defines the time limitations, has been violated because he has been held to trial for a period of 25 months. The argument overlooks the fact that the petitioner pleaded guilty five months after the time first began to run. A defendant, by a plea of guilty, waives a number of significant rights, including the right to a speedy trial. Hall v. State, 281 Ark. 282, 663 S.W.2d 926 (1984).

The real issue is, after a guilty plea is ordered withdrawn, when does the time for a speedy trial begin to run? Rule 28.2, which defines when time begins to run, addresses the issue by analogy only. Subsection (c) provides:

(c) if the defendant is to be retried following a mistrial, an order granting a new trial, or an appeal or collateral attack, the time for trial shall commence running from the date of mistrial, order granting a new trial or remand.

We hold that an order allowing the withdrawal of a plea of guilty is analogous to an order granting a new trial, and the time for a trial begins to run anew after an order is entered allowing the withdrawal of a guilty plea. Thus, only eight months have run, and Rule 28.1 has not been violated.

The petitioner argues that the trial court did not comply with all the provisions of Rule 24, which describes how a trial judge is to receive and act upon a plea of guilty. The short answer to that argument is' that the plea of guilty was in effect until the trial court ordered it withdrawn.

Lastly, the petitioner argues that the trial court failed to enter written orders or make docket entries, and under Rule 28.3(i) no delays should be attributable to the petitioner. The argument is without merit. Although the trial judge failed to make a docket entry of either the guilty plea or the authorization to withdraw the plea, the events were taken of record and transcribed on September 21,1987, long before petitioner asked to have the case dismissed. This record of trial clearly sets out the guilty plea and the proceeding’s authorization for the withdrawal of the plea. The trial judge then entered a written order setting out all of the events. There is no requirement under Rule 28.3 that this type of order be entered prior to the petition for prohibition as there is for a continuance due to docket congestion. See Rule 28.3 (b) and Harkness v. Harrison, 266 Ark. 59, 585 S.W.2d 10 (1979), requiring that a finding of excluded period due to calendar congestion must be entered at time of delay.

Temporary stay dissolved; writ of prohibition denied.


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    Pier L. CASOLI v. STATE of Arkansas
    CR 88-149
    763 S.W.2d 650
    Supreme Court of Arkansas
    Opinion delivered January 23, 1989

      Isaacs & Isaacs, by: William B. Isaacs, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This case presents the question whether an appeal of an order denying a motion to dismiss for lack of a speedy trial may be taken from a municipal court to a circuit court as an interlocutory appeal. We hold that it may not.

The appellate authority of the circuit court with respect to appeals from municipal courts is to try the case appealed de novo. Ark. Code Ann. § 16-19-1105 (1987) [formerly Ark. Stat. Ann. § 26-1308]. While the statute speaks to appeals from decisions of justices of the peace, it applies to appeals from municipal court misdemeanor convictions. See Johnston v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975).

The circuit court remanded this case to the municipal court on the ground that the municipal court had not entered an appealable order. The appellant has attempted to appeal to this court the circuit court’s remand order. The record shows that no trial has occurred in the municipal court, no judgment has been entered, and thus there is nothing for the circuit court to try de novo. While the circuit court might have treated the attempted appeal as a request for a writ of prohibition, we know of no law requiring him to do so. The circuit court was correct.

Appeal dismissed.


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    THOMAS AUTO CO., INC. v. James E. CRAFT and Alice R. Craft
    88-200
    763 S.W.2d 651
    Supreme Court of Arkansas
    Opinion delivered January 23, 1989

      Gregory & Smith, P.A.., by: Michael G. Smith, for appellant.

      Sandra Tucker Partridge and James Swindoll, for appellee.
   David Newbern, Justice.

The appellees, James E. and Alice R. Craft, found defects in a car they purchased from the appellant, Thomas Auto Co., Inc. (Thomas). They returned the car and revoked their acceptance of it. Thomas refused to refund the purchase price. In their original and first amended complaints, the Crafts sought restitution of the purchase price plus incidental and consequential damages and, alternatively, damages for breach of warranty. They further amended their complaint to add a claim for damages for deceit. The trial court instructed the jury on both restitution based on revocation of acceptance and damages for misrepresentation. The jury awarded both as well as punitive damages. The primary issue presented concerns whether a rescinding party may obtain damages for misrepresentation in addition to restitution of the purchase price. We hold that the claimant may not have both a restitutionary award and compensatory damages for deceit. We also conclude that if the Crafts are ultimately awarded restitution of the purchase price plus incidental and consequential damages, rather than damages for deceit, punitive damages may be awarded if the tort of deceit has been proven.

The Crafts contracted with Thomas to purchase a new Chrysler New Yorker automobile on August 30, 1986. The Crafts thought they were purchasing a new car, and, although there was no evidence that the car had been owned by any other purchaser from the dealer, it was clear that the car had been damaged and Thomas knew it but did not reveal the damages to the Crafts.

The Crafts first discovered a defect in the car’s vinyl roof. Thomas attempted unsuccessfully to fix it, but ultimately ordered a new vinyl roof for the car. Then the Crafts discovered that the hood of the car had been repainted and there were dents on it elsewhere. They became completely dissatisfied with the car. They negotiated with Thomas to return the car, but Thomas refused to return the purchase price. The Crafts notified Thomas on December 16,1986, of their revocation of acceptance. The car was returned to Thomas on December 30, 1986.

A salesman for Thomas testified that the hood of the car was repainted in the Thomas shop and that it was not uncommon for Thomas to decline to inform a purchaser of a purportedly new car that it had been damaged prior to the sale. Thomas presented evidence that new cars are sometimes defective when received by the dealer and that they are sometimes damaged while on the dealer’s lot awaiting sale. No evidence was presented to show that the car was not new, in the sense that it had been previously purchased from the dealer or driven extensively by anyone other than the Crafts.

In instruction number ten, which was read to the jury, it was stated that

If you [the jury] decide for James E. and Alice R. Craft against Thomas ... on the question of damages with respect to the misrepresentation . . . you must fix the amount of money which will reasonably and fairly and adequately compensate the Crafts for ... : The difference in the fair market value of the automobile as it is and as it was represented to be at the time of the sale.

Instruction number eleven was, in pertinent part, as follows: “If you decide for [the Crafts] ... on the question of revocation of acceptance, you must then fix the amount of money which would refund the payment made plus the trade-in allowance on the automobile traded in by [the Crafts]. . . plus incidental and consequential damages incurred . . . .”

Instruction twelve permitted the jury to return punitive damages if they found Thomas knew or should have known its conduct, presumably that contemplated in instruction number ten, would result in injury to the Crafts and acted with malice or in reckless disregard of the consequences from which malice might be inferred.

After voicing his objection to instruction number ten on the ground that there was insufficient evidence to support the claim of misrepresentation, counsel for Thomas said:

And for the additional reason that Court’s Instruction Number 11 is presenting to the jury the option of additionally finding that the plaintiffs are entitled to revocation of acceptance, and therefore the three instructions together, 9,10, and 11 in effect would authorize the jury to find that revocation was proper in this case and therefore, the plaintiffs were entitled to be made whole as they were on the date of the sale, and in addition, be allowed an additional sum for an alleged misrepresentation about whether or not the vehicle was new or not, when there’s no evidence to show that it was anything other than a new vehicle.
Object to the form of instruction that permits the jury to find both compensatory damages for revocation of acceptance for misrepresentation and I object to the jury form that permits them to find punitive damages.

The verdict form, as executed by the jury, was as follows:

“We the jury find for Alice and James Craft in their claim against Thomas Auto Company, Inc., and assess damages as follows:
Revocation of Acceptance:
COMPENSATORY 18,102.08
Misrepresentation: COMPENSATORY 2,100.00
PUNITIVE 6,000.00
SHELIA BLANKENSHIP
FOREPERSON”

Thomas moved for a new trial on the basis that it was error to give both the restitution instruction based on rescission and the damages instruction based on affirmance and the allegation of deceit, and that the result had been a double recovery.

The objection

The Crafts contend the objection made to the instructions was not sufficiently specific and that it was only an objection stating there was insufficient evidence to show the car was anything other than a new car as it had been represented.

The objection was not only specific, it was right on the point which is being argued on appeal. Although counsel for Thomas threw in a remark about the insufficiency of the evidence to prove deceit, that did not detract from his making the exact point that the jurors should not be allowed to award both restitution and damages for deceit, as that would amount to a double recovery.

If the instructions, taken together, were erroneous because they failed to tell the jury that restitution and damages could only be awarded in the alternative, the objection was sufficient to inform the trial court of the problem. An objection to an erroneous instruction is sufficient if it is timely and states a valid reason. Ark. R. Civ. P. 51; Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984). The rule requires a proffer of an instruction only when the objection is to the “failure to instruct on any issue.”

While it might be argued that the court had failed to instruct on the “issue” of the alternative nature of the remedies available to the jury, and thus Thomas should have proffered an instruction on that point, we do not think that is the intent of the rule. We conclude that the “issues” contemplated by the rule were, in this case, the ones on which instructions had been given, i.e., the Crafts’ entitlement to revocation of acceptance and recovery for deceit.

Double recovery

In response to Thomas’s argument that the instructions permitted a double recovery, the Crafts contend that Ark. Code Ann. § 4-2-721 (1987) permits the court to submit the case on theories of rescission and affirmance simultaneously. That section provides:

Remedies for material misrepresentation or fraud include all remedies available under this chapter for nonfraudulent breach. Neither rescission or a claim for rescission of the contract nor rejection or return of the goods shall bar or be deemed inconsistent with a claim for damages or other remedy.

Nothing in this section says one may recover both a restitutionary award based on rescission and damages for fraud. It is no more than a repudiation of the preliminary election of remedies doctrine. The fact that “claims” based on revocation of acceptance of goods or rescission (disaffirmance of contract) and deceit (contract affirmance) are not to be regarded as inconsistent does not mean that “recoveries” on both theories are to be permitted.

The Crafts cite Ozark Kenworth, Inc. v. Neidecker, 283 Ark. 196, 672 S.W.2d 899 (1984), for the proposition that one may recover both restitution of the purchase price and damages for deceit. In that case, there was evidence that the purchaser of a defective truck had attempted to revoke acceptance, however, no verdict form which would have permitted recovery on that theory was presented to the jury. The jury awarded damages for breach of warranty and fraud. We reversed the judgment because the court instructed only on “incidental” damages and did not tell the jury the measure of recovery for breach of warranty or for deceit. Clearly, it was not a case in which we approved a restitutionary award of return of the purchase price in addition to a damages award for the difference between the value of the truck as received and its value had it been as represented.

We need not discuss the cases from other jurisdictions cited by the Crafts except to say that in none of them was there a recovery of both the purchase price, based on revocation of acceptance, and compensatory damages for deceit, thus giving the claimant both the benefit of the bargain and the benefit of rescission. Under no circumstances would we permit, over proper objection, both recoveries. Such a double recovery would be unconscionable.

While we might suspect that, had it been instructed properly, the jury might have awarded the Crafts their purchase price plus consequential and incidental damages only, we are in no position to say that would necessarily have been the result, thus we must reverse and remand the case for a new trial. Upon retrial, presumably the Crafts will elect between seeking to have the jury instructed on the law of revocation of acceptance and restitution, on the one hand, and the law of the tort of deceit on the other.

Punitive damages

Thomas has argued that punitive damages may not be awarded except in conjunction with compensatory tort damages. The Crafts cite cases from other jurisdictions where, upon proof of fraud, punitive damages have been awarded in addition to a restitutionary award, despite the lack of an award of out of pocket or benefit of the bargain damages for fraud. E.g., Hutchison v. Pyburn, 567 S.W.2d 762 (Tenn. App. 1977). They argue specifically that the consequential or incidental damages awarded in this case by the jury in addition to the return of the purchase price constitutes actual or compensatory damages upon which punitive damages may be based. Cases decided in other jurisdictions so hold. See, e.g., Fousel v. Ted Walker Mobile Homes, Inc., 602 P.2d 507 (Ariz. App. 1979); Robinson v. Katz, 610 P.2d 201 (N.M. App. 1980); Z.D. Howard Co. v. Cartwright, 537 S.W.2d 345 (Okla. 1975). In Grandi v. LeSage, 74 N.M. 799, 399 P.2d 285 (1965), punitive damages were allowed where the only other recovery was restitution of the purchase price of a misrepresented horse plus consequential damages.

We can think of no reason why punitive damages should not accompany a restitutionary award if there is proof of the elements of deceit as a basis of revocation of acceptance or extrajudicial rescission. The purpose of punitive damages is deterrence and punishment of wrongdoing. Holmes v. Holingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961). See Dongary Holstein Leasing, Inc. v. Covington, 293 Ark. 112, 732 S.W.2d 465 (1987). The decision of a buyer of goods to revoke acceptance and seek a return of the purchase price should not immunize the seller from punitive damages for which he might be liable if the buyer chose the alternative damages remedy.

The reason for requiring an ultimate election between restitution based on rescission and compensatory damages resulting from the tort of deceit is the prevention of a double recovery. D. Dobbs, Remedies, p. 634 (1973). That reason should not prevent a party whose action “sounds in contract” or is “ex contractu” from recovering punitive damages where the basis of rescission or revocation of acceptance is conduct which constitutes the tort of deceit.

We do not decide whether the evidence in the record before us now would support a deceit action or punitive damages. Punitive damages are available in a deceit action. Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980). Cf. Satterfield v. Rebsamen Ford Inc., 253 Ark. 181, 485 S.W.2d 192 (1972). Here we hold they are available also to a claimant whose claim based on rescission or revocation of acceptance results in restitution and consequential or incidental damages.

Reversed and remanded.


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    Major Allen JONES v. STATE of Arkansas
    CR 88-153
    763 S.W.2d 655
    Supreme Court of Arkansas
    Opinion delivered January 23, 1989

      Greene Law Offices, by: Robert E. Adcock, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was convicted of raping a thirteen-year-old girl and was sentenced by a jury to sixty (60) years imprisonment. On appeal, he argues the evidence was insufficient to support his conviction. We disagree, and therefore affirm.

On appellate review of a criminal case, we view the evidence in the light most favorable to the state to determine whether the verdict is supported by substantial evidence. Williams v. State, 294 Ark. 345, 742 S.W.2d 932 (1988). Evidence is substantial if the jury could have reached its conclusion without having to resort to speculation or conjecture. Id. A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen (14) years of age. Ark. Code Ann. § 5-14-103(a)(3) (1987). In rape cases, the requirement of substantial evidence is satisfied by the rape victim’s testimony. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988); Cope v. State, 292 Ark. 391, 730 S.W.2d 242 (1987). When determining the sufficiency of the evidence, we consider only the testimony that tends to support the verdict of guilty. See, e.g., Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).

In reviewing the record in the present case, we conclude the state’s evidence clearly supports the appellant’s rape conviction. The prosecutrix testified that on October 30, 1987, she missed her school bus, and that, as she was returning from phoning her mother from a public phone, the appellant called for her to come over to talk to him. According to her testimony, he was standing on the outside stairs of his apartment complex. The prosecutrix stated that she knew the appellant. After she went over to talk with him, she testified that the appellant forced her to go upstairs with him. Once inside his apartment, she stated that the appellant took her to the back bedroom and pulled down her pants and underpants, tore her shirt, and put his penis in her vagina. The prosecutrix stated that the rape occurred between 8:30 and 9:00 a.m. During her testimony, she identified pictures of the appellant’s apartment as being the place where she was raped.

While the rape victim’s testimony alone meets the requirement of substantial evidence, the state also provided evidence to corroborate the victim’s account. A forensic serologist testified that semen was found on the prosecutrix’s vaginal swabs and smear slide, underpants, and jeans. The investigating officers testified that when the appellant was arrested in his apartment on the same day that the rape occurred, he was wearing clothes that fit the description the prosecutrix had given. In addition, during the search of the apartment, one of the officers found a baseball cap, bearing the name Ricky, on the top bunk in the back bedroom, where the prosecutrix had told the police the appellant put it before he raped her.

Appellant offered alibi testimony and other evidence in an attempt to discredit the evidence presented by the state. We point out, however, that it is the jury’s job to judge the credibility of the witnesses, and apparently the jury chose to believe the state’s case. See Lewis, 295 Ark. 499, 749 S.W.2d 672.

For the reasons stated above, we affirm.