author: P. A. Hollingsworth, Justice.

text:
    IN THE MATTER OF THE ESTATE OF Nora WELLS, An Incompetent, J. C. WELLS and Irene BAIN on Their Own Behalf and On Behalf of Nora WELLS v. Elvan G. SANFORD, Trustee, and Elvan G. SANFORD as Guardian of the ESTATE OF Nora WELLS, An Incompetent, and Elvan G. SANFORD & Koleta SANFORD, His Wife
    83-240
    663 S.W.2d 174
    Supreme Court of Arkansas
    Opinion delivered January 23, 1984

      Roy Danuser and Griffin Smith, Jr., for appellant.

      Poynter, Huckaba ér Gearhart, P.A., by: Terry M. Poynter, for appellee.
   P. A. Hollingsworth, Justice.

The central issue raised in this appeal is whether the assets of a testamentary trust should be used to support a woman who has been declared incompetent before her own assets, as controlled by her guardian, are used.

Nora Wells was declared physically incompetent in 1974 and Elvan G. Sanford, one of the appellees, was appointed her guardian. In 1977, Hiram Wells, Nora Wells’ son, executed his Last Will and Testament. The Will contained the following provisions:

II
If my mother, Nora Wells, is living at the time of my death, then I give, devise, and bequeath my entire estate to Elvan G. Sanford, as Trustee to be held in trust for the use and benefit of my mother as long as she lives. I authorize the Trustee to expend for the support and maintenance of the said Nora Wells, such sums as may be necessary as long as she lives.
III
If my mother, Nora Wells, is not living at the time of my death, then I give, devise, and bequeath my estate to Elvan G. Sanford and/or Koleta J. Sanford, his wife, to have and to hold as their absolute property. If my mother, Nora Wells, survives me, any of my estate left at her death I hereby direct said Elvan G. Sanford and/or Koleta J. Sanford to receive any and all of balance of estate left as their absolute property.

Hiram Wells died in 1979 leaving only real property as the corpus of the testamentary trust. Nora Wells, now 91, resides in a nursing home and owes an unpaid bill there of $23,749.74. Her property consists solely of: (1) 109 acres of realty owned by her in fee and subject to the guardianship of Elvan Sanford; and (2) her life interest in the 80 acres of realty constituting the testamentary trust of Hiram Wells. Sanford, as guardian, petitioned the Baxter County Probate Court for permission to sell the guardianship assets of Nora Wells and apply the proceeds to her support. Subsequently, J. C. Wells and Irene Bain, appellants here and Nora Wells’ children, petitioned the Baxter County Chancery Court to direct the trustee to sell the trust assets and apply those proceeds for Nora Wells’ support. The cases were consolidated for trial. The court delayed ruling on the petition to sell the guardianship assets until a new guardian was appointed and joined in the petition. The court dismissed the appellants’ petition to sell the trust assets finding that Hiram Wells intended that his testamentary trust be used to support Nora Wells only in the event her own property was insufficient to maintain her. We reverse.

Although the appellants failed to include a jurisdictional statement as mandated by Ark. Sup. Ct. R. 29 (2), this case comes to us under Rule 29 (1) (p), since it presents a question about the construction of a will.

In his decree, the chancellor found that if Nora Wells had predeceased Hiram Wells, all of his estate would have gone to the Sanfords. Since Hiram predeceased Nora, his property went into trust for the “use and benefit” of Nora during her life, with the balance of the trust estate going to the Sanfords. The chancellor stated:

5. That Nora Wells has ample assets which may be used for her.
6. The central issue of the case is whether or not Hiram intended that the phrase “sums necessary for the support and maintenance” of Nora Wells means that his estate was to be appropriated to maintain Nora even when she had sufficient means or whether he intended to have his estate held available for her support in the event those means were exhausted.
7. In the literal sense, no funds would be “necessary” for Nora’s support until her own ran out. In addition, if Hiram’s funds are used to support Nora before her funds run out, the effect is to increase Nora’s estate and possibly benefit Hiram’s brother and sister whom Hiram intended to pass in favor of the Sanfords. On the other hand, if Nora’s funds were used first, she will still be taken care of, a result consistent with Hiram’s purpose, but any funds remaining will ultimately benefit the Sanfords, who were the next objects of his bounty.

We have said before that unless something appears in the will indicating a different purpose, it is ordinarily presumed that the testator intended the beneficiary to be supported and maintained from estate income or from sale of part of the corpus. Cross v. Pharr, 215 Ark. 463, 221 S.W.2d 24 (1949).

The intention of the testator is derived from the four corners of the will, considering the language used and giving meaning to all of its provisions. Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977). We construe the words and sentences used in a will in their ordinary sense in order to arrive at the testator’s true intention. Fowler v. Hogue, Trustee, 276 Ark. 416, 635 S.W.2d 274 (1982). We have held that when there is nothing in the will to indicate that the testator did not understand the meaning of the words he used, we must presume that he did. Lewis v. Bowlin, 237 Ark. 947, 377 S.W.2d 608 (1964). Furthermore, in Lewis we quoted our holding in Moody v. Walker, 3 Ark. 147 (1840) where we stated:

When technical phrases or terms of art are used, it is fair to presume that the testator understood their meaning, and that they expressed the intention of his will, according to their import and signification. When certain terms or words have by repeated adjudication received a precise, definite and legal construction, if the testator in making his will uses such terms or similar. expressions, they shall be construed according to their legal effect.

Under Cross, supra, and its progeny we have given the term “necessary for support” a legal construction. We have held that a trust written in those terms is to be used to support the beneficiary regardless of the beneficiary’s own assets. We must presume that Hiram Wells intended that the words he used would be given their legal effect. To find, as the chancellor did, that Hiram intended that his mother use her own assets first, thereby decreasing her estate, expressly so that Hiram’s brother and sister would not inherit their mother’s estate, would be allowing the testator to control the disposition of someone else’s property. It is axiomatic that a testator can only convey by will such property as he owns and that he cannot, through his will, control the estate of another. Refeld et al Executors v. Bellette et al, 14 Ark. 148 (1853); 94 C.J.S. Wills § 76 (1956).

The appellants rely on Cross v. Pharr, supra, which involves a devise of property by the testator to F. E. Pharr in the nature of a trust for the lifetime of the testator’s wife. During her life, the trustee was to pay Mrs. Pharr the income from the estate “when and as the same may be needed by my said wife.” In Cross, the parties claimed that the widow’s private means were sufficient for her support. We held:

It is true that the will directs payment of the net income “when and as the same may be needed;” and should we construe J. W. Pharr’s plan as one reserving the income to actual necessities arising after Mrs. Pharr had exhausted her own funds, appellants would be correct. This, however, is not sufficiently shown to have been the testator’s desire. It is pointed out that the income, when apportioned to the entire period affected, amounted to but $525 a year. Unless something appears in the will indicating a different purpose, it is ordinarily presumed that the trustor intended the beneficiary to be supported and maintained from estate income, or as is sometimes the case, from sale of a part of the corpus, (emphasis added)

That case mandates a similar result here. Our decision in Cross was based on what was sufficiently shown to have been the testator’s desire based on what appeared in the will. Similarly, in Martin v. Simmons First Nat’l Bank, Trustee, 250 Ark. 774, 467 S.W.2d 165 (1971), we held that the appellant was not required to exhaust all of her resources before her medical expenses could be paid for out of the corpus of a trust left by her sister. In both cases, as here, we found that the appellant was the primary object of the testator’s bounty, with others given consideration incidentally.

Here the clause in Hiram Wells’ will created a presumption that he intended that Nora Wells be supported by the trust assets during her lifetime. Under Cross that is sufficient. Absent language by the testator manifesting an intention that the trust assets be withheld until the guardianship assets were exhausted, the presumption is that the trust assets are available for use immediately. Our different conclusions do not result so much from a disagreement with the chancellor on the law involved as from its application to the facts in this case.

The function of a court in dealing with a will is purely judicial; and its sole duty and its only power in the premises is to construe and enforce the will, not to make for the testator another will which might appear to the court more equitable or more in accordance with what the court might believe to have been the testator’s unexpressed intentions. Park v. Holloman, 210 Ark. 288, 195 S.W.2d 546(1946).

The appellants’ second point on appeal concerns whether, when the trust assets consist wholly of real property, the trustee may sell the realty when the trust language itself does not expressly authorize the sale. The chancellor did not reach this point, having found that Nora’s assets were to be depleted before the trust assets would need to be sold. However, under the terms of Hiram’s will, his entire estate was to be held in trust for the use and benefit of his mother. Sanford, as the Trustee, was authorized to expend such sums as may be necessary for that purpose. We held in Pickering v. Loomis, Trustee, 199 Ark. 720, 135 S.W.2d 833 (1940), that:

[T]he trustee must be deemed to possess or be able to exercise such powers as are necessary for the purposes of the trust. There are no words expressly empowering a sale of any of the property, but such power will be implied when a sale may be necessary ... or (sic) the trustee to comply with the other provisions of the will.

Therefore, we hold that Sanford, as Trustee, has the authority to sell the real estate property in order to pay the necessary sums to Nora Wells.

The appellants’ final point on appeal is not properly before this court. The appellants argue that judicial supervision of the trust is not inappropriate because of the conflict of interest inherent, in Sanford’s position as trustee of the trust, remainderman of the trust, and guardian of the trust’s beneficiary. A new guardian has been appointed for Nora Wells. The appellees counter by quoting our decision in Thompson, Trustee v. Dunlap, 244 Ark. 178, 424 S.W.2d 360 (1968), where we held that a court may not, on its own motion, supervise the administration of the trust, absent a direction by the creator of the trust that it be so supervised. Judicial supervision is not an issue here. Our decision today directs that the trust assets be used to support Nora Wells, irrespective of her own assets, and authorizes the sale of those assets, if necessary, to comply with our decision. We leave undisturbed the trustee’s discretion as to the invasion of the trust assets. Absent an abuse of that discretion, we do not interfere. Restatement (Second) of Trusts § 187 (1959).

Reversed.


source: Caselaw Access Project

author: Richard B. Adkisson, Chief Justice. P. A. Hollingsworth, Justice,

license: Public Domain

text:
    Fred Lee HOGAN v. STATE of Arkansas
    CR 83-101
    663 S.W.2d 726
    Supreme Court of Arkansas
    Opinion delivered January 30, 1984

      Ken Cook, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

A Crittenden County jury found appellant, Fred Lee Hogan, guilty of capital felony murder and fixed his punishment at life imprisonment without parole. The information alleged that appellant had caused the death of Martha Marie Murray in the course of and in the furtherance of the commission of the crimes of rape and kidnapping. On appeal we affirm.

On May 25, 1982, the victim’s body was found floating in the Mississippi River near the Crittenden County bank. The body was badly decomposed. Positive identification was made by medical records. The autopsy report identified the cause of death as blunt trauma to the front, side, and back of the right side of the chest. Fractures of the rib cage were extensive.

The victim was last seen alive on March 24, 1982, around 11:15p.m. at the Fast Check Food Store on Kentucky Street in Memphis, Tennessee. A co-worker, Richard Nallin, testified that he and the victim had gotten off work at 11:00 p.m. that evening, and, as was their custom, each had stopped by the Fast Check Food Store on their way home. Nallin testified that when the victim arrived at the store, he was seated in his truck talking out the window to a friend seated in another car. He observed the victim drive up to the store alone, get out of her car, return to her car, and drive away. Nallin identified appellant as the person who had approached the store from behind his truck and was standing near the front door of the store when the victim entered. Nallin stated that after he saw the victim enter the store, he did not see appellant again nor did he see a second person in the victim’s automobile as she drove away. Nallin testified that ordinarily he would pass the victim on the freeway after they had both left the store, but he did not pass her on this date.

Witness, James Houston, testified that he had known appellant about twenty years. He stated that on March 24, 1982, he first saw appellant at about 6:30 p.m., that they were drinking and had made several trips to the liquor store on Kansas and Crump Streets, and that they had gotten some beer at the Fast Check Store. Later that evening, appellant left Houston’s mother’s house located about three blocks from the Fast Check Store, saying that he was going home. Houston did not know where appellant actually went. Houston further testified that he and appellant knew the “guy who ran the store” and that they went there often. After the night of March 24, however, he did not see appellant “around the Fast Check anymore.”

Around 3:00 p.m., March 26, 1982, the victim’s 1974 Ford Maverick automobile was found in Arkansas about 1,000 yards west of the west end of the Memphis-Arkansas Bridge. It was parked on a small dirt road that runs parallel with Interstate 55. Blood was found smudged in various parts of the automobile. The victim’s blood-stained, torn bra was found in the center of the front seat. In the center of the front floor board were found the victim’s pink panties, white parity girdle, panty hose, and a knee brace; these items were found wadded up together and inside each other. Dr. Charles Dorsey, Chief Forensic Serologist of the Arkansas State Crime Lab, testified that semen found on the torn panties and girdle came from a type “O” secretor and was loaded with spermatozoal cells. Appellant was identified as a type “O” secretor. The victim’s husband could not have been the source of the spermatozoal cells since he had had a vasectomy. Appellant’s fingerprints were found on the dome light cover which had been removed from the light fixture.

Appellant first argues that the evidence was insufficient to prove the offense of capital felony murder, arguing that there was no evidence of kidnapping or rape. Upon appellate review, it is our responsibility to determine whether the evidence, when viewed in the light most favorable to the appellee, is substantial. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981); Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975). The test for substantial evidence is whether the jury could have reached its conclusion without having to resort to speculation and conjecture. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). In reviewing the evidence, it is clear that there is substantial evidence to support the verdict. The jury could have found that appellant either kidnapped the victim, raped or attempted to rape her, and, in the course and furtherance of these crimes, killed her. See Ark. Stat. Ann. § 41-1501(l)(a).

Since appellant did not receive the death penalty, his argument that the death penalty constitutes cruel and unusual punishment and that its arbitrary application violates due process will not be considered.

Appellant argues that the trial court erred in denying his motion to sequester the jury. The burden of proving that appellant did not receive a fair trial because of failure to sequester the jury is on the appellant. Ford v. State, 276 Ark. 98, 633 S.W.2d 3, cert. denied,_U.S._, 103 S. Ct. 389, 74 L. Ed. 2d 519 (1982). Even so, appellant offered no proof that any of the jurors were influenced by matters outside the courtroom. Whether or not the jury should be sequestered rests within the sound discretion of the trial court. No abuse of this discretion has been shown.

The trial court did not err in refusing to suppress the in-court identification of appellant. This court looks to the totality of the circumstances to determine whether the lineup procedures have been sufficient to preclude identification testimony at trial. We will not reverse the trial court’s ruling unless clearly erroneous. James & Elliott v. State, 270 Ark. 596, 605 S.W.2d 448 (1980). Appellant argues that he was the only person in the lineup wearing a green coat, and the witness, Nallin, stated ‘‘that green coat is what he had on.” But a lineup is not per se unconstitutionally suggestive merely because only one person was wearing a piece of clothing similar to the one worn by the offender. Matthews v. State, 275 Ark. 1, 627 S.W.2d 20 (1982); McGraw v. State, 262 Ark. 707, 561 S.W.2d 71 (1978). While sitting in his truck, the witness had the opportunity to observe appellant conspicuously staring at him while walking from behind his truck to the front of the store. The witness further observed appellant standing under four flood lights in front of the store while the victim was walking by. Further, the witness was firm and unequivocal in his identification. We cannot say the trial court erred in allowing the in-court identification.

Since appellant has admitted he was not prejudiced, the trial court did not err in refusing to grant a mistrial when three prospective jurors were seen reading The Commercial Appeal, a Memphis, Tennessee, newspaper.

Appellant argues the trial court erred in refusing to grant a mistrial when Officer Wilburn Marr gave an unresponsive answer to a question from appellant’s counsel regarding fingerprints the officer had taken following appellant’s arrest:

BY MR. COOK:
Q. Officer Marr, were these the first take here, or did you have to take any more than once?
A. No, sir, that’s all I took. We do have a prior arrest record on him, which we do have a fingerprint card on.

Appellant’s attorney objected stating:

[I]t is speculative as to the effect they [the jury] would give it. I don’t see any way — Certainly, it can’t help us, and I think it was probably much more prejudicial than it was probative of the fact, since I hadn’t even asked him about that. He just simply volunteered it.

The trial court denied the motion stating:

[T]he officer’s response could well have been considered by him as being pertinent to the question. I didn’t get the impression at all that it was a gratuitous or deliberate effort on the officer’s part to interject anything improper in this lawsuit, and I don’t think the harm, if any, that was done, is sufficient to justify the extreme remedy of a mistrial.

Whether or not to declare a mistrial under the circumstances of this case rests in the sound discretion of the trial court. Nolen v. State, 278 Ark. 17, 643 S.W.2d 259 (1982). Here we cannot say the court abused its discretion.

Appellant argues that the trial court erred in allowing the state during the penalty phase of the trial to introduce into evidence appellant’s recent rape convictions for the purpose of showing aggravating circumstances. But appellant candidly admits on appeal that no prejudice resulted since the jury fixed appellant’s punishment at life without parole rather than death.

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

Affirmed.

Purtle, Dudley and Hollingsworth, JJ., dissent.

P. A. Hollingsworth, Justice,

dissenting, The majority states that there is substantial evidence to support the conviction of the appellant of capital felony murder. I disagree.

The appellant maintains that the state failed to prove beyond a reasonable doubt that a murder, kidnapping or rape occurred. To prove capital murder, the State must prove murder and one of the two underlying felonies.

The evidence at the trial showed that the appellant was seen at the Fast Check store where the victim was last seen. A co-worker with the victim saw both the appellant and the victim at the store at the same time and later picked the appellant out of a line-up. The witness saw the victim drive off. He did not see the appellant in the car when the victim drove off. The witness testified he would customarily pass the victim on his way home from work since they both traveled the same route. On the night of the murder, he did not see her after she drove away. The victim’s car was last seen on Wednesday night before being found on Friday afternoon west of and under the old Memphis Arkansas Bridge. There were signs of a struggle both in the car and in the area around the car. The dirt and grass on the driver’s side was scuffed and knocked down. The car was unlocked and the keys were found on the ground to the right rear of the vehicle. A yellow cable with blood on it was found near the keys. In the car, officers found articles of the victim’s clothing with blood spots on them and blood on various parts of the car. A fingerprint was discovered on the dome light which was matched with one of the appellant’s. The forensic expert testified that the blood found in the car was blood type “O” which was the blood type of the victim, her husband, and the appellant. The undergarments were found to contain a large quantity of semen from a person with blood type “O.”

The victim’s body was found in the river two months later. The body was identified by a dentist as the victim’s. The cause of death was from blunt trauma to the chest. The expert witness testified that the cable could have produced the type of injury and wound on the victim. The expert testified that the victim was either dead or dying when she was placed in the water.

The appellant claims that the court should have directed a verdict for acquittal at the close of the State’s case because of the state’s failure to prove every element of the offense beyond a reasonable doubt as they are required by law. Small v. State, 5 Ark. App. 87, 632 S.W.2d 448 (1982). It appears the majority has allowed the prosecution to prove the conduct charged to the appellant by a preponderance of the evidence. The standard of proof in criminal cases is beyond a reasonable doubt. This case changes that standard.

The Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship 397 U.S. 358, 364 (1970). This standard of proof “plays a vital role in the American scheme of criminal procedure,” because it operates to give “concrete substance” to the presumption of innocence, to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding. Id. at 363.

This evidence was entirely circumstantial. I find it insufficient to support the jury verdict. The majority states there is substantial evidence but fails to state what that evidence is. The recognized test for substantial evidence is whether the jury could have reached its conclusion without having to resort to speculation and conjecture. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). This conviction is based upon evidence which lacks important elements as shown in cases cited by the majority where we found circumstantial evidence to be sufficient. In this case, there was no testimony by the victim concerning the rape that was corroborated by the doctor who examined her; nor was there testimony of witnesses that was probative on the issue of identification of the assailant. Such identification would serve to connect the appellant with the crime and thereby establish his identity as the perpetrator as shown in Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). Under this record, the circumstances could be j ust as consistent with the guilt of innumerable people who might have had access to the victim on the night in question.

The appellant also argues that the trial court erred when it denied his motion for mistrail after a police officer volunteered testimony about the appellant’s prior arrest record. During the trial, Memphis Police Officer Wilburn R. Marr testified that he made an ink fingerprint of the appellant when he was arrested. During the cross examination by appellant’s counsel, the following occurred:

Q. Officer Marr, were these the first taken here, or did you have to take any more than once?
A. No sir, that’s all I took. We do have a prior arrest record on him, which we do have a fingerprint card on. (emphasis added)

The trial judge ruled that the officer’s response could well have been considered by him as being pertinent to the question and did not appear to be a deliberate effort by the officer to interject improper matters into the trial. Although we have held that when the appellant injects the matter into a case by questions on cross-examination, he cannot complain of what develops, that is not the situation here. The appellant’s attorney askéd the officer if he had to take the fignerprints more than once. The officer’s initial response of “No sir, that’s all I took,” was a responsive answer to the question. The second statement served no purpose, other than to inform the jury that the appellant had an arrest record. The judge overruled the appellant’s objection and did not admonish the jury to disregard the second statement, which would have served to nullify the prejudicial effect of that statement. See Back v. Duncan, 246 Ark. 494, 438 S.W.2d 690 (1969). The court’s failure to admonish the jury was error. In the absence of such an admonition, an error is presumed to be prejudicial unless the contrary affirmatively appears. Back, supra.

In addition, the trial court committed reversible error when it failed to instruct the jury on the lesser included offenses to capital murder. Prior to giving any instructions, the judge stated:

Since the decision has been made not to include any lesser included offenses, either instruction or verdict form, I am removing those transitional instructions which mention those.

The judge did not explain why the decision was made and the record does not reflect any discussion that may have taken place. We have held that there is no error in the refusal to give an instruction where there is no evidence to support the giving of that instruction. Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981). The appellant in Couch was also charged with capital murder. There, we held that “[i]f there had been even slight evidence that appellant was guilty of murder in the first degree we would reverse and require an instruction on that lesser included offense.” First degree murder is defined in Ark. Stat. Ann. § 41-1502 (Repl. 1977) as:

(1) A person commits murder in the first degree if:
(a) acting alone or with one or more other persons, he commits or attempts to commit a felony, and in the course of and in the furtherance of the felony or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; or
(b) with the premeditated and deliberate purpose of causing the death of another person, he causes the death of any person.

Second degree murder is defined by Ark. Stat. Ann. § 41-1508 (Repl. 1977) as:

(1) A person commits murder in the second degree if:
(a) with the purpose of causing the death of another person, he causes the death of any person; or
(b) he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life; or
(c) with the purpose of causing serious physical injury to another person, he causes the death of any person.

I cannot say that there is not slight evidence of the appellant’s guilt of these two lesser-included offenses and therefore the jury instruction should have been given. We held in Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980) that, “[n]o right has been more seriously protected by this Court than the right of an accused to have the jury instructions on lesser offenses included in the more serious offense charged.” We addressed the same issue and reached the same conclusion in Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980), where we stated that it is error to refuse to give the instruction, “no matter how strongly the trial judge feels that the evidence weighs in favor of a finding of guilty on the most serious charge. Our strong preference for such an instruction has even induced us to approve giving it over the defendant’s objections.” Here, the appellant did not object to the failure to give the instruction. In Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1970) we reiterated our fundamental rule “that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court.” Exceptions have been made to that rule however, as was pointed out in Wicks. One exception dealt with two cases in which the death penalty was imposed where, “we did not require an objection the the trial court’s failure to bring to the jury’s attention a matter essential to its consideration of the death penalty itself.” Wicks, supra. Here, the trial court failed to bring to the jury’s attention a matter essential to the consideration of a sentence of life without parole. By omitting the instructions on lesser included offenses, the court presented the jury with the option of convicting the appellant of capital murder and sentencing him to death or life without parole, or acquitting him. Two other exceptions mentioned in Wicks are applicable. One involves the trial court’s duty to intervene in the absence of an obj ection, to correct a serious error, and the other is based on Ark. Unif. R. Evid. 103 (d) “Nothing in this rule precludes taking notice of errors affecting substantial rights although they were not brought to the attention of the court.” The failure to give the required instructions is a serious error and affects a substantial right of the appellant. Although appellant did not present this argument on appeal, it is properly before us because Ark. Sup. Ct. R. 11 (f), requires this court to review all errors prejudicial to the appellant when the sentence is death or life imprisonment.

The appellant may be guilty. A jury of his peers found that he is. A majority of this Court agrees. But a consideration of the evidence has convinced the dissent that the evidence is too slight to support the underlying charges of rape and kidnapping and therefore to support the verdict. Justice would be better served to submit the facts to another j ury. In view of the other errors alleged and their cumulative prejudicial effect, I am of the opinion that a new trial should have been granted.

Purtle, J., joins in this dissent.

Dudley, J., dissents.


author: George Rose Smith, Justice. Darrell Hickman, Justice,

text:
    Stephen Martin DAY v. Sara Shinault DAY
    83-207
    663 S.W.2d 719
    Supreme Court of Arkansas
    Opinion delivered January 30, 1984

      Storey & McCord, by: William A. Storey, for appellant.

      Terry R. Kirkpatrick, for appellee.

      William George Myers, ior amicus curiae Robert C. Haring.
   George Rose Smith, Justice.

In this divorce case the basic question on appeal is whether the chancellor was right in holding that the appellant husband’s interest in the retirement plan sponsored by his employer is “marital property” subject to allocation under our present statute governing the division of property in divorce cases. Ark. Stat. Ann. § 34-1214 (Supp. 1983). The chancellor was right.

The facts are free from dispute. The couple married in 1953 and lived together for 29 years, during which they had six children, all but one of whom have reached maturity. In 1981 Mrs. Day brought this suit for divorce, which was contested only as to the marital property. The decree granted a divorce to Mrs. Day, ordered that the family home be sold and the proceeds divided equally, directed the husband to pay alimony for 24 months and child support for the minor child, and divided the personal property, including the retirement-plan interest now in dispute. The appeal comes to us under Rule 29 (1) (c).

Dr. Day has been employed by the University of Arkansas since 1961, first as a physics professor and later as an associate dean. He participates in the University’s pension plan by making monthly contributions of 10% of his salary, which the University matches with equal contributions. At the time of trial the total contributions by and for Dr. Day had totaled $62,498.10. The accumulated value of his interest in the plan was $95,425.03.

Dr. Day’s interest is vested in the sense that it cannot be diminished by the University and is not dependent upon his continued employment there. The funds in the plan are administered by the Teachers Insurance and Annuity Association and College Retirement Equities Fund, known as TIAA-CREF. The TIAA funds are invested in bonds and mortgages and provide guaranteed fixed annuities for participants in the plan. The CREF funds are invested in stocks and provide variable annuities that may fluctuate with the market.

Under the plan, Dr. Day cannot withdraw the funds standing to his credit, which have no loan or surrender value, and cannot transfer his interest. He can, however, stop making contributions at any time and begin receiving his annuities. Several lifetime options are available, with or without a guaranteed minimum number of payments and with or without a co-beneficiary. Only Dr. Day can make the choice of a particular option and designate the beneficiary if funds remain at his death. In summary, the plan is a combination of fixed and variable annuities which cannot be paid in a lump sum, have no loan value, and cannot be transferred.

The chancellor found Dr. Day’s interest in the plan to be marital property and awarded half of the $95,425.03 in benefits to Mrs. Day. Under the decree, when, but only when, Dr. Day elects to begin receiving the annuities, Mrs. Day will receive her benefits based only upon the half interest awarded to her. Any contributions made by or for Dr. Day after the date of the decree will be added to his half interest and accrue only to his benefit. Dr. Day is required to maintain Mrs. Day as the beneficiary of her half of the accounts. A letter from TIAA-CREF indicates that there is available a procedure by which the terms of the decree can be carried into effect.

In Dr. Day’s briefs he asks us to hold that his interest in the pension plan is his separate property, immune from any claim asserted by Mrs. Day. To support his position he relies upon several of our recent decisions, which we review briefly.

In Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980), we noted that under our earlier statute, Ark. Stat. Ann. § 34-1214 (Repl. 1962), vested pension benefits not yet due and payable were not “personal property” as to which the wife was entitled to one third as a matter of right. See, Knopf v. Knopf, 264 Ark. 946, 576 S.W.2d 193 (1979), and earlier cases. After the adoption of Act 705 of 1979 we failed to give full effect to the new law and instead adhered to the position we had taken under a quite different statute. In Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980), we decided that a military pension, currently being paid but not transferable, was not marital property. We followed that reasoning in Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982), concluding that an employee’s interest in a capital account set up for him was not marital property, because it was not “fully distributive.” Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983), reached a similar result. On the other hand, a husband’s interest in a profit-sharing trust was deemed to be marital property, because it was subject to his withdrawal. Bachman v. Bachman, 274 Ark. 23, 621 S.W.2d 701 (1981).

We now realize that we have inadvertently failed to recognize the new concept of “marital property,” created by Act 705 of 1979, as amended. That statute defines marital property as all property acquired by either spouse subsequent to the marriage, with exceptions not important here. Section 34-1214 (Supp. 1983). That law directs that all marital property be distributed equally unless the court finds that division inequitable. In balancing the equities the court is to consider the length of the marriage, the parties’ ages and occupations, their skills and employability, their respective needs, the contribution — “including services as a homemaker” — of each party to the acquisition of the property, and other enumerated matters. We have recently stressed such homemaking services in holding that where the wife was the breadwinner and the husband the homemaker, he was entitled to half the marital property acquired by the wife in her own name and with her own earnings. Stuart v. Stuart, 280 Ark. 546, 660 S.W.2d 162 (1983). Of course, the converse must also be true.

Under the recent holdings of the Supreme Court, spouses must be treated equally in the absence of a valid reason for making a distinction. Our 1979 law was enacted pursuant to that mandate and must be construed in harmony with that intent. It is easy to demonstrate that the legislative purpose will be frustrated if controlling differences are drawn between pensions vested and currently payable and those that are vested but payable in the future. If, for example, Dr. Day had made a monthly deposit in a savings account for 20 years, that money would be marital property in a divorce case. The same rule would apply if, a year before the divorce, he had in good faith decided to invest the money in an annuity payable upon his future retirement. His interest in the annuity would also be marital property. That in substance is the situation in this case: Dr. Day has used part of the family’s money to buy the annuities he now seeks to exempt from their proper classification as marital property. Under the law, however, we must recognize that Mrs. Day also contributed to the acquisition of the annuities by service as a homemaker and by bearing the six children and bringing them up.

In a strikingly parallel situation the Supreme Court of California has experienced a similar change in its views. California is a community property state. Back in 1941 the court held that nonvested pension rights are not property but mere expectancies, and thus not assets to be divided upon the dissolution of a marriage. French v. French, 17 Cal. 2d 775, 112 P.2d 235, 134 A.L.R. 366 (1941). But after observing the inequities brought about by the French holding during the ensuing 35 years, the California court unanimously reversed its position by overruling French in what has become the leading case in this area of law. Re Marriage of Brown, 15 Cal. 3d 838, 126 Cal. Rptr. 633, 544 P. 2d 561, 94 A.L.R. 3d 164 (1976). Two paragraphs from the Brown opinion are applicable to the case at hand:

We have concluded, however, that the French court’s characterization of nonvested pension rights as expectancies errs. The term expectancy describes the interest of a person who merely foresees that he might receive a future beneficence, such as the interest of an heir apparent ... or of a beneficiary designated by a living insured who has a right to change the beneficiary. ... As these examples demonstrate, the defining characteristic of an expectancy is that its holder has no enforceable right to his beneficence.
* * * *
We conclude that French v. French and subsequent cases erred in characterizing nonvested rights as expectancies and in denying the trial courts the authority to divide such rights as community property. This mischaracterization of pension rights has, and unless overturned, will continue to result in inequitable division of community assets. Over the past decades, pension benefits have become an increasingly significant part of the consideration earned by the employee for his services. As the date of vesting and retirement approaches, the value of the pension right grows until it often represents the most important asset of the marital community. ... A division of community property which awards one spouse the entire value of this asset, without any offsetting award to the other spouse, does not represent that equal division of community property contemplated by Civil Code section 4800.

The court explained that it was construing a “vested” pension right to be one that cannot be unilaterally terminated by the employer without also terminating the employment relationship. In that sense, Dr. Day’s annuities are vested.

As the A.L.R. annotation to the Brown case shows, virtually all courts recognize or assume that pension rights are “property.” In appropriate cases the chancellor may balance the equities by awarding the divorced wife alimony commensurate with the husband’s ability to pay, taking his pension rights into consideration. In other cases — and this is one — that solution is not satisfactory, for an award of alimony and a division of marital property serve different purposes. Here the chancellor awarded Mrs. Day monthly alimony for two years, to permit her to take college training that will enable her to support herself as a teacher. But the couple’s most valuable asset is Dr. Day’s vested $95,000 interest in the pension plan. In view of Dr. Day’s present age, 52, it is uncertain when he will retire and begin to receive the annuities, in amounts not now foreseeable. Consequently, the chancellor’s decision to defer Mrs. Day’s realization of income from the pension plan appears to have been the wisest course available.

In holding that Dr. Day’s interest in the pension plan is properly found to be marital property in this case, we are not attempting to lay down inflexible rules for the future. To the contrary, Section 34-1214 allows leeway for the exercise of the chancellor’s best judgment, for it provides that all marital property shall be divided equally “unless the court finds such a division to be inequitable.” What we do hold is simply that earnings or other property acquired by each spouse must be treated as marital property, unless falling within one of the statutory exceptions, and neither one can deprive the other of any interest in such property by putting it temporarily beyond his or her own control, as by the purchase of annuities, participation in a retirement plan, or other device for postponing full enjoyment of the property.

As a second point for reversal the appellant argues that treating his equity in the retirement plan as marital property may be inequitable because of possible tax consequences that may be unfairly burdensome to him. This matter was not developed at the trial, nor could it have been, for the tax consequences depend upon what federal and state tax laws may be in force as much as ten or twenty years from now. The parties, however, should share the tax burden equitably. We therefore amend the decree to reserve jurisdiction in the trial court for the resolution of any tax problem that may arise.

Affirmed, as amended.

Adkisson, C.J., and Hickman, J., dissent.

Darrell Hickman, Justice,

dissenting. The majority may have “inadvertently” overlooked that in a half dozen cases we have adopted a traditional approach to marital property, but I haven’t.

Those decisions, I assume, are all overruled by this decision. Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983); Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982); Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982); Bachman v. Bachman, 274 Ark. 23, 621 S.W.2d 701 (1981); Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980); Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980); Knopf v. Knopf, 264 Ark. 946, 576 S.W.2d 193 (1979). The Potter case’s precedential value is questionable in any event.

The approach of the majority, which follows that of California, can only lead to more confusion, uncertainty and perhaps, in many cases, less equitable decisions. In the past our courts have offset any inequity in a settlement of marital property by an award of alimony, which is now available to either party. If the circumstances of the marriage, the participation of the parties in the acquisition of property, or the raising of the family, deserve some consideration in terms of money, it can be taken care of with alimony. I would not even quarrel with the decision in this case if the wife were awarded alimony in the same amount she will receive from the division of the retirement plan. But by our prior decisions the pension was not marital property on the day of the divorce. It had no cash value; it had no loan value, it could not be divided; and it could not be assigned or transferred. If Mr. Day lives, he may draw it someday. The mere fact that Mr. Day contributed a small percentage of his monthly check into the plan during their marriage should not convert it into marital property. The same argument will apply to social security benefits received by a person that is self-employed. The next extensions of the rule will be insurance benefits with no cash or loan value. They are all paid for with funds during the marriage. Some of the same logic can be applied to military pensions.

Divorce is supposed to be a final act, the severing of all possible ties between two parties, the dividing of the property they have acquired in the marriage on the date of the divorce. If the property can be divided at divorce, it should be done at that point. Russell v. Russell, supra. If it appears inequities may result regarding either party, alimony is the answer. That has been the answer of our courts and a good many other courts. See, Wilson v. Wilson, 409 N.E.2d 1169 (Ind. App. 1980); In Re Marriage of Ellis, 538 P.2d 1347 (Colo. App. 1975); Ratcliff v. Ratcliff, 586 S.W.2d 292 (Ky. App. 1979); Robert C.S. v. Barbara J.S., 434 A.2d 383 (Del. 1981), citing Paulsen v. Paulsen, supra; and In Re Marriage of Camarta, 602 P.2d 907 (Colo. App. 1979). I see no reason to abandon that rule in favor of a different approach used by California.

I would reverse the decree.

Adkisson, C.J., joins in this dissent.


author: George Rose Smith, Justice.

text:
    Richard WILLIAMS v. STATE of Arkansas
    CR 83-113
    633 S.W.2d 718
    Supreme Court of Arkansas
    Opinion delivered January 30, 1984

      Lessenberry ir Carpenter, by: Thomas M. Carpenter, for appellant.

      Steve Clark, Atty. Gen., by: Velda West Vanderbilt, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Richard Williams, represented by two paid attorneys, was convicted of aggravated robbery and theft and was sentenced to consecutive prison terms of 20 years and 5 years. No notice of appeal was filed within 30 days after the entry of the judgment on December 1, 1981. Later on, Williams employed his present counsel to seek a belated appeal on the ground that one of his attorneys, Guy J. Notte, had failed to file notice of appeal as Williams had instructed him to do. This appeal is from the trial court’s denial of a belated appeal, after a hearing. The court found that Williams, although informed of his right to appeal, had not in any way demonstrated an intention to appeal and in fact did not want to appeal until after the permitted time had expired. The case comes to this court under Rule 29 (1) (j).

A convicted defendant is not entitled to a belated appeal if he waived his right to appeal by deciding not to do so. Munn v. State, 278 Ark. 283, 644 S. W.2d 945 (1983). That is the situation in this case. At the hearing below, Williams testified that he had written to his wife about instructing Notte to file a notice of appeal, but Notte’s statement is that he was not told of Williams’s desire to appeal until the time had expired. Most important, in February, 1982, more than a month too late for an appeal, Williams wrote to his other attorney as follows:

I am in Cummins. Also I got my time card. They say that I have to do 8 years before I am eligible for release. ... I was told that I would do 5 years, by you and Guy, that [is] one reason I decided not to appeal because I put faith in you and Guy concerning this matter but now I feel that I need to file a late appeal so that I can prove my innocent or a new trial.

In view of Williams’s own statement, too late, that he had changed his mind about not appealing, the trial judge’s conclusion is not clearly erroneous.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Walter BLEVINS et al v. George WAGNON et ux
    83-220
    664 S.W.2d 198
    Supreme Court of Arkansas
    Opinion delivered January 30, 1984
    [Rehearing denied March 5, 1984.]

      Shackleford, Shackleford & Phillips, P.A. and House, Jewell, Dillon, Dover ir Dixon, P.A., by: Mark W. Nichols, for appellant.

      Gibson Law Office, by: Charles S. Gibson, for appellant.
   Darrell Hickman, Justice.

This is the second appeal of this case. In the first appeal, we decided, in an unpublished opinion, that appellees George and Sue Wagnon had an unqualified option to purchase the land and facilities which were used as a nursing home in Warren, Arkansas. After our decision, the Wagnons and Blevinses disagreed on what the purchase price would be under the option. Another suit was filed. After trial the chancellor decided the appraisal performed by a third appraiser, selected by agreement, would be the purchase price.

The appellants are Walter and Ila Blevins and their son and daughter-in-law. They make several arguments for reversal, and the corporation that the Blevinses and Wagnons formed, the Autumn Hills Nursing Center, Inc., has also appealed, alleging Sue Wagnon violated her fiduciary duty to the corporation. The Wagnons filed a cross-appeal arguing the chancellor should have awarded them damages because the appellants delayed the purchase of the property.

The chancellor, who was charged with the duty of deciding the credibility of the witnesses, weighing the evidence and balancing the equities, made his decision. We can only overturn that decision if he was clearly wrong in a resolution of a factual dispute, or wrong as a matter of law. A.R.C.P. Rule 52. We find he was neither and affirm the decree.

To completely understand our decision, the facts must be discussed in detail. Sue Wagnon, one of the appellees, decided to build a nursing home. For two and one-half years she did what was necessary to obtain permits required for licensing and a certificate of need, which is the allowance to have a certain number of beds — in this case, 105. Permits were granted. She found real estate, obtained an option to purchase the land and had architectural plans drawn up. Walter and Jerry Blevins, two of the appellants, doing business as Blevins and Blevins, were to be the contractors.

Mrs. Wagnon was unable to get financing so the Blevinses agreed to build the facility, finance the building, and purchase the real estate. The Blevinses spent approximately $475,000 in doing so. The Wagnons and Blevinses signed a memorandum agreement, which was not dated, but was entered into in 1976. It granted an option to the Wagnons to purchase and reads in pertinent part:

. . .[S]aid property . . . shall be subject to an Option to Purchase by Mr. and Mrs. George Wagnon which can be exercised after five years of operation of the nursing home for the appraised value of the property and facilities as mutually established by two competent and qualified appraisers, one being selected by each party. In the event that the two appraisers are unable to agree upon a single price for the facility, then the two appraisers shall agree upon a third appraiser who shall make the final determination as to the value to be assessed for purposes of this option.

According to the agreement the equipping of the facility was to be by the corporation formed by the parties. The agreement said that the members of the corporation would enter into a standard buy/sell agreement which would favor the stockholders. The buy/sell agreement was never executed; however, both parties testified that they felt bound by the buy/sell restrictions in the memorandum agreement. Each couple Walter and Ila Blevins, Jerry and Barbara Blevins, and George and Sue Wagnon, would own one-third of the stock. The nursing home began operation March 22, 1976. Sue Wagnon was director of nurses. Shortly after that, a lease agreement was entered into between the Blevinses and Autumn Hills Nursing Center, Inc. This lease agreement was executed on May 12, 1976, its term began on March 22, continuing for 15 years. The rent was $7,350 per month. The lease also provided tht “[I]n the event of a change in ownership of the corporate stock in the lease corporation affecting more than 10% of the outstanding and issued shares, Lessor shall have the option to terminate this lease, or re-negotiate any of its terms.”

Walter Blevins signed the agreement as the lessee, Autumn Hills Nursing Center, Inc., and signed again along with Jerry Blevins, as the lessor. Sue Wagnon refused to sign it because it did not recognize her option. She resigned her position as head of nurses on May 28, 1976. That same month she asserted her option which the Blevinses refused to recognize existed anymore. They contended that she abandoned the option by resigning, along with other acts. Sue Wagnon sued and that brought the first appeal. On remand, the parties were to determine the price by appraisal, the Blevinses to select one appraiser and the Wagnons to select an appraiser. If the parties could not agree, a third appraiser was to be selected.

The Wagnons got an appraisal for $688,750-$717,700, which included the land and facility, but not the value of an ongoing nursing home business. Their appraisal also considered that the property was encumbered by a lease. The Blevinses’ appraisal did not consider the lease and was for $898,000. The parties sought a third appraisal. The first two appraisers agreed that James Scott would conduct the third appraisal. Scott contacted both appraisers and both legal counsel for the parties. Counsel for both parties signed a letter which set out the instructions for the third appraisal. The letter provided that the appraisal would be on the property and facilities and take into consideration the lease held by the corporation. Counsel for the Blevinses added in writing, “[plus] additional rent as per the lease.’’ Scott’s appraisal was for $700,000.

Meanwhile, as the time neared for the exercise of the option, Sue Wagnon contacted Beverly Enterprises who operated another nursing home in Warren where she had been working. She first talked to them about backing her financially in November, 1980. Beverly agreed to guarantee her a loan of $335,000 and Mrs. Wagnon had a bank agree to assume the first mortgage on the property.

In the agreement with Beverly, Mrs. Wagnon contracted to do what she could to break the lease that encumbered the property. Beverly agreed to pay the Wagnons $1,207,000. The Wagnons gave the Blevinses notice that they intended to tender $700,000 and to eventually try to terminate the lease. The Blevinses refused the tender and this suit resulted.

The central issue below was whether the property should have been appraised with the lease. As recited above, both attorneys agreed to the instructions. The Blevinses insisted, however, that their lawyer never agreed that the letter would be the final instruction; rather, their attorney felt that it would only be one of two ways to appraise the property, as indicated in previous conversations. The attorney so testified. The chancellor resolved this factual dispute and found that the third appraisal, as made, was what the parties agreed on and that it was binding. Whether the property should have been appraised with the lease depends upon the intent of the parties and the documents. The chancellor resolved the conflict in the Wagnons’ favor, and we find no reversible error.

The corporation filed an appeal arguing that Sue Wagnon was guilty of a breach of her fiduciary relationship with the corporation in negotiating with Beverly Enterprises and trying to terminate the lease. She and her husband own one-third of the shares in the corporation and Mr. Wagnon is a director. The Blevinses drafted the lease agreement that allows the lessor to break the lease upon a transfer of ten percent or more of the stock. The Blevinses drafted the agreement knowing that the Wagnons could one day be the lessors who would benefit from the provision. Obviously, the chancellor found that what was fair for the Blevinses would be fair for the Wagnons. We cannot disagree with that finding under these facts.

With regard to the Wagnons’ cross-appeal, the chancellor found no facts justifying money damages for delayed performance. We find no error.

Affirmed.

        Wagnon v. Blevins, No. 77-233, March 6, 1978.


text:
    Charles PORTER v. STATE of Arkansas
    CR 83-115
    663 S.W.2d 723
    Supreme Court of Arkansas
    Opinion delivered January 30, 1984

      Don E. Glover, for appellant.

      Steve Clark, Atty. Gen., by; Alice Ann Burns, Deputy Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Charles Porter was convicted of aggravated robbery and theft for which he was sentenced to 60 and 20 years imprisonment respectively, to be served consecutively. He makes five arguments on appeal, none of which has merit.

According to the victim, Herbert Edgell, age 67, on Sunday morning, October 17, 1982, he was driving in Pine Bluff, Arkansas, and stopped to ask Eddie Lee Gold where he could get some beer. Gold told him at the Soul Bowl, where Gold was headed. After getting something to drink at the Soul Bowl they left and went to another bar. Charles Porter came in and asked Edgell to take him some place for three dollars. Edgell said Gold told him that Porter was “okay,” so he agreed. Edgell said both Gold and Porter went with him. En route, Porter grabbed Edgell, held a knife on him and robbed him. Gold, who was imprisoned on a guilty plea for his part in the robbery, denied under oath he was with Edgell and Porter. That Sunday evening a police detective, Bobby Brown, received a call from a person he regarded as a reliable confidential informant who had supplied information leading to arrests and convictions in the past. The informant said that Gold and Porter had robbed an old man that day. Brown knew them both. In checking the reports, he found the report on Edgell’s robbery. The next day he took seven photographs to Edgell, who quickly and positively identified Porter. He was not certain of Gold. The detective told another officer to arrest the pair. The officer arrested Porter and Gold turned himself in. A lineup was held and Edgell immediately identified both Porter and Gold.

Those are the facts most favorable to the appellee, and they readily provide substantial evidence to support the conviction. Probable cause existed for the arrest so it was not illegal. In Sanders v. State, 259 Ark. 329, 532 S.W.2d 751 (1976), we said:

It is to be remembered that probable cause is only a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the accused committed a felony, but not tantamount to the quantum of proof required to support a conviction. . . .
# # #
Determination of probable cause is based upon the factual and practical considerations of every day life upon which reasonable and prudent men, not legal technicians, act.

The appellant argues that the lineup was impermissibly suggestive and should be suppressed because of the illegal arrest. Officer Brown testified that no suggestion was made to Edgell. The trial court heard that testimony, and there is no basis to hold its decision wrong.

Porter was charged as an habitual criminal with three prior convictions. Porter argues one of those is invalid. It was a felony conviction for possession of marijuana, which resulted from Porter having two prior misdemeanor convictions for the same offense. The undisputed record showed that Porter was represented by an attorney, Berlin Jones, at that felony conviction. However, appellant’s counsel, in the case before us, said he was not certain whether Porter had counsel or whether he waived counsel at the hearings on the misdemeanor convictions. There is nothing more than this bald assertion in the record.

In Baldasar v. Illinois, 446 U.S. 222 (1980), a sharply divided Court held that uncounseled misdemeanor convictions could not be used to convert a subsequent misdemeanor conviction for the same offense into a felony conviction with a prison term. But in Baldasar it was undisputed that the accused did not have counsel or knowingly waived counsel in his prior convictions. We do not know that in this case. On the record there is a valid conviction for a felony which showed Porter did have counsel. We would have to go behind this record, assume Porter was not represented before and assume counsel did not properly perform his duty at the time the felony conviction was entered. This is not the same as a case where a felony record is silent or shows a defendant does not have counsel. See, Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976); Reeves v. Mabry, 615 F.2d 489 (8th Cir. 1980); McCroskey v. State, 272 Ark. 356, 614 S.W.2d 660 (1981). We do not give assertions or beliefs the weight we give concrete evidence. See United States v. Plisek, 657 F.2d 920 (7th Cir. 1981).

It is argued that the appellant was denied the right to cross-examine Gold about a “deal” he made with the state. First of all, if the state made an agreement with Gold, it did not make a good one, because Gold testified for Porter. It was during re-direct examination that Porter’s counsel brought up this matter. The record reads:

Q. You didn’t go to trial on your charges, did you?
A. No.
Q. They worked out a good deal for you. Is that right?
Mr. Brown: Objection, your Honor. First place, that’s not correct, and second place, that’s impermissible.
The Court: I’ll sustain the objection.
Mr. Glover: I have no further ques tions, your Honor.
Mr. Brown: Your Honor, at this point I’d like the record to reflect that Mr. Gold pled guilty to this crime to offset any innuendos that Mr. Glover might make about this. He pled guilty.
The Court: I believe he has already testified to that fact that he did plead guilty to it.
Mr. Brown: Yes, sir.
The Court: Any other questions?
Mr. Glover: Nothing further, your Honor.
The Court: You may step down.

No proffer was made of what the questions would be if allowed. We think the trial court was correct in sustaining the objection.

Finally, it is suggested that the sentence was unconstitutional because it was excessive. We have ruled mány times if the sentence is within the bounds set by the legislature, it is legal. Lear v. State, 278 Ark. 70, 643 S.W.2d 550 (1982). Porter was indeed an habitual criminal, and we cannot say the trial court abused its discretion in setting the terms to be consecutive.

Affirmed.


author: Robert H. Dudley, Justice. Richard B. Adkisson, Chief Justice,

text:
    Roy Edward HALL v. STATE of Arkansas
    CR 83-54
    663 S.W.2d 926
    Supreme Court of Arkansas
    Opinion delivered January 30, 1984
    [Rehearing denied March 5, 1984.]

      William H. Craig, for appellant.

      Steve Clark, Atty. Gen., by: Randel Miller, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

On December 16, 1980, a man wielding a sawed-off shotgun robbed the Oak Forest Drugstore in Little Rock. One week later appellant was returned to the Cummins penitentiary unit for violating the parole provisions of an earlier and unrelated sentence. Then, on January 28, 1981, he was charged with the armed robbery of the drugstore. Although he remained at the Cummins prison unit, he was not arrested on the armed robbery charge until the day he was to be released, December 23, 1981. On that date he was placed in the Pulaski County Jail. On March 23, 1982, almost fourteen months after the charge was filed and still without having been tried or released on bond, the appellant pleaded guilty to the drugstore robbery. After again being returned to the penitentiary he filed a petition for post-conviction relief asking that his sentence be vacated because of ineffective assistance of counsel (not present counsel). The trial court refused to grant an evidentiary hearing. Hall v. State, 279 Ark. 265, 650 S.W.2d 587 (1983). On remand the trial court denied relief but gave no reason. Again, we reverse but, this time, dismiss. Jurisdiciton is in this Court within the purview of Rule 29 (l)(c) and (j).

The time for a timely trial commenced running on January 28, 1981, the day the charge was filed. Rule 28.2, Arkansas Rules of Criminal Procedure, Art. VIII, Speedy Trial, Vol. 4A (Repl. 1977 and Supp. 1983). On that day appellant was incarcerated in prison in this state pursuant to conviction on a prior offense. A.R.Cr.P. Rule 28.1 (b) provides:

Any defendant charged with an offense in circuit court and incarcerated in prison in this state pursuant to conviction of another offense shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

No period of authorized delay was proven. After more than twelve months had lapsed from the date of the charge, or after January 29, 1982, the charge against appellant would have been discharged, and prosecution absolutely barred, if counsel had moved for dismissal. A.R.Cr.P. Rule 28.1 (b) and 30.1 (a); Floyd v. State, 280 Ark. 226, 656 S.W.2d 701 (1983). Appellant waived his right to a speedy trial when he later pleaded guilty. A.R.Cr.P. Rule 30.2.

However, a waiver of the right to a speedy trial does not operate, as a matter of law, as a waiver of the right to effective assistance of counsel. The constitutional right to effective assistance of counsel at the time of entering a plea of guilt is not vitiated by A.R.Cr.P. Rule 30.2. In Clark v. State, 274 Ark. 81, 621 S.W.2d 857 (1981) we stated:

If, in the original trial, the defendant knowingly and intelligently waived his speedy trial rights he cannot raise that argument in a post-conviction proceeding. Questions which might have been raised at the original trial are not permissible issues at a Rule 37 proceeding . . . However, if the defendant did not knowingly and understandingly waive his speedy trial rights he is entitled to seek post-conviction relief on the basis of ineffective assistance of counsel.

In the case before us the relevant circumstances are that appellant was entitled to have the prosecution barred; counsel at the time of the plea offered no testimony of trial strategy or other reason for the failure to assert the right to a speedy trial; and the appellant did not knowingly and intelligently waive his right to a speedy trial. The evidence is clear and convincing that appellant did not receive effective assistance of counsel and, as a result, suffered prejudice. The ruling of the trial court is clearly erroneous. See, Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981).

Reversed and dismissed.

Adkisson, C.J., and Hickman and Hays, JJ., dissent.

Richard B. Adkisson, Chief Justice,

dissenting. When appellant entered a plea of guilty, he waived the requirements of the speedy trial rule. A.R.Cr.P. Rule 30.2. He is not entitled to return now under a claim of ineffective assistance of counsel and vitiate his guilty plea unless he was denied a fair adjudication of guilt by pleading guilty. A defendant who waives his remedies and admits his guilt assumes the risk of ordinary error in either his or his attorney’s assessment of the law and facts. Mitchell v. State, 271 Ark. 512, 609 S.W.2d 333 (1980), citing McMann v. Richardson, 397 U.S. 759 (1970). At most, petitioner’s counsel made a procedural error, one of many such errors which are waived by pleading guilty. A guilty plea breaks the chain of events in a criminal process. A petitioner may not come back after pleading guilty and vacate his plea because counsel in retrospect may not have correctly appraised the significance of some fact. Tollett v. Henderson, 411 U.S. 258 (1973). Just as an attorney’s failure to challenge an illegal arrest is not ineffective assistance of counsel because the legality of an arrest does not affect the validity of the judgment, Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974), an attorney’s failure to raise a speedy trial claim is not ineffective assistance of counsel because the procedural rules setting the time for trial do not impinge on the integrity of the guilty plea. Petitioner Hall has not said that he was not guilty or in any way shown that he was denied a fair determination of his guilt. The judgment in his case is sound and his petition for postconviction relief should be denied. The failure to file a timely speedy trial motion is not ineffective assistance of counsel and our opinion in Clark v. State, 274 Ark. 81, 621 S.W.2d 5 (1981), which holds it is, should be overturned. A procedural rule must not take precedence over an uncontested adjudication of guilt. I am authorized to state that Justices Hickman and Hays join in this dissent.


author: John D. Eldridge, III, Special Justice. Darrell Hickman, Justice,

text:
    Frank LYON, Jr. et al v. WHITE RIVER-GRAND PRAIRIE IRRIGATION DISTRICT et al
    83-8
    664 S.W.2d 441
    Supreme Court of Arkansas
    Opinion delivered January 30, 1984
    [Rehearing denied March 12, 1984.]

      Smith, Jernigan ¿r Smith, by: Robert D. Smith, III and H. Vann Smith, for appellants.

      Macom, Moorhead, Green ér Henry, by: William Moorhead, for appellees.
   John D. Eldridge, III, Special Justice.

Pursuant to Act 114 of 1957, codified at Ark. Stat. Ann. § 21-1401, et seq. appellees filed a petition to establish a public, non-profit water distribution district to be entitled the “White River-Grand Prairie Irrigation District.” Appellants own real property encompassed by the boundaries of the proposed district. The Arkansas County Circuit Court established the irrigation district on March 17,1982, finding that the White River at or near DeValls Bluff was to be the district’s water source and that, because this district will serve a purpose different from the already existing Grand Prairie Regional Water Distribution District, it did not matter that the boundaries of the two districts overlap. In so ruling, the trial court rejected appellants’ arguments that Act 329 of 1949, as amended, was the proper enabling act; that the powers clause of Act 114 of 1957, as amended, did not permit the White River to be a water source for the district; that the petition for the district was amended by a report of the Arkansas Soil and Water Conservation Commission; and that the formation of the district was not in the best interest of the public. From the rulings adverse to appellants, and because the interpretation of an act of the General Assembly is required, this appeal was brought to us.

In attacking the establishment of this district, appellants raise four issues. It is first contended that the trial court erred in holding Act 114 to be the proper vehicle under which to establish the irrigation district. Their argument basically is that the purposes clause of Act 114 does not include irrigation and instead provides that the district may be organized to acquire water for purification, treatment, and processing, which are only required when water is used for human consumption. Appellants cite Hink v. Board of Directors of Beaver Water District, 235 Ark. 107, 357 S.W.2d 271 (1962) for the proposition that Act 114 was adopted to allow the use of water in federally owned lakes only for municipal and industrial use. We did note in Hink that it has been the policy of the federal government to permit some part of the water impounded in federally owned lakes and reservoirs to be reserved for municipal and industrial use, and Act 114 was adopted by our legislature to take advantage of this federal policy. However, an explanation and delineation of the purposes of Act 114 was not at issue in Hink, and we did not decide whether municipal and industrial uses are the exclusive purposes of the act, or whether agricultural or other purposes are also authorized. We think they are.

In reaching this conclusion, we note the following statement contained in the preamble to Act 114 of 1957:

Whereas, the Congress of the United States has announced a policy in adopting and authorizing such projects that no federal funds can be expended to provide water storage capacity for industrial, municipal and agricultural water supply purposes in said reservoirs until some authorized local agency shall execute to the United States a contract of assurance that such local interest will, (a) make use of said water supply and (b) pay such additional costs of said reservoir as may be allocated to water supply. (Emphasis supplied.)

We have held that the title of an act, and its preamble, may be utilized to assist in its construction. Oliver v. Southern Trust Company, 138 Ark. 381, 212 S.W. 77 (1919). In Prewitt v. Warfield, County Judge, 203 Ark. 137, 156 S.W.2d 238 (1948), we said:

In construing statutes, it is said that the preamble usually contains the motives and inducements to the making of the act, and resort to the preamble may, therefore, be useful in ascertaining the causes which lead to the passage of the act or the mischiefs intended to be remedied thereby.,

This interpretation is further suggested by the enactment of Act 137 of 1973, by which the legislature amended section 4 of Act 114 of 1957, codified at Ark. Stat. Ann. § 21-1404 (Supp. 1983), to provide as follows:

When there is water available for industrial, municipal or agricultural irrigation water supply purposes . . . then one hundred (100) or more qualified voters . . . may petition the Circuit Court... to establish a water district for the purposes hereinbefore set out.

The Arkansas Soil and Water Conservation Commission, in its Report which was required by Act 114, and also in its Amended Report, found that the purpose of the proposed district is to provide irrigation for agricultural lands within the district which “is in accord with the purposes of (the) enabling act.” We think Act 114 of 1957, as amended, clearly anticipates agricultural irrigation purposes and agree with the findings of the Commission and the trial court.

Appellants next assert that the trial court erred in finding that the White River at DeValls Bluff was a proper water source for the proposed district. Before the 1973 amendment, Act 114 could only be used to take water from federal impoundments. Act 137 of 1973 amended the “purposes” section of Act 114, Ark. Stat. Ann. § 21-1403 (Supp. 1983), to provide that districts may be organized under the act to acquire water, in addition, from “. . . wells, lakes, rivers, tributaries, or streams of or bordering this State ...” Similar conforming changes were made in various other sections of Act 114 by the 1973 amendment to enlarge the source of water beyond federal impoundments. However, the “powers” section of the original act, Ark. Stat. Ann. § 21-1408 (Supp. 1983), was not amended specifically to give districts the authority to acquire title to water from rivers. Appellants argue that to infer such power is contrary to legislative intent and is improper. The lower court held that the plain legislative design was to permit taking water from rivers and sources other than federal impoundments and that to keep Act 137 from being meaningless the court must supply the obvious, necessary words. We agree with the trial court.

We believe this was an incomplete effort on the part of the legislature and opens the statute to construction by this Court. We note that all pertinent portions of Act 114, with the exception of the “powers” section, were amended in 1973 to broaden the authority of districts to take water from rivers. Further, the title to Act 137 provides “An Act To Provide That Regional Water Distribution Districts May Be Organized To Acquire Water From Wells, Lakes, Streams, Rivers, Tributaries, and Existing Reservoirs . . .” As stated previously, it is a proper rule of statutory construction to look to the title, as well as the preamble, in determining the meaning of the act. Oliver v. Southern Trust Company, supra.

In Hazelrigg v. Board of Penitentiary Comm’rs, 184 Ark. 154, 40 S.W.2d 998 (1931), we said:

It is the duty of the courts to construe legislation as passed for the purpose of ascertaining the legislative intent, and to give effect thereto when the legislation is not inhibited by some constitutional restriction . . . legislative enactments are not any more than any other writings to be defeated on account of mistakes, errors, or omissions, provided the intention of the legislature can be collected from the whole statute.

Furthermore, in Snowden v. Thompson, 106 Ark. 517, 153 S.W. 823 (1913), we held:

There are undoubtedly inaccuracies and omissions which call for a construction of the statute, and it becomes our duty to determine whether the legislative intent can be gathered from the language used. . . [I]t is fairly within the limits of the rules for construction that courts can supply obvious omissions, in order to carry out the legislative intent.

We also said the following in McDaniel v. Ashworth, 137 Ark. 280, 209 S.W. 646 (1919):

When there is no way of reconciling conflicting clauses of a statute, and nothing indicating which the legislature regarded as of paramount importance, force should be given to those clauses which would make the statute in harmony with the other legislation on the same subject.

Finally, section 14 of Act 114 provides “This Act shall be construed liberally. The enumerating of any object, purpose, power, manner, method, or thing shall not be deemed to exclude like or similar objects, purposes, powers, manners, methods, or things.” Accordingly, we hold that the White River is a proper water source pursuant to Act 114 of 1957, as amended.

Appellants’ third and fourth points will be addressed simultaneously in that each deals with the effect to be given to the Report of the Arkansas Soil and Water Conservation Commission, filed in the lower court August 28, 1981, and the Amendment to Separate Answer of Arkansas Soil and Water Conservation Commission executed by the Commission’s attorney and filed March 17, 1982. Appellants argue that the Report and Amendment to Separate Answer mandated the exclusion of a large portion of the proposed district which overlapped with an existing water distribution district, and further required a feasibility study to be conducted to determine if the establishment of the proposed district is in the best interest of the residents.

The applicable statute on this issue, Ark. Stat. Ann. § 21-1405 (Supp. 1983), provides, in pertinent part, as follows:

Upon the filing of said petition . . . the Commission shall institute an investigation of the proposed district, its territory and purposes, and shall . . . transmit a written report of its findings on the petition to the Clerk of said Circuit Court. The report of the Commission shall include, but not be limited to:. . .(4) Any conditions, revisions (including revisions of area) or limitations which the Commission deems necessary to thé organization of the water district, the same to be stated as changes in the petition, which changes shall thereupon become a part of the petition and be deemed effective without another amendment thereto.

The quoted section expressly and unequivocally provides that the report of the Arkansas Soil and Water Conservation Commission must be accepted as a part of the petition, and the Circuit Court has no discretion in the matter. Accordingly, had the Commission mandated in its report that the land overlapped by the existing water distribution district should be removed from the proposed district, and had the Commission in its report required the feasibility study to be conducted prior to the establishment of the district, these conditions and revisions would have become a part of the petition without further amendment. The problem is that the Report of the Commission did not require the feasibility study or the removal of the overlapping area. The Report filed August 28, 1981 cast these matters in terms of recommendations to the trial court. The Amendment to Separate Answer, filed March 17, 1982, did mandate these and other changes in the petition, but this document was executed by the attorney for the Commission, not the Commission Chairman and Executive Director. The issue then becomes the effect, if any, to be given to the Amendment to Separate Answer executed by counsel. It appears to be a matter of first impression in Arkansas.

Initially, we note that the quoted section of Ark. Stat. Ann. § 21-1405 requires that the Commission institute an investigation and transmit a written report of its findings, which establishes prima facie that the Commission and only the Commission is authorized to prepare the report. In the case of Alto-Rese Park Cemetery Association v. Pennsyl vania Human Relations Commission, 298 A.2d 619 (Pa. Commw. 1972), the Pennsylvania court found that an attorney had no power to usurp the duties of the Human Relations Commission by amending its original order. The court held that the Comission derives its powers from a statute (as does the Commission in the instant case) and said the following:

[W]e recognize that the policy of the law is to favor the compromise of a disputed claim but it is axiomatic that the plain dictates of a duly enacted statute cannot be ignored. This is so not withstanding the industry, understanding, and good intention of the knowledgeable counsel for the Commission.

The court then set out the applicable statute prescribing the procedure to be followed by the Commission in performing official business, and said:

Thus a legislatively prescribed procedure must be followed before any binding, official action of the Commission is effected. Counsel for the Commission may enter into negotiations toward a compromise, but he must first submit the proposed compromise to the Commission so that it can discharge its prescribed duty. He cannot unilaterally bind the Commission. Were we to countenance such a procedure, it would simply mean that orders of the Commission may issue which have not been the subject of legislatively ordained deliberation and judgment by it. We hold that the legislature never intended such a substitution . . . This court has held that before any agreement entered into by counsel is deemed to be binding, it must be clearly shown that the attorney had the authority to enter into such agreement . . . These sections merely provide for legal aid to the Commission and representation in litigation. It does not authorize attorneys to substitute their judgment for that of their clients. Independent agencies rely on counsel but they are ordained to exercise independent judgments, else they serve no purpose in being.

This situation is analogous to the authority of an attorney to compromise a claim on behalf of his client. In Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981), the Court of Appeals discussed the implied authority of an attorney and stated:

It is well settled that an attorney’s contract of employment implies that he is authorized to take those procedural steps deemed by him to be necessary and proper in the conduct of the litigation whether in pursuit or defense of the claim. His actions in those matters, in the absence of fraud, are regarded as the acts of his client who is bound by those actions, but the mere fact that counsel is retained does not, in and of itself, carry an implication of authority to compromise his client’s claim and to hold otherwise would vest the attorney with far more power than his retainer requires or implies.

Certainly the actions of the attorney for the Commission in this case in interpreting and revising the report of the Commission, and possibly altering its legal effect pursuant to the statute, are of a substantive nature. It is clear to us that the Amendment to Separate Answer filed by the attorney should not be considered the report of the Commission. To that effect was his own testimony . . . “It’s an amended answer with the report and a strip map attached — as attachments only. It’s no third report. The report issued by the Commission still stands and always has stood.. . . There is only one report that was issued.

The Amendment to Separate Answer does, however, cast doubt upon the effect intended by the Report of the Commission relating to conditions, revisions, or limitations in the petition for establishment of the district. Accordingly, this cause is remanded to the Circuit Court to receive the findings of the Arkansas Soil and Water Conservation Commission, particularly with reference to any conditions, revisions or limitations it deems necessary to the formation of the district; to incorporate these in the petition for establishment of the district as required by the enabling statute; and to proceed in accordance with such findings. Neither party questioned the validity of Ark. Stat. Ann. § 21 -1405 et seq. which permits the Arkansas Soil and Water Conservation Commission the right to decide to change a petition without review. The parties are not precluded from questioning the validity of this law on remand.

Affirmed in part, reversed in part, and remanded for actions consistent with this opinion.

Special Justice Leroy Autrey joins in this opinion.

Adkisson, C.J., and George Rose Smith and Hays, JJ., not participating.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. This case vividly points out the lack of comprehensive, well thought out legislation concerning water rights in Arkansas — rights which affect us all, not just cities and farmers that irrigate. A piece-meal approach, which is what presently exists, permitting overlapping districts, failing to deal squarely with competing interests for water, can only add to the problem, not solve it. Water is one of Arkansas’s greatest natural resources, and we should not allow it to be wasted or destroyed because of a lack of foresight or the will to keep what we have.


text:
    ARKANSAS STATE DEPARTMENT OF HEALTH, et al v. DRS. THIBAULT & COUNCIL, P.A., et al
    83-235
    664 S.W.2d 445
    Supreme Court of Arkansas
    Opinion delivered February 6, 1984
    [Rehearing denied March 12, 1984.]

      Wright, Lindsey ¿r Jennings, for appellant, Arkansas Association of Nurse Anesthetists, Inc.

      Steve Clark, Atty. Gen., by: George A. Harper, Spec. Asst. Atty. Gen., for appellants, Arkansas State Board of Health; Arkansas Department of Health; Ben N. Saltzman, M.D.; Arkansas State Board of Nursing; and June Garner.

      Alsobrook ir Moudy, by: Dan E. Moudy, for appellee, Board of Governors of Saline Memorial Hospital.

      Gibson, Ellis ér Arnold, for appellees, Drs. Thibault and Council, P.A.

      Adkisson, C.J., would grant rehearing.

   George Rose Smith, Justice.

In this declaratory judgment action brought by the two appellees — a professional association of three obstetricians and a county hospital — the question is whether the doctors and the hospital can lawfully continue to allow registered nurses, not specially qualified in the field of anesthesiology, to administer “epidural anesthetics” to obstetrical patients at the hospital. The appellants are the State Department of Health and other interested state agencies. After an extended hearing the trial judge entered a declaratory judgment allowing the challenged practice to continue. Our jurisdiction is under Rule 29 (1) (c).

Epidural anesthetics are used to deaden the pain otherwise experienced by maternity patients during the hours of labor preceding the birth of the child. At this county hospital the initial injection into the epidural area next to the patient’s spine is invariably made by the obstetrical physician, who remains a few minutes to be sure that the injection was in precisely the right place and has taken effect. After that, the doctor instructs an attending nurse to reinj ect the anesthetic as needed, in specified amounts and at specified intervals such as every 40 minutes. The doctor then goes to his office or home, but he is available within a few minutes if any complication occurs.

The Nurse Practice Act contemplates that special training is needed for a registered nurse to administer anesthetics. In fact, one of the appellants is the Arkansas Association of Nurse Anesthetists. The following language in the statute is so specific that we hold it to be controlling:

Any nurse registered under the provisions of this Act who holds a diploma or certificate evidencing his or her successful completion of the educational program of a school of anesthesia duly accredited . . . and holds a current certificate of certification . . . may give or administer anesthetics in this State in the presence of a licensed physician or dentist.

Ark. Stat. Ann. § 72-746 (Repl. 1979).

The appellees’ testimony in defense of their practice was that although there is a possibility that serious complications requiring a physician’s presence may arise, it is nevertheless safe for reinjections to be made by registered nurses having no special training, with a physician always being only a few minutes away from the hospital. Their testimony was that for an obstetrician to be with the patient all during the anesthesia would be impractical, and for the hospital to maintain enough qualified nurses to make the reinjections would be prohibitively expensive. An expert in the field — a medical school professor who had been called in to evaluate the hospital’s procedure — wrote, in a letter approving the procedure, that the three obstetricians in question, all of whom he had taught, were energetic and competent, and further: “I would not make this recommendation for every hospital employing nurses to reinject epidural catheters, but at this hospital, a personal inspection has convinced me that this practice is safe in their hands.” The statute, however, is specific in providing that a nurse who administers anesthetics must be qualified and may do so only in the presence of a physician. Both provisions are being disregarded at the Saline Memorial Hospital.

The trial judge rested his conclusion on two findings, neither of which can be sustained. First, he held that the words “anesthesia” and “medicine” are ambiguous, with the implication that the nurses at the hospital are merely administering medicine. Anesthesia, however, is the deadening of pain, the very purpose of the challenged procedure, but medicine is given to cure disease, a purpose foreign to that procedure. Indeed, the medical witnesses referred to the injections as epidural anesthetics. Second, the trial judge noted that the Nurse Practice Act contains penalties for various violations of its provisions. He concluded that the statute should be strictly construed, so that its language specifying that a qualified nurse “may” administer anesthetics is merely permissive. The trial judge therefore decided that any registered nurse may also act as an anesthetist. If so, then that service may also be performed by a hospital orderly, or even by a lay bystander. We can find no reasonable basis for upholding the trial court’s interpretation of the statute.

Reversed.


text:
    Eugene RILEY v. RED RIVER MARINE, INC., et al
    83-238
    664 S.W.2d 200
    Supreme Court of Arkansas
    Opinion delivered February 6, 1984

      Richard L. Walloch, for appellant.

      Hoyt Thomas; and Mitchell, Williams, Selig, Jackson ér Tucker, by: Debra K. Brown and Byron Freeland, for appellee.
   George Rose Smith, Justice.

This is a usury case in. which the chancellor refused to cancel the contract for usury. We disagree with his decision.

On June 25,1981, the plaintiff, Eugene Riley, agreed to purchase a boat from the defendant, Red River Marine, for $2,750. Riley was given a bill of sale listing $2,750 as the price, $82.50 as the sales tax (3%), and $275 as a deposit. There was also a notation referring to the transaction as a “90 days layaway.”

Riley testified that on September 25 he returned to Red River’s place of business in Heber Springs to complete the purchase. He was then told that the price had been increased by $200, making it $2,950. He protested the change, but after some discussion he acceded to it and signed a newly written contract listing the figures as follows:

Selling price 2,950.00

Sales tax 82.50

Cash price 3,032.50

Cash down payment 832.50

Amount financed 2,200.00

Finance charge 355.28

Annual percentage rate 10%

Total of payments 2,555.28

The contract required Riley to pay the above total in 36 monthly installments of $70.98 each, which is to the penny the proper payment at 10% interest if the principal debt was $2,200. Lake’s Monthly Installment and Interest Tables, p. 431 (6th ed. 1970). If, however, the actual debt was only $2,000, the transaction would be usurious and void.

Riley testified that when he got home he felt he had been “taken” for $200. After talking to an employee of Borg-Warner Acceptance Corporation, the finance company that bought the contract, Riley employed a lawyer. Word of Riley’s dissatisfaction reached Red River’s president, Bernard Hargrove, who on November 3 sent Riley a check for $200 explaining that in posting the account “we found a difference in your sales ticket and the Borg-Warner Acceptance Corp. contract in the amount of $200.00. Please accept our apology for this error.” Riley refused to cash the check and brought this suit to cancel the contract.

We think the clear preponderance of the testimony, when considered with the documentary evidence, supports the conclusion that Red River did wrongfully inflate the agreed price by $200 and did charge the maximum interest rate of 10% upon the fictitious price. When a lender fails to identify charges that are being added to the cash price, the trier of the facts is justified in assuming, until convinced otherwise, that the difference is interest. Jones v. Jones, 227 Ark. 836, 301 S.W.2d 737 (1957).

Riley had written proof that the original agreed price was $2,750. Hargrove admitted on the witness stand that Riley had been overcharged, but neither he nor any other Red River employee was able to give a plausible explanation for the change. Riley testified that the change was deliberately made. Andrew Cobb, the Borg-Warner manager who handled the financing, testified that at the outset he received a credit report, dated June 26, and approved Riley’s credit for a selling price of $2,832.50, less a down payment of $632.50. Those figures confirm Riley’s testimony, who said he had to increase his down payment to $832.50 when Hargrove raised the price. It is also significant that Red River, despite having added $200 to the selling price, retained the original sales tax figure of $82.50, indicating a selling price of only $2,750.

The chancellor found that no clerical error had been made and that the parties had agreed (as they ostensibly did) upon the new price of $2,950. But the chancellor then went on to hold that “equity would be served” by directing that Red River refund $200 to Riley and rewrite the contract to reflect the lower price. The chancellor’s opinion was incorporated in the decree. It is not possible, however, for a creditor to purge a contract of usury by remitting the excessive charge, Ford Motor Credit Co. v. Catalani, 238 Ark. 561, 383 S.W.2d 99, 11 A.L.R. 3d 1494(1964), nor should the courts attempt to do so. The only case relied upon by the trial court is not actually comparable: Universal C.I.T. Credit Corp. v. Hugens, opinion on rehearing, 234 Ark. 1127, 356 S. W.2d 658 (1962). There the seller induced the buyer to sign a blank contract and then filled in an excessive price. There was no admission of fault or attempt to refund the excess, as here. We merely held that the buyer’s remedy was to rescind the agreement for fraud rather than to seek cancellation for usury, because the seller had not actually charged excessive interest.

The decree is reversed and the cause remanded for the entry of a decree canceling the contract.

Hays, J., not participating.