text:
    Marlous I. KARLICH v. Huey COPELIN et ux
    78-310
    280 S.W. 2d 943
    Opinion delivered May 21, 1979
    (In Banc)

      Bob Keeler and Tompkins, McKenzie, McRae & Vasser, on the brief, for appellant.

      Ben Core, of Daily, West, Core, Coffman & Canfield, for appellees.
   Frank Holt, Justice.

This is an action involving an “Agreement for Trade in Equities in Real Estate,” and an escrow contract by which the appellant and the appellees swapped properties. The court dismissed appellant’s complaint and appellees’ counterclaim.

Appellant was the owner of a 38 acre tract of land in Polk County. She negotiated a “trade in equities” with the appellees, contracting to trade her 38 acre tract for property that appellees owned, which in part fronted on a highway just outside the Mena city limits. Appellant allegedly believed that appellees’ property contained 6 acres. Sometime after the trade agreement and escrow contracts were executed, appellant found that the property contained 3.5 acres rather than 6 acres. When appellees would not make an adjustment on the acreage deficiency, appellant brought this suit, alleging that it was of the essence that the tract contain 6 acres and that appellees knew the tract contained less and had misled her as to the acreage. She asked for reformation of the deed so that she would receive 6 acres, or, in the alternative, for damages, rescission, or other relief. Appellees denied that they had represented the tract contained 6 acres or that the acreage was of essence to the contract and counterclaimed, alleging that appellant had defaulted in her payments because she had “received” $17,000 from an escrow account in California and had failed to apply it, as she had agreed, to the indebtedness she had assumed on the acreage which she had purchased from the appellees. Appellees prayed for specific performance and payment of the entire amount due under the contract The chancellor, after hearing the evidence, dismissed appellant’s complaint, finding that appellant was not entitled to either reformation or rescission and had not sufficiently proved her damages. The chancellor also dismissed appellee’s counterclaim finding that appellant had not “received” the California escrow proceeds and, therefore, was r. t obligated to pay more than the agreed $150 per month on the local indebtedness.

Appellant first contends that the court erred in not granting an abatement of the purchase price. She argues that the sale was for an exact number of acres (6) which was of the essence to the contract and that the 40% deficiency in acreage was a “gross” mistake. Therefore, as a matter of law, she is entitled to an abatement of the $24,000 purchase price in proportion to the acreage deficiency.

Even if we should agree that appellant is entitled to an abatement, we must agree with the chancellor that her proof as to her damages is insufficient. The court found that the testimony of appellant’s appraisal witness was not a sufficient guide from which damages could be determined for the shortage in acreage. Even so, appellant argues that the chancellor did not correctly apply the law inasmuch as the purchase price of $24,000 for the 6 acres was sufficient for the chancellor to compute the damages on an acreage basis. In other words, the purchase price and acreage were a sufficient basis, without further proof, to proportionately reduce or abate the purchase price. However, it appears that appellant overlooks the fact that the property included a building. The value of that improvement had to be taken into account in arriving at appellant’s damages. In Edwards v. Johnson, 227 Ark. 345, 298 S.W. 2d 336 (1957), we said:

More is involved than a simple computation of the proportionate damage resulting from a deficiency of nine acres. The dwelling house upon this small parcel of ground unquestionably enhanced its value. There is nothing to indicate that the parties dealt in terms of a fixed price per acre without reference to the improvements. In these circumstances the purchaser’s loss is equitably determined by first deducting the value of the improvements from the purchase price and then calculating the damage attributable to the shortage of acreage.

Here there was no testimony to meet these requirements. Therefore, there was no basis for a determination by the chancellor as to the extent appellant was injured by the deficiency in acreage. Appellant urges that since this is an abatement proceeding, it should be remanded for further proceedings as to any deficiency in proof. In Edwards v. Johnson, supra, we said:

It is suggested that the cause be remanded for additional proof, but the record discloses no circumstances justifying a piecemeal trial on the issues.

We think that case is controlling here.

Appellees contend on cross-appeal that the court erred in interpreting their trade contract with respect to application of the California escrow funds. The contract reads in pertinent part:

“ [A] collection of an Escrow in the State of California which is about to mature, in the approximate amount of $17,000 will be paid and credited by her [appellant] when received upon said indebtedness against the six acre tract. . . .

The court construed the agreement to apply only if a payment of money resulted in an increased cash flow to appellant. Appellees argue that appellant “received” 112,000 from the California escrow contract since these funds were collected there and then applied to reduce her indebtedness on property in California. The persons to whom appellant sold her California property applied the escrow funds, without her consent, to first liens or mortgages on the property which appellant had sold to them. This was allowed under California law. Although they provide us with no Arkansas law on this point, appellees cite several cases from other jurisdictions purporting to stand for the proposition that, in a situation such as here, the funds are considered to be “received” by the party in appellant’s position. Those cases, however, deal with the interpretation of receipt of funds for tax purposes and are not controlling here. Words used in a contract are to be given their plain and ordinary meaning. Miller v. Dyer, 243 Ark. 981, 423 S.W. 2d 275 (1968). To “receive” is to “take possession or delivery of.” Webster’s Third New International Dictionary. Appellant here never had the California funds in her possession and did not take delivery of them. We hold that the court correctly interpreted the contract. Therefore, the court’s finding that she did not default in her contractual obligations is also correct.

Affirmed on direct appeal and cross-appeal.


source: Caselaw Access Project

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

license: Public Domain

text:
    FIRST AMERICAN NATIONAL BANK of Nashville, Tennessee v. McCLURE CONSTRUCTION CO. et al
    78-334
    551 S.W. 2d 550
    Opinion delivered May 21, 1979
    (InBanc)
    [Rehearing denied June 25, 1979.]
    Barrett, Wheatley, Smith & Deacon, by: Stephen Reasoner, and Winchester, Marshall, Huggins, Charlton, Leake & Brown, by: Stanley M. Huggins, for appellant.

      Rhine, Rhine & Young, by: Robert E. Young, for appellees.
   Darrell Hickman, Justice.

This is an appeal from a foreclosure action decided by the Greene County Chancery Court. The only issue is usury. The appellant, First American National Bank of Nashville, Tennessee, sought foreclosure on three promissory notes, and accompanying deeds of trusts on Greene County land, it had acquired by assignment. The appellee, McClure Construction Company, had assumed the obligations of the instruments. Other parties were joined in the trial proceedings but are not parties to this appeal.

McClure raised the defense of usury to the appellant’s action and the chancellor held the notes usurious. He found his decision was controlled by Cagle v. Boyle Mortgage Co., 261 Ark. 437, 549 S.W. 2d 474 (1977).

First American appeals arguing the chancellor was wrong because the charge of interest, admittedly over 10%, was due to a mistake of fact, or a clerical error, and, therefore, was not legally usurious. We agree and reverse the chancellor’s decree.

The facts are virtually undisputed. The original lender, Guaranty Mortgage Co. of Nashville, Tennessee, made three construction money loans in August, 1973, to John Watkins and his wife totalling $57,700.00. The three notes on their face showed an interest rate of 10% per annum. First American was assigned the notes in 1976, when Guaranty, their wholly-owned subsidiary, became a division of First American. No payments on principal or interest were ever made on the notes.

Guaranty and First American were primarily Tennessee companies; neither had an office or agent located in Arkansas. There was no evidence either regularly did business in Arkansas.

Gary McClure, the president and principal stockholder of the appellee, had to go to Memphis to assume the notes. He testified:

... I was required to go to Memphis to Guaranty Mortgage Office in Memphis and to cosign these notes. At that time they instructed me that this was a 10% note and they could not charge in excess of 10% in Arkansas. They informed me that they were aware of the law in Arkansas of 10% and this was the most that they could charge, if they charged a penny above that, that it would be usury.
Q. So they did speak to you on the matter of usury?
A. Yes, sir.
Q, And that they were aware of the Arkansas law on the matter?
A. Yes, they were, in fact I inquired about borrowing other monies from them and they were not interested in loaning money in Arkansas because they could not charge more than 10%.

Guaranty billed these accounts using a computer that calculated interest using a 360-day year and quarterly compounding, which is customary for Tennessee loans. It was undisputed that the effective interest rate charged by these statements was 10.531% per annum. There was evidence that neither Guaranty nor First American had a policy of computing interest the same way for any Arkansas loan.

The appellant argues the statements were the result of an honest mistake or clerical error; it was never intended to violate the strict usury provision of the Arkansas constitution, ARK. CONST. Art. 19, § 13.

The appellee relies, as the chancellor did, on our decision in Cagle v. Boyle Mortgage Co., supra, where we found usury in a similar situation.

The case of Cagle v. Boyle Mortgage Co., supra, is similar, and a cursory reading of it could lead one to conclude it controls the decision in this case. The similarities are that in both instances the notes were not usurious on their face; computerized statements using a 360-day year to compute interest were mailed and received; interest was compounded monthly in the Cagle case, quarterly in this case; the interest charge on the statements exceeded 10% per annum; payments were never made on principal or interest.

However, the similarities end with these facts. In Cagle, the Tennessee corporation had an office in Arkansas with a branch manager; the lender regularly did business in Arkansas; the lender regularly used the 360-day year for all notes, whether made in Arkansas or Tennessee; the borrower complained of the excessive charge to the Arkansas manager and he replied he had nothing to do with computing the interest, it all came out of Memphis. Most significantly, the lender had collected the illegal interest from Boyle in a companion transaction. We concluded there had been no honest mistake, and there was intent to charge, reserve or collect usurious interest.

In this case the appellant offered proof that neither Guaranty nor First American did business regularly in Arkansas; they knew they could not charge interest using the 360-day year, compounded on an Arkansas loan; and they offered undisputed proof the lender wanted to avoid violating the Arkansas usury law. McClure corroborated this proof, as we have related. There was no evidence offered to refute the appellant’s evidence; that leaves only the existence of the statements themselves as evidence of an intent to charge usurious interest. The chancellor did not make a specific finding of intent to make an unlawful charge; instead he simply found the Cagle case stands “on all fours with the case at bar. The Court is unable to distinguish any basic facts.”

There must be an intent to charge, reserve or receive unlawful interest to constitute usury. Garvin v. Linton, 62 Ark. 370, 35 S.W. 430 (1896). It is the burden of one offering the defense of usury to prove such intent. Cox v. Darragh Co., 227 Ark. 399, 299 S.W. 2d 193 (1957). The intent will not be presumed or imputed. Davidson v. Commercial Credit Equipment Corp., 255 Ark. 127, 499 S.W. 2d 68 (1973).

A lender who makes an excessive charge through a mistake or ignorance of the fact it was excessive has no intent to unlawfully charge interest. Davidson v. Commercial Credit Equip ment Corp., supra; Hinton v. Brown, 174 Ark. 1025, 298 S.W. 198 (1927).

There is a distinction, although sometimes a fine one, between a mistake of fact and one of law. A lender who makes a mistake of law is not excused as one who makes a mistake of fact. Brooks v. Burgess, 228 Ark. 150, 306 S.W. 2d 104 (1957); Ford Motor Co. v. Catalani, 238 Ark. 561, 383 S.W. 2d 99 (1964).

We found the requisite intent to make an unlawful charge in Cagle v. Boyle Mortgage Co., supra, for the reasons we have enumerated above. Most of those significant facts do not exist in this case and we conclude the preponderance of the evidence is that there was no intent to make an unlawful charge; instead, the unlawful charge was a result of a mistake of fact.

We find no merit to appellees’ argument the appellant failed to properly abstract the record according to Rule 9(d), Supreme Court Rules.

We reverse the chancellor’s decree and remand the cause for proceedings consistent with this opinion.

Reversed and remanded.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the results reached by the majority. However, I would state we are overruling Cagle v. Boyle Mortgage Co., 261 Ark. 437, 549 S.W. 2d 474 (1977), and other cases along the same line of reasoning. Like the trial judge I cannot distinguish the facts in the present case from those in Cagle.

In both cases there was a note and mortgage bearing the stated interest rate of 10%. In each case it was argued that the computer printout containing the schedule of payments was in error in charging an interest rate above 10%.

The fact that in one case it was only done once and the other it had been done on other occasions is not sufficient to distinguish the cases for me. This is very similar to the argument that one may be just a little bit pregnant. If one of these cases is usurious, so is the other. If one is not usurious, neither is the other. In my opinion we should call a spade a spade and overrule Cagle, supra. As it stands, the lawyers and the courts will just have to guess at which case we may decide to follow.


author: Darrell Hickman, Justice. John A. Fogleman, Justice,

text:
    Alan Wayne ROUW v. STATE of Arkansas
    CR 79-15
    581 S.W. 2d 313
    Opinion delivered May 21, 1979
    (In Banc)

      Buford Gardner, for appellant.

      Steve Clark, Atty. Gen., by: E. Alvin Schay, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Alan Wayne Rouw, a juvenile, was found to be a delinquent, having committed the crime of manslaughter. He was ordered committed to the Arkansas State Training School by the Circuit Court of Carroll County.

On appeal Rouw alleges six errors. We find no merit to any of these arguments except those relating to statements made by Rouw to law enforcement officers. Those statements, we find, were not voluntary as defined by the law and they should not have been admitted into evidence against Rouw. For that reason the judgment of the circuit court is reversed and the cause is remanded.

The tragic incident precipitating the charge was a shooting of Lisa Evans, age thirteen, a neighbor and schoolmate of Rouw’s. She was found dead in her living room by her mother on the afternoon of October 13, 1977. The autopsy showed a single gunshot wound to her head.

The sheriff’s office conducted an investigation of the incident and questioned Rouw about his whereabouts on that day. He had been seen near the Evans home carrying what appeared to be a rifle. He admitted that he had gone hunting that day in nearby woods but denied that he was at the Evans home or knew anything about the shooting. The gun that he had carried, a .22 caliber rifle, was shown to the officers.

The next day a deputy sheriff walked with Rouw the route he claimed to have taken when he was hunting. No shells were found where Rouw claimed he had stopped to shoot at some buzzards. A few days later, on the 18th of October, the sheriff ordered Rouw brought in.

A deputy sheriff, C. W. Elrod, picked up Rouw at his home and brought him to the sheriff’s office. Elrod later testified that Rouw had made a voluntary statement to him en route to the sheriff’s office in which he admitted shooting Lisa Evans. The next day, the 19th of October, the sheriff took a statement from Rouw at about 11:00 a.m. On October 20, an investigator for the Benton County Sheriff’s Department took a statement from Rouw. These statements were all admitted into evidence against the objection of the defendant and we agree that they should not have been admitted.

Legally, these statements were confessions and it is a rule of law that in making such a confession, one must voluntarily, knowingly and intelligently waive his right to remain silent before it can be admitted against him. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The test for determining whether such statements are voluntary is that on appeal we examine the totality of the circumstances related to the statements, Harris v. State, 244 Ark. 314, 425 S.W. 2d 293 (1968), and will affirm the trial court’s finding unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974).

In this case Rouw was a minor, age 14 years and 11 months at the time the statements were taken. While youth alone is not a circumstance that will prevent a voluntary confession or a knowing waiver of constitutional rights, it is a factor to be considered. Mosely v. State, 246 Ark. 358, 438 S.W. 2d 311 (1966). Neither parent signed a waiver of rights form or testified they were so advised. The fact that the parents have not been advised of the rights of the child prior to questioning is also a factor to be considered. The statements in question here were taken over a period of three days while Rouw was in “protective custody.” The length of the interrogation is a factor. Vaughn & Wilkins v. State, 252 Ark. 505, 479 S.W. 2d 873 (1972). The sheriff ordered Rouw in for questioning; his parents were advised that they were holding him for “protective custody.” Deception by any official alone will not invalidate an otherwise voluntary confession, but it also is a factor to be considered. Dewein v. State, 114 Ark. 472, 170 S.W. 582 (1914).

It was not disputed that none of the provisions of the Arkansas Juvenile Code, Ark. Stat. Ann. § 45-501, et seq. (Repl. 1977), were complied with. Rouw remained in the county jail for 20 days. He was not immediately taken before juvenile court; his rights were not explained to him until the day after he was taken into custody when he signed a rights form just prior to giving a statement to the sheriff; and, there was no evidence presented by the State that he was ever served with a copy of a petition or summons regarding the charge. In fact, the circuit court reversed the first hearing on this matter because he had not been served a copy of the petition. Even though we do not agree with appellant’s contention that statutory noncompliance is alone grounds for suppression of the statements, we hold that the State’s failure to comply with the provisions of the Juvenile Code is another factor to be considered in reviewing the totality of the circumstances.

The sheriff admitted that Rouw became a suspect at the time he accompanied the deputy sheriff to the woods to look for spent shells. It is not disputed that Rouw was not informed that he was a suspect. The sheriff testified he was brought in for “questioning,” yet he was not informed of his rights until October 19 immediately before a statement was taken from him. The sheriff admitted that Rouw was scared and broke down once or twice when they were talking to him.

Defense counsel questioned the sheriff about whether Rouw had refused to sign a rights form when he was brought in; his answers to those questions are as follows:

A. Sir, when he was booked in, it shows where — it shows booked in, the time was 7:15 P.M. I believe. This was probably a little bit earlier than that, that he was brought in.
Q. Alright. Was he booked before or after you had your conversation with him?
A. I don’t recall, sir. I would say we were — I probably had a conversation with him, we had a conversation all during the time from the time he came into the S.O., [sheriff’s office] so it’s hard for me to say.
Q. Did you give him one of those rights forms to fill out that evening?
A. I don’t believe so, sir.
Q. Isn’t it a fact that he was given a rights form and he refused to sign it?
A. I could not honestly answer that.
Q. You don’t recall that either?
A. I’m not positive. He possibly could have. I wouldn’t deny it. I don’t know, sir, I can’t recall.

The sheriff’s answers to questions about exactly what Rouw was informed of when he was considered a suspect are as follows:

Q. Alright. Now, when did he become a suspect?
A. I believe, in my opinion when he became a suspect was when — it was probably at the time we walked back with him on his route that he indicated to us that he had went up to the tree where he claimed he shot into a squirrel’s nest and of course, along with the other conversations we had had with neighbors down the road.
Q. At the time he became a suspect did you advise him of his rights at that time?
A. He wasn’t in custody.
Q. Did you advise him of — my question is: did you advise him of his rights?
A. No, sir.
Q. Alright. You had other conversations with him after that?
A. Yes.
Q. After he had become a suspect you had other conversations with him?
A. Yes.
Q. Did you advise him before those conversations of his rights?
A. No, sir.

Deputy Sheriff Elrod testified that after he picked up Rouw at his parents ’ home, and on the way to the sheriff’s office, Rouw told him that he had shot the girl. Elrod did not testify at either of two other hearings in this matter. The deputy sheriff said it was “voluntary.” The deputy sheriff admitted that he did not at any time ever advise Rouw of his rights. The day after the first statement taken by the sheriff, which would have been the 20th, Rouw was to have taken a polygraph test to be administered by an investigator for the Benton County Sheriff’s Department. His father signed a form to give permission but he was not advised of his son’s rights before taking the polygraph. After Rouw was in the room with the officer, according to the officer, Rouw decided to make a statement at which time he was given a rights form which he signed. Rouw’s fáther was outside the room and was not consulted. A statement was taken from Rouw, and the polygraph was never administered.

It is the burden of the state to prove that a person voluntarily and knowingly waives his constitutional rights. Miranda v. Arizona, supra.

When all of the circumstances are considered in this case, there is no doubt that the State did not satisfy its burden. His parents were told he would be taken in for protective custody. He was questioned that evening and perhaps the next day before he made a statement which was recorded. At no time that evening or the next morning before 11:00 a.m. was he advised of his rights. This is admitted. There is no written evidence that his parents were advised of his rights. None of the provisions of Arkansas law regarding treatment of juveniles were complied with.

In a similar case where a voluntary statement was made to a policeman in the presence of a third person, it was held that the confession was admissible. Little v. State, 261 Ark. 859, 554 S.W. 2d 323 (1977). However, in that case the deputy sheriff testified he advised the minor of her rights when she got into the vehicle. Furthermore, the minor was aware that she was a suspect and was charged with a killing. Neither of these circumstances exist in this case.

Here, the sheriff admitted that Rouw was questioned before he was advised of his rights, a clear violation of the spirit of Miranda. The only evidence at ali that he knew that he was waiving his rights is a form that contained his signature which was signed the next day.

His parents disputed they were ever advised that he would need a lawyer or could make bond. They said they inquired about both of the sheriff but received evasive answers. His mother testified that she had instructed the sheriff not to pick him up at school or on his way home from school, and that it was her understanding that he was being taken in solely for the purpose of protective custody. Neither of his parents ever acknowledged in writing that they knew he was a suspect or being questioned until after the statements had been taken.

We conclude that the statements taken do not meet the constitutional test as set forth in Miranda or other related decisions and, therefore, these statements cannot stand as voluntary confessions and may not be admitted against this defendant.

We find no error in the court’s commitment of Rouw to the Arkansas State Training School Department pursuant to Ark. Stat. Ann. § 45-402 (Repl. 1977).

The other errors alleged are without merit or will not likely recur on a new trial; for that reason they are not discussed.

Reversed and remanded.

George Rose Smith, Fogleman and Byrd, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I cannot accept the majority’s finding that, in spite of the trial court’s holding to the contrary, every statement made by appellant was involuntary. This overextension of the Miranda principles is quite unwarranted. In my opinion, the trial court’s findings as to some of the statements, at least, are supported by a clear preponderance of the evidence. Perhaps the matter would be in better focus if the facts were viewed chronogically.

On the day Lisa was found dead in her home, Alan Rouw was seen going toward the Evans house at a point approximately halfway between his own home and the Evans house. He was carrying a weapon that looked like a rifle. This was approximately 1-1/2 hours prior to the time she was found dead at 5:30 p.m. Later he was seen going toward his own home, still carrying a rifle. When he arrived at home about 5:00 p.m., he appeared to be upset and hurried to put his gun away. After Alan got home, the sheriff came to the Rouw house and told the Rouws that Lisa was dead. There was some conversation at that time to the effect that Alan had gone hunting, had passed through an orchard, found a dead cow, made some shots at a buzzard, passed the Smith house (which was half way between the Rouw house and the Evans house) and had then shot at a squirrel’s nest. The sheriff and some of his deputies returned the next day and asked if it would be all right for Alan to show them where he had been, without indicating that Alan might have had anything to do with Lisa’s death. Alan went along to show the places he had gone. A search was made at the place he said he had fired at a buzzard, but no empty hulls were found. No empty cases were found near a tree where Alan indicated that he had shot into a squirrel’s nest. Later that day the sheriff returned to the Rouw house and asked to see the weapon Alan had taken hunting. It was given to him by the boy’s father, Marvin Rouw. The officers also obtained some shells and fired a test shot into a car seat. A deputy sheriff had been dispatched through the area to talk to the people who lived there.

An autopsy was performed on October 14th. It disclosed that the death of the little girl was caused by a gunshot wound located behind her left ear. Bullet fragments were removed. The pathologist who performed the autopsy said that the bullet was small caliber. He said that the wound could have been consistent with a larger caliber bullet.

There was no further contact between the officers and the Rouws until October 18th, when Sheriff Jerry Colvin called the Rouw home and told Alan’s mother that he wanted to pick Alan up at school and ask him some more questions. Mrs. Rouw said that she preferred that the sheriff not ask Alan questions or pick him up at school. The sheriff then asked if it would be all right to pick Alan up before he got on the school bus. When Mrs. Rouw refused to give her permission, the sheriff asked if it would be all right to pick Alan up when he got off the bus, and Mrs. Rouw said no. She told the sheriff if he was going to pick him up, to pick him up at home. The sheriff sent his deputy, C.W. Elrod, to pick Alan up. Elrod went to the Rouw home and, after sitting down and talking with Mrs. Rouw and one of Alan’s sisters, Alan got in the car with Elrod and they started down the road en route to the sheriff’s office. Alan seemed rather quiet. After Elrod had driven a short way, Alan asked Elrod if he knew who killed Lisa. Elrod said, “I believe I do.” After Elrod had driven about 300 yards further, Alan asked, “How do you know who killed Lisa?” Elrod responded, “Well, that’s part of our job.” After Elrod had driven a little further, Alan said, “Well, I got something to tell you. I was at the house and I did shoot her.” Elrod said that he told Alan not to say any more and proceeded to the sheriff’s office where, upon arrival at approximately 5:30 p.m., he told the sheriff what Alan had said.

There was no interrogation whatever. There has never before been any exclusionary rule that renders evidence of such statements inadmissible and I cannot join in any such unwarranted extension of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR 3d 974 (1966). A statement that is spontaneous, voluntary and unsolicited, made by one who is not being interrogated at the time, is admissible. Steel v. State, 246 Ark. 75, 436 S.W. 2d 800; Crawford v. State, 254 Ark. 253, 492 S.W. 2d 900; Reynolds v. State, 254 Ark. 1007, 497 S.W. 2d 275; Upton v. State, 257 Ark. 424, 516 S.W. 2d 904; Sanders v. State, 259 Ark. 329, 532 S.W. 2d 752; Little v. State, 261 Ark. 859, 554 S.W. 2d 312. The exclusionary rule was developed as a deterrent to police coercion, but this is simply not the sort of police conduct which was intended to be inhibited by Miranda and its progeny. See Ouletta v. Sarver, 307 F.S. 1099 (E.D. Ark., 1970), aff’d. 428 F.2d 804 (8th Cir., 1970). Police officers are not required to gag an accused who wants to confess or make incriminating statements. Statements which do not result from in-custody interrogation are not barred. Johnson v. State, 252 Ark. 1113, 482 S.W. 2d 600. It is just such misapplications of the Miranda rule as that being made here that have caused such great dissatisfaction, both public and judicial, with the exclusionary rule. See, e.g., Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), Burger, C.J., dissenting; Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), Burger, C.J., dissenting.

Elrod reported Alan’s statements to Sheriff Colvin. Colvin and Elrod talked with Alan that night for a short while. No significant statement was made by him except for a repetition of what he had said to Elrod. Alan was not warned about his right to remain silent or right to counsel at that time, and he was certainly in custody. When the officers asked him if he wanted to say anything, he responded to Elrod, “No, not in front of all these people. I don’t want to tell anyone but you. You’re the only one I trust.” Elrod asked if it would be all right for the sheriff to stay and Alan said, “Sure, that would be fine.” All the other deputy sheriffs left and Alan repeated what he had told Elrod. The only thing he said that was not virtually identical to his remarks to Elrod was the staement that he had been telling a story about going squirrel hunting. Alan said that he wanted his mother to be there with him and she was called. According to Elrod, while they were awaiting Alan’s mother’s arrival, Alan stated, without being questioned by anyone, that he shot Lisa.

Mrs. Rouw said that she became suspicious when the phone rang, because the officers had not told her that Alan would be kept in custody. The Rouws went to the sheriff’s office after the call was received.

Elrod testified that the officers had received a call from a young man who had stated that his brother was carrying a gun and that he was going to kill the persons that killed Lisa, if he found them. The officers had gone to the school and talked to the caller’s brother on the 17th. When Mrs. Rouw arrived at the sheriff’s office, she was made aware that threats had been made against the person or persons who killed Lisa. As a result of a discussion of the matter, Alan was held in custody. The officers called it protective custody, but he was “booked in” at 7:15 p.m. on “suspicion of homicide.” Sheriff Colvin believed that he had so advised Mrs. Rouw, but he did tell her that Alan was being held in protective custody. Colvin said that the matter of protective custody was discussed at great length. Elrod said that it was discussed at length. Mrs. Rouw confirmed the officers’ testimony that it was agreed that Alan be held in custody because of the indications that there had been threats of violence. Although Mrs. Rouw said that Alan told her they had already “taped him,” the sheriff said that the officers had not taken any statements down that night, and he could not recall having any tape recorders in the room at that time. No tape recording of these conversations was ever produced or mentioned, except by Mrs. Rouw. The sheriff said that he had none.

On the following day, Alan was interrogated by the officers at 11:00 a.m. in the coffee room at the sheriff’s office. The deputy prosecuting attorney and the sheriff were present. Alan was advised of his rights. The sheriff produced a “rights form,” said that Alan read it himself, that it was read to him, that he was made aware of his rights, and that he signed it in the presence of the sheriff and the deputy prosecuting attorney. Alan then made a full confession that was recorded on tape and the tape was played at the trial, but the recording was not transcribed in the record. The sheriff said that Alan appeared a little scared, and he expressed the belief that Alan did “break down” once, or possibly twice, during this interview. Mrs. Rouw said that the sheriff told her after this statement had been taken, that they had gotten the statement they needed, with what they had gotten the night before.

On the next day, October 20th, Alan was taken to the Benton County jail for a polygraph examination. His father was present at the place where the test was to be given. Alan had shown some hesitancy about taking the test, and the sheriff tried to explain to the boy and his parents how the polygraph operated. Colvin said that the parents agreed to the examination before Alan, accompanied by his father, was taken to Bentonville. Marvin Rouw confirmed the fact that he agreed to the polygraph examination, but said that no one explained that they would take a statement. Yet, as abstracted by appellant, he testified:

We went to find out exactly what had happened. The sheriff asked if it would be alright. We were willing to do that because, as far as we were concerned, it was an accident and they just wanted to hear what they wanted to hear, or they wanted to hear the truth. That was up to them.

Even though Marvin Rouw admitted that the officers explained to Alan the manner in which the polygraph examination would be administered, he said that it was not explained to him. Mr. Rouw admitted, however, that he was told that Alan would be asked a series of questions during the polygraph examination, pertaining to school and the death of Lisa Evans, and that the main purpose was “to determine the truth of the death of Lisa.”

Don Rystrom, the polygraph examiner for the Benton County sheriff’s office, testified that, before interviewing Alan Rouw, he advised Alan of his rights. Rystrom exhibited a waiver signed by Alan, Colvin, and Rystrom. This instrument contained a statement of rights, which Rystrom said he read to Alan. Rystrom said that he also talked with Alan’s father, and that he “agreed with it.” Rystrom exhibited “a parent’s or guardian’s consent for a minor to receive a polygraph test,” signed by Marvin Rouw. Sheriff Colvin and Rystrom and Alan also signed a written consent to take the examination. Rystrom said that he advised Alan that he never taped any polygraph examinations. He did not advise Alan’s father that he might take a recorded statement from Alan or that the polygraph examination would not be recorded. Rystrom’s testimony about the statement taken by him is abstracted, by appellant, as follows:

After I had explained how it worked, the questions were read to Alan and he indicated to me that he had not told the truth. He wanted to tell me the truth then. He said, “Yes, I have been lying,” and I told him I would like to tape a statment and he said, “Fine.” I asked if he wanted his father or sheriff Colvin there and he said “no.”
After taking the statement I did not feel it was necessary to take the polygraph due to the circumstances in the investigation.
It would have taken me about an hour to administer the test. The statement started at 12:45 and ended at 12:54, it took nine minutes. The purpose of the polygraph was to verify Alan’s story as to what he had told the officers or his truthfulness and it was determined that he admitted that he had not told the truth.
I don’t know how long we were in the room.
I haven’t noticed any conflicts in the statement that Alan gave me. The story that Alan had told me before was that the shooting was an accident.

The confession then made was the last evidence obtained from Alan. He had been in custody less than two days.

There was no prolonged or extended interrogation at any time. I cannot understand the emphasis the majority places on the twenty day incarceration. The evidence that the Rouws agreed that Alan be held is overwhelming. The sheriff testified that he had several conversations with the Rouws about holding Alan and that he would not have held him if they had not agreed. He said that Alan’s right to make bond was discussed with his parents at length over the twenty days he was in jail and that he advised them of the bond required, but he could not remember the amount at the time of trial. Any questions of credibility on this or any other point were certainly a matter for resolution by the trial court, and we are in no position to say that the judge resolved them incorrectly. It is clear that the parents were notified when any important step was contemplated. The sheriff deferred to Mrs. Rouw’s wishes in regard to picking Alan up. Marvin Rouw clearly wanted to ascertain the truth about Alan’s involvement as much as the officers did. It is incredible that anyone could say that either of the Rouws would not know the charges on which Alan was held or what he was accused of having done. Marvin testified that he knew Alan was being held in relation to the death of Lisa, but didn’t know what the charges were. The parents were allowed to visit Alan in jail, according to Marvin, “very frequently.” He said they were turned down only one time, but did not indicate that this was at any critical time, so far as the issues here are concerned. Elrod testified that Alan’s parents and sister were able to come see him any time they wanted to, and that they never made any complaint, until the first time Alan came to trial.

Appellant relies heavily upon the language of Ark. Stat. Ann. § 45-418 (Repl. 1977), which states that when any juvenile is arrested, the arresting officer shall immediately take the juvenile before the juvenile court. We have held identical language to be directory, but not mandatory. Patrick v. State, 255 Ark. 10, 498 S.W. 2d 337. I am baffled by the majority’s reference to the two principal cases cited by appellant in support of his argument in this respect. In State v. Shaw, 93 Ariz. 40, 378 P. 2d 487 (1963), the court specifically pointed out that voluntary statements, made during transportation from the scene of arrest or during a period of detention when the statute was not being violated, are admissible in accordance with the usual rules of evidence. In State v. White, 408 S.W. 2d 31 (Mo., 1966), the court was careful to point out that it did not consider the question of spontaneous statements by a juvenile prior to being taken before the juvenile judge. There simply is no authority that would exclude Alan’s statements to Elrod when they were en route to the sheriff’s office.

Because I see no sound basis for saying that the trial judge’s holding was clearly against the preponderance of the evidence, I could not silently record an unsupported dissent.

I am authorized to state that Mr. Justice George Rose Smith and Mr. Justice Byrd join in this opinion.

      In some jurisdictions, statements have been held inadmissible solely because they were obtained in violation of similar statutes. See State v. Shaw, 93 Ariz. 40, 378 P. 2d 487 (1963); State v. Arbeiter, 408 S.W. 2d 26 (Mo. 1966).


author: Darrell Hickman, Justice.

text:
    David Lynn MULLINS v. STATE of Arkansas
    CR 79-35
    580 S.W. 2d 941
    Opinion delivered May 21, 1979
    (Division I)

      Jack Holt, Jr. and Deborah Davies Cross, for appellant (on appeal only).

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

David Lynn Mullins was convicted of delivery of cocaine in violation of Ark. Stat. Ann. § 82-2617, as amended, and sentenced to 5 years imprisonment.

On appeal he raises two issues, both related to the defense of entrapment. We find no error and affirm his conviction.

The State called two witnesses to prove its case, an undercover narcotics officer with the North Little Rock Police Department, Rick Finley, and a chemist. Finley testified he bought some cocaine from Mullins and paid him $100.00. The chemist estimated the cocaine weighed about 1/2 gram.

Mullins’ defense was entrapment, that is, he was unlawfully induced to commit the offense by Beverly Wigginton, a “confidential informant” of the North Little Rock Police Department.

Mullins called four witnesses in his defense, Ms. Wigginton, Carol Brewer, whp lived with Mullins, his employment supervisor as a character witness, and himself.

Ms. Wigginton was arrested for selling heroin and cocaine to Officer Finley in April, 1977. Finley used her as a confidential informant to make drug “buys.” She had made “buys” resulting in six or seven arrests. Both Finley and Wigginton denied she was promised anything or paid anything except nominal expenses. Both testified she did expect to receive consideration in her case for her activities. According to her, the police had recommended to the prosecuting attorney that she receive a suspended sentence and a fine. Her case, a year and a half old, had not come to trial when she testified.

She and Mullins had known each other since high school. She said Rick Davis, an acquaintance, had told her Mullins had cocaine. They went to Mullins’ home in September, 1977, and she inquired of the possibilities of getting some cocaine for a friend. Mullins replied he had none but might have some the next week.

Later, she said she called Mullins “twice at most” trying to buy some cocaine. She left her phone number and later Mullins called her. She went to his home with Officer Finley. Finley had testified that he went to Mullins’ home with Wigginton, and Mullins sold him what was supposed to be a gram of cocaine for $100.00.

Mullins admitted he had known Ms. Wigginton since high school and had, in fact, purchased marijuana from her husband. He admitted he had sold drugs only once (crystal methamphetamines) to a policeman in 1972. He admitted he had purchased cocaine every month or so, perhaps 10 times, from a man named Brad, who lives in southwest Little Rock. However, he denied ever selling drugs except in the one instance.

He recalled Wigginton’s visit to his home with Rick Davis. Several days later, he said, Wigginton called him trying to buy some cocaine and he put her off. He said she called him five or six times and he told her he wouldn’t, and in one instance couldn’t, sell her any. Finally, as a favor and to “get her off my back” he agreed to sell her some he acquired for his own use, at his cost. He said he called Wigginton informing her he had some.

Mullins testified that Wigginton came to his home with a man he did not recognize. They went into his kitchen, talked about it and he delivered some cocaine to the man and the man paid him SI00.00. He said the man asked about getting some more later, and Mullins said, “. . . I told him I didn’t think I could, that maybe later on, I didn’t know if I could or not. Just have to wait and see. ” Mullins said the man was not Finley, the undercover officer who testified for the State. Also, he said both the man and Wigginton snorted the drug in his kitchen. This was all denied by Finley and Wigginton.

Carol Brewer corroborated Mullins’ testimony.

Entrapment is a defense authorized by Ark. Stat, Ann. § 41-209 (Repl. 1977), which reads:

Entrapment. — (1) It is an affirmative defense that the defendant was entrapped into committing an offense.
(2) Entrapment occurs when a law enforcement officer or any person acting in cooperation with him, induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

In determining whether entrapment exists, the primary focus is upon the conduct of the law enforcement officer or person acting in cooperation with him. Spears v. State, 264 Ark. 83, 568 S.W. 2d 492 (1978). See also, Commentary to Ark. Stat. Ann. § 41-209.

Mullins argues that entrapment existed as a matter of law and the trial court should have directed a verdict of acquittal. We disagree. It was a fact question which the trial court properly submitted to the jury. Campbell v. State, 265 Ark. 77, 576 S.W. 2d 938 (1979).

There was testimony, if believed, which would indicate that Mullins was not unlawfully induced to make the delivery. Wigginton said she only called twice. Mullins said she called five or six times. Both testified Mullins called her and said he had some cocaine. The weight and the credibility of that testimony was for the jury to determine, not us. Lunon v. State, 264 Ark. 188, 569 S.W. 2d 663 (1978).

Mullins’ conduct in delivering cocaine to a total stranger, and taking from him $100.00, is not consistent with his story he did it only to get Ms. Wigginton “off his back.”

On appeal we do not disturb a jury verdict if it is supported by substantial evidence. Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974). There is substantial evidence to support the jury’s findings.

Other arguments raised on appeal relate to the court’s instructions. There were no objections made to the court’s instructions by Mullins, nor did he offer any. We do not consider issues raised for the first time on appeal. Golden v. State, 265 Ark. 99, 576 S.W. 2d 955 (1979).

Affirmed.

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


author: John I. Purtle, Justice.

text:
    Joe Bill WALLACE and Ruby WALLACE v. Noland TOLIVER, et al
    78-327
    580 S.W. 2d 939
    Opinion delivered May 21, 1979

      Joe D. Villines, Jr,, for appellants.

      Dale Shoup, for appellees.
   John I. Purtle, Justice.

Appellants own a tract of land in Marion County between appellees’ property and Highway 125 South. It is undisputed that in years past a public road crossed the appellants’ property and was maintained by the county. The road started in the Peel community and crossed Coon Creek and ended up in the county seat at Yellville. When Bull Shoals Lake was constructed about 1953 it backed Coon Creek up and inundated this Peel-Yellville road. However, some use was made of the road by the public up until the last few years and this is a disputed fact. It is undisputed that the public made very little use of the road after impoundment of Bull Shoals Lake. The Tolivers purchased their property after appellants purchased their property in 1971. The Bonhams acquired their property in 1969. Soon after they acquired their property, appellants fenced it in and in the process placed a portion of the fence across the old road in question.

Appellees filed suit on April 7, 1978, seeking to restrain appellants from maintaining the fence and requesting they be ordered to restore the road to its former condition and for damages. The court heard the case on August 15, 1978, and entered a decree finding the road was a public road and the public did not cease to use the road until the appellants placed a fence across it and that the fence had not been up for a period of seven years. The decree declared the appellees were entitled to use the road and ordered appellants to remove the fence which prevented its use by them. From the decree appellants bring this appeal alleging the decree is contrary to the law in this case.

Apparently appellants do not dispute the facts as found by the court. Since the findings of fact are not contested, we consider the law as stated in the decree. Since appellants also admit the road was at one time a public road, we look at the only other statement of law contained in the decree. It recited that the law says that roads may be abandoned if the public ceases to use them or if appropriated by individuals.

We agree with this statement of the law but add that the public must abandon the roads or the individual must appropriate them for a period of seven years or more. The decree made it clear that this was the court’s understanding of the law although it was not fully stated.

Appellants contend we have held to two different versions of the law in prior decisions. They argue we hold in one line of cases, anchored on the theory expressed in Nelms v. Steelhammer, 225 Ark. 429, 283 S.W. 2d 118 (1955), that a public roadway is lost to public use by erection of a gate or gap for a period of seven years. The second line of cases, according to appellants, is exemplified in McLain v. Keel, 135 Ark. 496, 205 S.W. 894 (1918), wherein it was held that the singular fact of nonuse by the public for a period of seven years will defeat the public’s right to the use of a road. Appellants then contend we confused the issues in Weir v. Trucks, 255 Ark. 494, 500 S.W. 2d 923 (1973), by combining the two previously distinguishable theories. We are urged to reclarify the law in the present case.

We have reviewed the cases cited by appellants and are unable to find the distinction as stated by appellants. In Nelms, supra, we held that public acquiescence of gates across a road for seven years amounted to abandonment of the public use. In McLain, supra, we held the facts in the case showed the public had abandoned the road for a period of seven years. One of the circumstances considered was that the road had not been worked by the county for more than seven years. The absence of gaps or gates did not prevent the public from abandoning the road. In Weir, supra, we again stated the principle set out in Nelms.

We hold that the public may abandon its claim to the use of a public road by simply abandoning it through nonuse for a period of seven years or it may lose its right of public use by acquiescing or tolerating gaps or gates without protest for a period of seven years. We have never required that there must be both nonuse for seven years plus the toleration of obstruction for the same period of time.

There were no fences, gaps or gates across the road here in controversy for a period of seven years. The court also found as a matter of fact that the public had not abandoned the use of the road for a period of seven years.

We believe the chancellor correctly stated the law relating to abandonment of public road by nonuser and therefore affirm the decree.

Affirmed.

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


author: George Rose Smith, Justice.

text:
    William McCUEN, County Judge v. Glenn JACKSON
    78-268
    581 S.W. 2d 326
    Opinion delivered May 29, 1979
    (Division I)

      Walter G. Wright, for appellant.

      Robert D. Ridgeway, P.A., for appellee.
   George Rose Smith, Justice.

The appellant is the county judge of Garland county. The appellee had been a county employee for some 17 years when he was discharged and almost immediately re-employed in another department, the county road department. A disagreement arose between the two men about Jackson’s rate of pay as a county employee and about the length of vacation he was entitled to. After Jackson brought this action for a writ of mandamus the parties reached an agreement with respect to Jackson’s vacation. This is an appeal from a judgment treating the complaint as one for a declaratory judgment and finding that Jackson is entitled to longevity pay of 10%. The appellant does not argue the merits of the case, but instead presents what we regard as essentially two procedural points.

First, it is contended that the trial court should not have treated an action for mandamus as one for a declaratory judgment. We have recognized that course as being proper. Culp v. Scurlock, 225 Ark. 749, 284 S.W. 2d 851 (1955). There we said that an action for a declaratory judgment is a remedy peculiarly appropriate to controversies between private citizens and public officials about the meaning of statutes. Here the dispute seems to be about the appellee’s right to longevity pay under the provisions of a county ordinance which has not been abstracted and is not before us. In Andres v. First Ark. Development Finance Corp., 230 Ark. 594, 324 S.W. 2d 97 (1959), we enumerated the four conditions which the courts generally hold must exist as prerequisites to declaratory relief:

(1) There must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; in other words, a legally protectable interest; and (4) the issue involved in the controversy must be ripe for judicial determination.

All four conditions appear to be present in the case at bar; so the complaint was properly treated as one for declaratory relief.

Second, the appellant argues that there is a defect of parties. He does not say who should be the defendant in the case, but apparently he means either the county or the quorum court.

We find no merit in this argument. Under Section 3 of Amendment 55 to the Constitution the county judge is given power to “hire county employees, except those persons employed by other elected officials of the county.” The enabling statute for Amendment 55 contains this pertinent language:

(B) The General Assembly further determines that the executive powers of the County Judge as enumerated in Section 3 of Amendment 55 are to be performed by him in an executive capacity, and not by order of the county court.
In the exercise of the executive powers of the County Judge as iereinabove enumerated, the County Judge shall follow the procedures established below:
* * * * «
(5) Hire county employees except those persons employed by other elected officials of the county. The County Judge, as the chief executive officer of the county, shall be responsible for the employment of the necessary personnel or for the purchase of labor or services performed by individuals or firms employed by the county or an agency thereof, for salaries, wages, or other forms of compensation. [Ark. Stat. Ann. § 17-3901 (Repl. 1977).]

Thus the appellant, as an executive officer of the county, is vested with responsibility with respect to hiring county employees and with respect to salaries, wages, and other forms of compensation. The present dispute centers upon the appellee’s proper compensation as a county employee. The appellee’s claim, as plaintiff, is being asserted, in the language of the Andres case, supra, “against one who has an interest in contesting it.” The trial court’s declaratory judgment has settled the controversy. In the circumstances we find no defect of parties.

Affirmed.

We agree. Harris, C.J., and Byrd and Hickman, JJ.


author: John A. Fogleman, Justice. John 1. Purtle, Justice,

text:
    Billy Bert TYLER v. STATE of Arkansas
    CR 79-30
    581 S.W. 2d 328
    Opinion delivered May 29, 1979
    (In Banc)

      Ronald P. Kincade, of Kincade & Cunningham, and Robert A. Newcomb, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was found guilty of theft of an automobile and sentenced to three years in the Arkansas Department of Correction. He seeks reversal of his conviction on the grounds that he was denied his right to counsel guaranteed by the Sixth Amendment to the Constitution of the United States, that he was denied due process of law by the trial court’s failure to instruct the jury on the requirement of corroboration of the testimony of an accomplice, and that the evidence was insufficient to support the jury’s verdict. We find no reversible error and affirm.

Tyler was charged with theft by taking unauthorized control of a 1976 Chevrolet automobile belonging to Lefler Chevrolet Company. The information, filed May 11, 1978, charged that the offense occurred on January 27, 1977. The case was originally set for trial on October 11, 1978. Fred C. Kirkpatrick, the attorney employed by Tyler, had filed a motion for discovery, to which the state responded on October 12, 1978. The motion had been filed on June 28, 1978, so the state moved for a continuance in order to comply with the motion for discovery and to better prepare for trial. There was no objection on the part of appellant. The continuance was granted and the case set for trial on November 8, 1978. According to the prosecuting attorney, whose statement is not controverted, he was informed by Kirkpatrick, ten days before the trial date, and before the issuance of any subpoenas for the state’s witnesses, that Kirkpatrick knew of no reason the subpoenas should not be issued. On Friday, however, before the case was to be tried on Wednesday, the prosecuting attorney was given some indication that appellant was not going to trial on the date set. Appellant filed no motion for continuance and no affidavit stating any ground for a continuance.

When this case was called for trial, Kirkpatrick announced that the defense was not ready and that Tyler had discharged him. He stated that, as an officer of the court, he felt obliged to state that the sole and only reason he was discharged was “because defendant wants a continuance.” Kirkpatrick added that, as a result of his being discharged, he had not been able to get appellant’s witnesses together and that he had not been paid anything to represent Tyler. There was no indication that this attorney was withdrawing from the case because he had not been paid. Tyler responded immediately, but did not deny Kirkpatrick’s statement in any respect. He simply stated that he did not have another attorney and had not contacted one, that he had not gotten his witnesses together and that he could not get a lawyer until after the first of the year.

The trial judge then stated that he was not going to reset the case and remarked that, lately, it seemed a ploy by people in Searcy County to show up in court on the day of trial without a lawyer in order to get a continuance. The judge said that he would make a concession, by trying another case that had been set for trial on that date, so Tyler could get an attorney and his witnesses while that trial was in progress, but that Tyler’s case would be tried as soon as that case was concluded. The trial judge also stated that Kirkpatrick would be required to remain in the courtroom throughout the trial to assist Tyler, if Tyler desired such assistance.

When the trial judge said that he would require Kirkpatrick to be present in the courtroom, Tyler said that he did not want Kirkpatrick for a lawyer, and that “[w]e might as well go ahead with this case first then. It don’t matter to me.” When the judge remarked that Tyler had no intention of calling his witnesses, even if given some time, Tyler replied that there was no way he could get them, that they were working, and that he could not find them on the job. When the judge responded that it might be the next day before Tyler’s case was started, and asked if Tyler desired the additional time, Tyler answered that there was not enough time to prepare a lawyer. The trial then proceeded.

During an in camera hearing on another matter, the judge admonished Tyler that he could not be required to testify but that if he wanted to, he would be given an opportunity to do so. The judge also reminded Tyler that Kirkpatrick was present and was sitting beside him in the courtroom ready to assist him in any way Tyler wanted. Tyler responded, “Me and him come to a disagreement on some other matters.” Tyler continued saying, “This is a legitimate thing, really, because I didn’t get my witnesses together. I had full intentions of waiting until after the first of the year to try my case on account of the election and everything. I felt if I waited until after the first of the year, things would be better organized and I would all around get a better trial and everything.” At the conclusion of the in camera session, Tyler stated, “I would say that finances and everything to do with lawyers would be a reasonable cause for postponement.”

Appellant concedes that the matter of a continuance is within the discretion of the trial court and that not every denial of a request for a continuance violates due process, even if the party is compelled to defend without counsel. See Ungar v. Sarafite, 376 U.S. 575, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964). Appellant, however, relies upon language in the Ungar opinion in arguing that “myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.” In our view, the trial judge’s insistence upon expeditiousness was far from myopic and the request for delay was farther from being justifiable. As pointed out in Ungar, the answer must be found in the circumstances of the case and particularly in the reasons presented to the trial judge at the time. The fact that the motion for continuance was not made until the day set for trial was there recognized as one important circumstance.

Appellant also relies upon the holding in Chandler v. Fretag, 348 U.S. 3, 75 S. Ct. 1, 99 L. Ed. 4 (1954), that, unless a defendant is given an opportunity to employ and consult with counsel, the right to be heard by counsel would be of little worth. We subscribe to that statement, but, in this case, Tyler had ample opportunity to employ, and did employ, counsel, but discharged him on the eve of trial. An important element in Tollett v. U.S., 444 F. 2d 622 (8 Cir., 1971), also relied upon by appellant, was the fact that the trial court did not inquire of defendant as to the circumstances of the termination of his attorney’s employment, and did not know whether the attorney had resigned or been discharged. That element makes Tollett distinguishable, because in this case, the judge was adequately informed as to the cause of termination and there was a rational basis for finding that the discharge of Tyler’s attorney, on the eve of trial, was because that attorney recognized that Tyler had no grounds for a continuance and that, by one means or another, appellant was endeavoring to postpone his trial until after the first of the year and that the discharge of the attorney was a part of that effort. The fact that Tyler did not show that he had made any effort to employ another attorney was an important circumstance, since it was reasonable to infer that the discharge of Kirkpatrick had taken place five days before the trial was to commence. The court that decided Tolled pointed out that questions such as this must necessarily be decided on an ad hoc basis, having pointed out that the United States Supreme Court had consistently maintained its “case by case” approach and that the Eighth Circuit had followed that rule. Wolfs v. Bridon, 509 F. 2d 304 (8 Cir., 1975), also relied upon by appellant. The defendant in Wolfs was blameless in finding himself without counsel on the eve of trial. He was deprived of counsel when a conflict of interest arose between him and a codefendant, who decided to turn state’s evidence.

The same court has held, in U.S. v. White, 529 F. 2d 1390 (8 Cir., 1976), that the right to counsel is a shield, not a sword, and that a defendant has no right to manipulate his right for the purpose of delaying the trial. See also, Relerford v. U.S., 309 F. 2d 706 (9 Cir., 1962). It is significant here that, as in White, where the court said the evidence was insufficient to show intentional manipulation, the appellant made no showing that he was unable to obtain counsel, did not request the appointment of counsel, and declined the opportunity afforded to obtain other counsel. But unlike this case, the reason for the discharge of previously retained counsel in White was never disclosed or investigated. And in Patton v. State of North Carolina, 315 F. 2d 643 (4 Cir., 1963), also relied upon by appellant, there was evidence indicating that the defendant had just cause for discharging his employed counsel on the eve of trial and had made some effort to obtain substitute counsel.

It is widely recognized that the right to choose counsel may not be manipulated or subverted to obstruct the orderly procedures of the court or to interfere with the fair, efficient and effective administration of justice, particularly when a change of choice is made on the eve of trial, primarily for the purpose of delay, and without making any effort to obtain substitute counsel. U.S. v. Bentvena, 319 F. 2d 916 (2 Cir., 1963), cert. den. 375 U.S. 940, 84 S. Ct. 345, 11 L. Ed. 2d 271 (1963); U.S. v. Merriweather, 376 F.S. 944 (E.D. Penn., 1974); U.S. v. Morrissey, 461 F. 2d 666 (2 Cir., 1972); Gandy v. State of Alabama, 569 F. 2d 1318 (5 Cir., 1978); U.S. v. McMann, 386 F. 2d 611 (2 Cir., 1967), cert. den. 390 U.S. 958, 88 S. Ct. 1049, 19 L. Ed. 2d 1153 (1968); U.S. v. Llanes, 374 F. 2d 712 (2 Cir., 1967), cert. den., 388 U.S. 917, 87 S. Ct. 2132, 18 L. Ed. 2d 1358 (1967); U.S. v. Abbamonte, 348 F. 2d 700 (2 Cir., 1965), cert. den. 382 U.S. 982, 86 S. Ct. 557, 15 L. Ed. 2d 472 (1966). It has been appropriately said that the right to counsel cannot be used to play a “cat and mouse game with the court,” and held that, when it is, there is a waiver of the right and the court does not abuse its discretion in denying a continuance to permit employment of a new lawyer. Leino v. U.S., 338 F. 2d 154 (10 Cir., 1964); Relerford v. U.S., supra.

When the evidence had been completed, the circuit judge, in order to ascertain whether there were any objections to the instructions he proposed to give the jury, asked Kirkpatrick to go over them with Tyler. Kirkpatrick stated that there were no objections. No request for any additional instructions was made. Appellant now complains because the judge did not give an instruction, based upon Ark. Stat. Ann. § 43-2116 (Repl. 1977), that there must be corroboration of the testimony of an accomplice before an accused can be convicted of a felony. He contends that, under the evidence in this case, Coy White was an accomplice. He had the burden of showing that White was an accomplice, before such an instruction was appropriate. McIntosh v. State, 262 Ark. 7, 552 S.W. 2d 649. Appellant relies upon White’s refusal to testify without having been given use immunity and White’s admission that he had received the engine and transmission from the stolen car.

It is appellant’s contention that, if White was guilty of receiving stolen property, he and the thief were accomplices, citing Murphy v. State, 130 Ark. 353, 197 S.W. 585 and McCabe v. State, 245 Ark. 769, 434 S.W. 2d 277. On this argument, we cannot give any weight to the granting of immunity because it does not appear from the record that White’s claim of immunity was based upon a fear of prosecution for receiving the property. As a matter of fact, the record does not disclose the basis of White’s refusal to testify without immunity. It was granted when White invoked his right against self-incrimination, after having been asked when he first saw the automobile. There was some evidence, particularly in the testimony of Tyler, that White might have been the thief. Tyler denied any connection with the stolen automobile except for having driven it out of the mud and to White’s house, after coming upon the scene where the vehicle was stuck. Tyler said that he was an employee of White at that time. White admitted that he had seen the vehicle stuck in the mud at St. Joe. It appears that White may have been seeking immunity from proseuction as the thief, rather than as the receiver. Under neither Tyler’s version nor White’s, does it appear that Tyler and White were accomplices, unless White was an accomplice as the receiver of stolen property.

We have held that the receiver of stolen property was an accomplice of the thief since Murphy v. State, supra, cited by appellant. That holding was based upon our previous holding that an accessory after the fact is an accomplice. See Polk v. State, 36 Ark. 117; Stevens v. State, 111 Ark. 299, 163 S.W. 778. In Murphy, we found that at least one jurisdiction considered the receiver as an accomplice within the rule requiring corroboration, even though he could not be convicted as an accessory after the fact. But we adopted our view solely on the basis that an accessory after the fact is an accomplice. Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913. The more generally accepted view is that an accessory after the fact is not an accomplice. 23 CJS 3, Criminal Law § 786 (1). It is clear that the decided weight of authority is that a receiver of stolen property, who did not aid, abet, assist or induce the theft, or join in a prearranged plan whereby the thief steals the property and the receiver buys it, is not an accomplice of the thief. 23 CJS 38, Criminal Law § 798 (19); Annot, 74 ALR 3d 560, 565, 567. Our view of the matter in other cases is that, under the statute on which appellant relies, an accomplice is one who could be convicted of the offense with which the defendant is charged. Henderson v. State, 255 Ark. 870, 503 S.W. 2d 889. See also, Ferguson v. State, 255 Ark. 917, 503 S.W. 2d 907. This view is in accord with the weight of authority.

At the time Murphy was decided, an accessory before the fact was defined as one who stands by, aids, abets or assists, or who, not being present, had advised and encouraged the perpetration of the crime. Ark. Stat. Ann. § 41-119 (Repl. 1964). The present criminal code treats the concept of accessories in an entirely different manner, which is consistent with the weight of authority. Under present law, an accessory before the fact is an accomplice. Ark. Stat. Ann. § 41-303 (Repl. 1977). One who was formerly an accessory after the fact is now guilty of a separate crime, i.e., hindering apprehension and prosecution. Cf. Ark. Stat. Ann. § 41-2805 (Repl. 1977) and Ark. Stat. Ann. § 41-120 (Repl. 1964). One who knowingly receives stolen property for the purpose of safeguarding or securing the proceeds of the offense or converting the proceeds into negotiable funds might now be guilty of aiding the consummation of an offense under Ark. Stat. Ann. § 41-2806 (Repl. 1977). Cf. Hester v. State, 149 Ark. 625, 233 S.W. 774. But he is not an accomplice in the sense of Ark. Stat. Ann. § 41-303 in that he aids the thief in planning or committing the crime. It also makes no difference that the receiver might be charged with another offense under the same statute as that defining the offense with which Tyler was charged. Sweatt v. State, supra. Our present law is compatible both with the view we have generally taken where other crimes are concerned and with the weight of authority. Thus, it appears that appellant was not entitled to the instruction as to corroboration of an accomplice.

We should also say that we do not agree with appellant that the trial judge had a duty to give an instruction on the necessity for corroboration of an accomplice without any request for it having been made, whatever duty he may have had to define the elements of the offense charged and the burden of the state to prove them beyond a reasonable doubt, in this case where the accused had only stand-by counsel. The court is not required to give a specific instruction applicable to the case, unless a motion has been made by a party. Ark. Stat. Ann. § 43-2134 (Repl. 1977). It is not required to give instructions when none are requested. Roberts v. State, 254 Ark. 39, 491 S.W. 2d 390. We have made an exception to this rule in a case where a jury imposed the death penalty without having been instructed that it (and only it) had the discretion to reduce the punishment to life imprisonment. Webb v. State, 154 Ark. 67, 242 S.W. 380.

We have held that one who fails to request an instruction defining what constitutes an accomplice is not entitled to complain of the court’s failure to do so. Carroll v. State, 45 Ark. 539. See also, Roberts v. State, supra. Even in a jurisdiction where the court is required to instruct the jury on questions of law arising in the case which are necessary for the jury’s information in giving their verdict, without any request by the defendant, it is not bound to instruct the jury as to the nature and effect to be given to the testimony of an accomplice on its own initiative, because the matter is collateral to the main issue. State v. Mahan, 226 S.W. 2d 593 (Mo., 1950). Failure to instruct on subsidiary matters does not amount to a denial of due process. Ballew v. Sarver, 320 F.S. 1233 (E.D. Ark., 1970).

We deem the testimony, even though it is circumstantial, to present substantial evidence that appellant stole the automobile. Charles Dennis Reeves testified that on January 27, 1977, he stopped in Clinton, on his way to Searcy. He stopped the red Camaro he was driving at Lefler Chevrolet Company, where he and Tyler test drove the 1976 Monte Carlo. Tyler drove the car around in a circle at a Dairy Queen, while Reeves was out of the car. Reeves said that later the same night Tyler said that he had some keys for the Monte Carlo and talked about stealing it. Reeves said that upon the return trip he let Tyler out of the car in Clinton. Later, he said, he saw the Monte Carlo pass him when he was near Marshall, on his way to Harrison, and the driver, whom he believed to be Tyler, waved to him. Still later, he said, he heard Tyler discussing a price for a Monte Carlo with someone, and on another occasion, Tyler and another person spoke to him about the vehicle’s having been kept at St. Joe and that it was to be stripped of parts and sold.

Dicky Lefler, part owner of Lefler Chevrolet Company, said that on January 27, 1977, two men arrived at his lot in a red car and test drove the 1976 Monte Carlo, which he found missing the next day. He said that he had last seen the car at 5:00 p.m., after the two men had returned it. L. D. Vincent, an employee of Lefler Chevrolet, also said that two men arrived at the place of business on that date, having come there in a red Camaro and that, after talking with Lefler, they drove off in a 1976 Monte Carlo. Neither Lefler nor Vincent could describe the two men. Coy White testified that the first time he saw the Monte Carlo it was stuck in the mud and Tyler asked him if he knew some way to get the car pulled out. He said that he did not see the car after Tom Wyatt pulled it out of the mud, until later, when he saw it in the woods in the National Park. It had then been stripped of its front end and doors and parts had been removed from it. White said that, at that time, Tyler gave him the engine and transmission in satisfaction of a debt Tyler owed him. Wyatt recalled pulling a car out of the mud in the presence of Tyler and White. Wyatt did not recall who asked him to do so. He said about four people walked up to him and asked him to pull the vehicle out.

This evidence was certainly sufficient to support the verdict.

The judgment is affirmed.

Purtle, J., dissents.

John 1. Purtle, Justice,

dissenting. Appellant and his employed counsel severed their relationship shortly before the case was scheduled for trial. When the case was called, appellant’s counsel informed the court he had been discharged and was not ready for trial. The court determined appellant desired a continuance and the implication is that his attorney did not request one because he saw no reason for it. Whatever the reason, the court offered a one-day delay as there was another trial ready to commence at the time. Appellant rejected the offer as not giving sufficient time for preparation of his defense and proceeded to trial representing himself. One reason the court gave for rejecting the request for a continuance was it was part of a “ploy” by people in Searcy County to obtain a continuance. No other reasons were given in support of this statement which would indicate appellant was part of such scheme.

The former attorney was ordered to sit at the defense table with appellant for the purpose of assisting him “if so requested.” The attorney was not requested to assist the appellant if he observed errors or the like. He sat there until the court was ready to give instructions to the jury at which time the discharged attorney was handed the court’s instructions. No objection was made even though there was no instruction relating to an accomplice. The trial court had not at any time warned appellant of the dangers involved in going to trial without counsel. The record further reveals appellant had not been granted a previous continuance although the state had been granted one. The case had been pending less than 6 months.

The fact that appellant discharged his attorney on the eve of trial does not waive the requirements of the Sixth Amendment that an accused has the right to the assistance of counsel. He was not even offered such assistance nor was his solvency questioned. This violates the rule in Chandler v. Fretag, 348 U.S. 3 (1954) and, specifically, Tollett v. U.S., 444 F. 2d 622 (8 Cir. 1971). Such warning is required by Adams v. U.S., 317 U.S. 269 (1942).

I also feel the instruction on accomplice should have been given on the volition of the court when an accused is not represented by counsel. Clearly, the evidence was sufficient to show Coy White was an accomplice. Therefore, I would reverse and remand.


author: Frank Holt, Justice. John I. Purtle, Justice,

text:
    Charles H. BAHIL et al v. Calvin T. SCRIBNER
    79-3
    581 S.W. 2d 334
    Opinion delivered May 29, 1979
    (In Banc)

      Catlett & Henderson, by: Leon B. Catlett; and Wilson, Dougherty & Mills, P.A., by: Mike Wilson, for appellants.

      Solloway & Jackson, P.A., by: Cliff Jackson, for appellee.
   Frank Holt, Justice.

These seven appellants were, at various times, appointed as delinquent tax collectors in Pulaski County. As compensation until January 1,1977, they received certain fees based upon a percentage of the penalty imposed for delinquent taxes. Act 342 of 1941 (Ark. Stat. Ann. §§ 84-1006 — 84-1010 [Repl. I960]). In April, 1977, appellee brought this taxpayers’ action contending that the compensation received by appellants from November 4, 1974, until December 31, 1976, was prohibited under Amendment 55 to the Arkansas Constitution. This Amendment was approved on November 4, 1974. Appellee sought an accounting and restitution of $442,450.00 as tax funds to Pulaski County. Appellants’ demurrer was overruled; they answered, and the chancellor, after a hearing on the merits, held that the facts preponderated in favor of holding that the apppellants were “officers or employees” of the county within the meaning of Amendment 55, which prohibited the further payment of fees as compensation for those appellants. The court, however, held that Amendment 55 was not self-executing and, therefore, appellants were not prohibited from receiving fees as compensation from November 4, 1974, (date of adoption) to January 1, 1975. Effective the latter date, enabling legislation was enacted, Act 127 of 1975 (Ark. Stat. Ann. § 12-1740 [Supp. 1977]), which prohibited the receipts of fees by county officials as compensation after January 1, 1975. Consequently, the court ordered appellants to account for the fees received by them from January 1, 1975, until December 31, 1976, and to make restitution for those fees after taking credit for their expenses. The chancellor, however, allowed them compensation for this period of time based on 1/12 of their net compensation for the calendar year 1974, citing Act 131 of 1975. The judgments against appellants varied individually and totalled $97,363.95.

Appellants first assert that the chancellor erred in holding that they were, as a matter of fact and law, officers or employees of Pulaski County. The appointment of delinquent tax collectors was authorized in Act 342 of 1941 as amended. § 1 of that Act provides in part:

The County Judge, the Mayor of the municipality that is the county seat . . . and the Chief County School Officer of each of the counties of this State are hereby constituted a Board to be known as the ‘Delinquent Tax Board. ’ It shall be the duty of said Board to appoint. . . collectors, of delinquent personal taxes for its respective county, and to supervise and direct the . . . collectors, appointed by them.

§ 5 provides that the delinquent tax collectors are entitled to certain fees as compensation for the delinquent taxes collected by them.

Amendment 55 to the State Constitution, approved on November 4, 1974, provides in pertinent part:

§5: Fees of the office shall not be the basis of compensation for officers or employees of county offices.

Appellants argue that they have never been employees or officers of the county but are, rather, appointees of the Delinquent Tax Board, citing Act 342 of 1941, supra. As noted by the chancellor, the constitutionality of this Act, providing for the appointment of delinquent tax collectors, was tested in Newton v. Edwards, 203 Ark. 18, 155 S.W. 2d 591 (1941). The statute was upheld. There we said:

Apparently the purpose of Act 342 is to collect taxes that are due and cannot be collected in the ordinary way . . . The legislature evidently thought that if a separate collector was appointed for the sole purpose of collecting delinquent personal taxes, much more money would be derived than under the present system.

Here, in relying on that case, the chancellor held:

The opinion in the Newton County Judge case, supra, is based upon the premise that a delinquent tax collector is an officer of the county under the provision of Article 7, Section 46. This legal precedent has not been questioned since 1941.

Also, the chancellor observed that the mutual relationship of county offices becomes apparent when the collection scheme is examined:

The delinquent tax collectors are appointed by the Board for ‘its respective county’ (Ark. Stat. Ann. § 84-1006 and see also Ark. Stat. Ann. § 84-1007). After the taxes have been levied and assessed the county collector adds 10% penalty to the taxes of the delinquent taxpayer (Ark. Stat. Ann. § 84-1001). The county collector then gives to the county clerk the list of delinquents. The county clerk then causes a notice to be run in a newspaper having a general circulation in the county (Ark. Stat. Ann. § 84-1003). The county clerk then gives to the delinquent tax collectors a list of the delinquent taxes with the delinquent tax fees added. (Ark. Stat. Ann. § 84-1008). The delinquent tax collectors then collect taxes within the county and make weekly settlements to the county clerk and pay to the County Treasurer all funds collected less the collectors’ fees (Ark. Stat. Ann. § 84-1011).

As to the facts, the chancellor found:

The facts in this case preponderate in favor of holding that defendants are county officers or employees. The defendants conducted their operations out of the county courthouse. The county supplied their office space and utilities. Their bonds were payable to the county. The county paid the employer’s part of their social security payments, and the county paid the employer’s part of their State retirement payments. It is inconsistent for the defendants now to argue they are not employees or officers of the county, as they have received benefits as employees.

Here we cannot say the chancellor’s finding is against the preponderance of the evidence, nor contrary to the law, that appellants are county officers or employees within the meaning of Amendment 55.

Appellants further contend that the court erred in finding that Act 342 of 1941 was impliedly repealed by Act 127 of 1975. Act 127 of 1975 provides, in pertinent part:

Section 1. (a) From and after January 1, 1975, fees of the office shall not be the basis of compensation for officers or employees of county offices.
Section 6. All laws ... in conflict with the provisions of this Act are hereby repealed to the extent of such conflict.

Act 342 provided that county delinquent tax collectors were to be paid from the fees they collected in their official capacity. Act 127, enabling legislation to Amendment 55, provides that no county officers or employees shall be compensated through such a system. Act 342 and Act 127 are plainly in direct conflict. The chancellor was correct in finding that Act 127 repealed Act 342.

Appellants also assert that they acted in good faith in collecting an aggregate of $1,819,203.32 in delinquent taxes and, relying upon Martindale v. Honey, 261 Ark. 708, 551 S.W. 2d 202 (1977), argue that they should not be required to make restitution from their fee compensation, even if its payment was illegal. In response, appellee relies upon Tedford v. Mears, 258 Ark. 450, 526 S.W. 2d 1 (1975), and Mackey v. McDonald, 255 Ark. 978, 504 S.W. 2d 726 (1974), arguing that those cases were not overruled by Martindale, supra, and can be distinguished. We agree. Martindale distinguished the two earlier cases, noting that Tedford dealt with a “specific constitutional prohibition against an officer receiving emoluments of his office in excess of a stated sum per annum.” The prohibition in Martindale only prevented a member of the General Assembly from being lawfully appointed to or elected to a civil office while he serves in the legislature. Tedford is more similar to the situation here, which involves a specific constitutional prohibition against receiving any fees of the office as compensation. Accordingly, appellants’ assertion of good faith does not provide a sufficient ground to avoid making restitution, as ordered by the chancellor. In addition, the chancellor made no finding as to good faith.

Appellee, on cross-appeal, contends that the chancellor erred in holding that restitution should not be made for the period from November 4, 1974, the date of Amendment 55’s adoption, through December 31, 1974. He argues that the Amendment should be interpreted to have mandated the legislature to adopt legislation abolishing the fee system retroactively to the date of the Amendment’s adoption. The chancellor held that Amendment 55 was not self-executing and did not abolish the fee system until enabling legislation was enacted, citing Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380 (1907). There it was noted that a constitutional provision is not self-executing if it merely “indicates principles, without laying down rules by means of which those principles may be given the force of law.” Here, as to Amendment 55, the chancellor noted:

Section 5 ‘provided, however, during the interim, from the date of adoption of this Amendment until the first day of the next succeeding month following the date of approval of salaries by the Quorum Court, salaries of county officials shall be determined by law. Fees of the office shall not be the basis of compensation.’

Pursuant to this mandate, the legislature enacted Act 127 of 1975, which abolished the fee system as compensation for county officers or employees as of January 1, 1975. It repealed any conflicting acts. Also enacted was Act 131 of 1975 which provides an interim method of no greater than 1/12 per month of 1974 compensation for payment of salaries of county officials until the authority of the quorum courts became effective on January 1, 1977. Act 897 of 1975, Section 4, specifically provides for the salary of the delinquent tax collector after January 1, 1977, as does Section 1 of Act 495 of 1977. As the chancellor found, there was no intent to abolish the office of deliqnuent tax collector, rather only an intent to abolish the fee compensation system. We agree that Amendment 55 was not self-executing since the legislature was empowered by Section 5 to determine interim salaries for county officials. Thus, the chancellor appropriately refused to order restitution for the 2 month period prior to the passage of enabling legislation.

Appellee asserts, for his second point on cross-appeal, that the court erred in applying its method of accounting and restitution. Appellee argues that the chancellor’s allowing appellants “1/12 per month of their 1974 fees not only gives them a windfall, but also indirectly continues the fee system for 1975 and 1976.” Appellee insists that there should be a repayment of those fees received by appellants in excess of the reasonable value of the benefit and services conferred on Pulaski County. Appellee admits it is within the juridiary’s powers of equity to set a fair, reasonable and appropriate level of compensation for these appellants for that period of time. We certainly cannot say that the chancellor’s method of accounting and restitution is not fair and reasonable in view of the enabling legislation providing for interim salaries and especially in view of the fact that, through the efforts of these appellants, $1,819,203.32 was collected by them in delinquent taxes.

Finally, appellee contends that he should have been awarded costs and attorney’s fees pursuant to Ark. Stat. Ann. § 25-301 (Repl. 1962) and Ark. Stat. Ann. § 84-4601 (Supp. 1977). § 84-4601 provides that the court may award attorney’s fees in cases in which the court orders “any county, city or town to refund or return to the taxpayers monies illegally exacted by the county, city or town ...” Although appellee argues that a refund here to the county treasurer is, in essence, a refund to the taxpayers themselves, the statute clearly applies only to suits brought against counties, cities or towns. It is inapplicable here. Neither is § 25-301 applicable, since it deals with compensation of attorneys by contract between the attorney and client and liens for fees owed.

Affirmed on direct and cross-appeal.

Harris, C.J., and Byrd and Purtle, JJ., would reverse and dismiss.

John I. Purtle, Justice,

dissenting. The appellants had been employed by the Delinquent Tax Board of Pulaski County for several years before the present suit was filed. The Delinquent Tax Board consists of the county judge, the mayor of Little Rock, and a representative from the schools of Pulaski County. The appellants retain a fee from the funds collected and remit the balance to the county treasurer.

The chancellor did an outstanding job in determining the facts and the law in this complicated case. He correctly interpreted the law and applied the facts as they relate to officers or employees of county officers. My disagreement is only as to whether the laws cited apply to appellants. I think not.

It is my feeling that appellants are employees of the cities and towns and various school districts and the county. The county has only a one-third voice in employing or discharging them and the other two-thirds lie with the cities and school districts.

Even if we were to hold appellants were officers or employees of Pulaski County it would not alter my opinion. Admittedly, Amendment 55 is the key to the solution in this matter. Had Amendment 55 not been enacted no problem would exist. However, Amendment 55 required enabling legislation as it was not self-executing. Therefore, the General Assembly was required to enact legislation for execution of the amendment.

Act 127 of 1975, implementing § 5 of Amendment 55, applies to county officers and employees. It specifically applied to certain officers and employees. However, it did not mention the Delinquent Tax Board or delinquent tax collectors. The chancellor held Act 127 included appellants by implication and thereby repealed Ark. Stat. Ann. §§ 84-1006 — 1010 which is Act 342 of 1941.

Following Act 127 of 1975, the General Assembly passed Act 131 of 1975 which set the manner and method of payment of county officers and their employees until January 1, 1977. The same reasons apply as to whether appellants were included in this act as these set out above for Act 127.

The General Assembly passed Act 897 of 1975 which provides for the salaries of delinquent tax collectors commencing in 1977. This was the first time the General Assembly had made provisions for delinquent tax collectors. The last time the General Assembly had addressed the subject of delinquent tax collectors was Act 342 of 1941 as amended.

Since the General Assembly enacted legislation in 1975 requiring the quorum court to deal with delinquent tax collectors, we know they were aware of the fee arrangement in 1975 and did not see fit to make any change until January 1, 1977, through the process of Act 897 of 1975. We must also presume they were aware of the prior enactment and existence of Act 342 of 1941 as amended.

We have never favored repeal by implication and will not so treat a statute if it can be reconciled with the existing statutes. Polk v. Booker, 112 Ark. 101, 165 S.W. 262 (1914). It is also well established that statutes existing prior to constitutional amendment will be repealed by implication only if there is irreconcilable conflict or where the statute is repugnant to the constitutional amendment. Repeal by implication, whether by the General Assembly or constitutional amendment, is not favored by the law unless the two provisions simply cannot stand together. McKenzie v. Burris, 255 Ark. 330, 500 S.W. 2d 357 (1973). We have many times held that an act of the General Assembly is presumed constitutional and therefore will not be held unconstitutional unless there is clear incompatibility between them. In such case, all doubt must be resolved in favor of the legality of the act. Jones v. Mears, 256 Ark. 825, 510 S.W. 2d 857 (1974). The General Assembly’s power is limited only by the constitution. Of course, their actions are subject to the processes of referendum if exercised by the people. We have stated that it is our duty to construe an act as constitutional if it is possible to do so. Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634 (1973). It seems clear to me that the General Assembly was fully aware of the existence of Ark. Stat. Ann. §§ 84-1006 — 1010 at all times while they were passing enabling statutes pursuant to Amendment 55. At no time did they address the delinquent tax collectors until the enactment of Act 495 of 1977. However, as previously stated, the quorum court was authorized through Act 897 of 1975 to establish salaries of delinquent tax collectors commencing on January 1, 1977. As I see it, the acts of the General Assembly and the provisions of Amendment 55 are not at all irreconcilable when viewed in the light stated herein. In fact, it seems obvious to me that the General Assembly consciously intended to leave the delinquent tax collectors’ salaries as they were until such time as they could address it properly.