author: George Rose Smith, Justice. David Newbern, Justice,

text:
    John Henry RAYFORD v. STATE of Arkansas
    CR 84-150
    683 S.W.2d 911
    Supreme Court of Arkansas
    Opinion delivered February 11, 1985

      Cross, Kearney ir McKissic, by: Othello C. Cross, for appellant.

      Steve Clark, Att’y Gen., by: Arnold M. Jochums, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

At about 7:30 p.m. on March 25, 1983, two men armed with a shotgun and pistol robbed a grocery store in Pine Bluff. The appellant Rayford and Lester Thompson were charged with aggravated robbery and theft of property. Thompson admitted his guilt and testified for the State at Rayford’s trial. Upon undisputed in-chambers proof of Rayford’s prior convictions the court submitted the issues of guilt or innocence and the enhancement ranges of punishment. The jury found Rayford guilty of both charges and imposed sentences of 30 and 10 years, which the court made consecutive. We discuss the appellant’s three arguments for reversal, none of which have merit, in the order in which they arose at the trial.

First, at a suppression hearing and again at the trial the defense questioned the reliability of the prosecution’s identification of Rayford. Two employees of the store identified Rayford as one of the robbers. Counsel argue that their testimony was unreliable owing to discrepancies in their original descriptions of the robbers and to uncertainties in their selections from photographs. Nevertheless, the witnesses’ positive identification of Rayford in the courtroom certainly “tended” to connect Rayford with the crime and therefore made the accomplice’s testimony a permissible basis for the jury’s verdict. Ark. Stat. Ann. § 43-2116 (Repl. 1977). This case is unlike Prather v. State, 256 Ark. 581, 509 S.W.2d 309 (1974), where the five witnesses who had cashed checks for the defendant were unable to identify him; so the accomplice’s identification was uncorroborated. Here Thompson’s identification was corroborated. He testified he had known Rayford all his life. He described the robbery in detail. The identification of Rayford was amply sufficient.

Second, at the outset the defense announced its readiness for trial, but after the State rested its case counsel made an in-chambers motion for a continuance because of the absence of a material witness. It is now insisted that the trial judge’s denial of a continuance was error. We find no abuse of the court’s wide discretion in the matter, not only for counsel’s lack of diligence but also for the apparent unreliability of the absent witness’s expected testimony.

We hardly need to do more than narrate the proof. On March 5, 1984, the case was set for trial on Monday, May 21. On May 3 counsel obtained a subpoena for the witness, Lavell Robinson, with a Pine Bluff address, but the sheriff was unable to find him, reporting that he had moved and left no forwarding address. At the in-chambers hearing on the motion for continuance, Rayford’s girlfriend, Patricia Mooney, was the only witness to testify in support of the motion. She said that the missing witness, a coast-to-coast truck driver, had returned to Pine Bluff on Wednesday before the trial began oil Monday. On Saturday afternoon Robinson came by Ms. Mooney’s home, but she did not communicate with the sheriff. She said that Robinson telephoned her at 8:00 o’clock on the morning of trial, promising to pick her up, but he did not show up. She again had not sought the sheriff’s assistance and had been unable to find Robinson herself, although he was still in Pine Bluff.

On Friday afternoon, before the trial on Monday, defense counsel had called Judge Williams, who was trying a case in another county, and asked for a continuance. Judge Williams replied that the jury had already been summoned and a continuance would not be granted. Also on Friday afternoon counsel filed an unverified written motion for a continuance, stating that he had been told on May 14 that the sheriff could not find Robinson. The motion alleged that Robinson was expected to return during the weekend of May 25 (after the trial) and could be served. The written notice, which had not been seen by the trial judge when he denied the oral motion during the trial, stated that Robinson would testify that “the Defendant was a passenger in the witness’ cab and was approximately 5 miles from the location of the robbery [no time being specified].” At the in-chambers hearing Ms. Mooney testified that Robinson would testify that on the evening of the robbery he picked up Rayford at 7:00 and was with him until 7:10. At the trial Rayford testified that he himself had been a cab driver, that Robinson had picked him up at 7:00 p.m. and let him out at 7:10 on the evening of the robbery, that he had gambled with others from then until 8:00 o’clock, and that none of the other gamblers would be called to testify. Neither Rayford nor anyone else testified how far he was from the scene of the robbery when Robinson let him out of the cab. Thus, the written motion’s allegation that Rayford had been five miles away at some unspecified time was unsupported even by proffered testimony.

As to diligence, the trial judge rightly pointed out that the defense should have called the sheriff instead of having the defendant’s girlfriend look for Robinson. Moreover, the defense had announced its readiness for trial and did not renew its request for a continuance until the State had rested, when a mistrial and resetting of the case would have been necessary.

As to relevance, the trial judge may consider the probable effect of the testimony of the missing witness. Kelley v. State, 261 Ark. 31, 33, 545 S.W.2d 919 (1977). The State had four eyewitnesses to the robbery, three of whom identified Rayford. Two of them said the robbery was at closing time, which was not specified. Thompson, the accomplice, said that he picked up Rayford between 5:00 and 6:00 p.m., they discussed robbing the store at closing time when there were no customers, and they went to the store between 7:15 and 7:30. They looked over the store and the parking lot for about ten minutes before they went in and robbed it. That would put the robbery at 7:25 at the earliest. The supposed testimony of the cab driver and Rayford’s own testimony supported his alibi only until 15 minutes earlier. The movant had the burden of proof. There was no proffer of testimony to show how Robinson could, 14 months later, have remembered picking up a fellow cab driver at precisely 7:00 p.m. on March 25, 1983. The trial judge had to weigh the State’s strong proof of guilt against the probable effect of Robinson’s testimony at a new trial. The denial of a continuance was not an abuse of the trial judge’s unquestioned discretion in the matter.

Third, it is argued that the court should have given three requested instructions cautioning the jury about the unreliablity of identification testimony. The instructions were unnecessary and strongly slanted in favor of the defense, contrary to our rule that non-AMCI instructions must be impartial and free from argument. AMI Criminal, viii (1982).

Affirmed.

Purtle and Newbern, JJ., dissent.

David Newbern, Justice,

dissenting. The appellant was charged in May of 1983. Counsel, who represents the appellant in this appeal, was appointed as defense counsel in December, 1983. In March, 1984, the appellant’s trial was set for May 21,1984. On May 3,1984, appellant’s counsel had a subpoena issued for Lavelle Robinson. On May 9, 1984, appellant’s counsel filed a response to a prosecution motion seeking information as to the appellant’s defense and supporting witnesses. The response was that the defense would be alibi and Lavelle Robinson would be a supporting witness.

In the motion for a continuance the appellant’s counsel stated he had been informed on May 4, 1984, by the sheriff’s department of the department’s inability to locate Lavelle Robinson. It was further stated that counsel had ascertained Robinson was out of Arkansas and would not return until May 25, 1984. This motion was filed Friday, May 18, 1984. On that same date appellant’s counsel telephoned the trial judge who was trying another case in another county. In a statement of record describing his response to the continuance motion on that date, the judge said, “I told him then that we had called a jury and I would not grant a continuance.”

The trial proceeded on Monday, May 21, 1984. At the end of the state’s case, counsel again sought a continuance for the purpose of getting the testimony of Robinson. The court’s response was:

Your motion is going to be denied. We are in the middle of the trial. I think we would have to declare a mistrial or you know, a continuance. We have a jury trial set tomorrow and a jury trial set Thursday. I guess we have a jury trial Wednesday. I’m not sure. And to grant a continuance at this time, I don’t know when we could possibly reset the matter. The court is going to deny your motion.

Then the court permitted appellant’s counsel to examine Patricia Mooney out of the jury’s presence for the purpose of making a record on the efforts to locate Robinson and the nature of his prospective testimony. Mooney testified that she was the appellant’s girlfriend and that on Saturday, May 19, 1984, she had spoken with Robinson who had assured her he would be at the trial. She also testified that Robinson had told her he would testify that the appellant was in a cab being driven by Robinson between 7:00 and 7:10 on the evening of the robbery to an address on University which she believed to be 511 University. The written continuance motion stated Robinson would testify Rayford was a passenger in Robinson’s cab approximately five miles from the scene of the robbery. Robinson apparently was capable of saying where the appellant was at that time, and that testimony could have had a vital effect. Mooney testified further that she observed appellant’s counsel receiving the same information she had received by telephone from Robinson. She said Robinson had called her at 8:00 on the morning of the trial and promised to take her to the trial at 8:30 and that she had been out searching for him during the trial.

In Thorne v. State, 269 Ark. 556, 601 S.W.2d 886 (1980), criteria for determining whether a continuance should be granted were stated. Some of the criteria were stated in terms applicable only to the Thorne Case which involved an accused’s efforts to make a last-minute change of counsel. Others are of general application. They are:

. . . whether other continuances have been requested and granted; the length of the requested delay; whether the requested delay is for legitimate reasons; whether or not the motion for a continuance was timely filed; whether or not the defendant contributed to the circumstances giving rise to the request for a continuance; . . . whether the request is consistent with the fair, efficient and effective administration of justice; whether the denial of the continuance resulted in identifiable prejudice to the defendant’s case of a material or substantial nature; . . . Not one of these factors is a prerequisite to the granting of a continuance, but these and other factors are the legitimate subject of the court’s attention when a continuance is requested. [269 Ark. at 561; 601 S.W.2d at 889]

No continuance was requested in this case other than for the purpose of obtaining the testimony of Robinson. The 30-day delay sought was not unreasonable. While the existence and prospective testimony of an alibi witness might seem conjectural when the decision must be based only on the word of the accused, here there was sworn testimony of another person showing that both she and the accused’s counsel had spoken with the absent witness and ascertained he would corroborate the accused’s testimony that around the time of the robbery the accused was elsewhere.

As to the timeliness of the motion, the circumstances must be considered. In Thorne v. State, supra, the motion was made sixteen days before trial. Here it was made only three days before the trial. In the Thorne Case the court noted the motion was made on the day the defendant learned of the problem with his counsel. No action was taken on the motion until the day the trial began. The accused was trying to obtain other counsel and negotiating a fee even as jurors were being seated. The denial of the continuance resulted in the defendant having to proceed pro se and without time to prepare to do so. This court held the denial of the continuance was an abuse of discretion.

In this case, the subpoena was issued for Robinson May 4, 1984, and was returned non est on May 21, 1984, the trial date. In his motion for a continuance counsel stated he had been informed of the difficulty of serving Robinson on May 4, 1984, and that on May 16, 1984, he had obtained (apparently incorrect) information that Robinson would be out of the state until May 25, 1984. The motion was filed on May 18,1984. While this motion was not filed on the day the problem was first perceived by the accused’s counsel, it does not appear to have been unreasonably delayed, given counsel’s apparent effort to ascertain the whereabouts of the witness.

The majority opinion makes the point that the written continuance motion was not brought to the court’s attention at the beginning of the trial and that both parties announced they were ready. Given Robinson’s statement to Mooney and counsel only two days before the trial and his statement to Mooney on the morning of the trial that he would appear, it was not unreasonable for counsel to think he would show up. When the state’s evidence ended and the witness still was not present, counsel pressed the motion.

There was nothing in the record to show the accused had in any way contributed to the need for a delay, and it is clear that denial of a continuance may have been highly prejudicial.

The opinion in Kelley v. State, 261 Ark. 31, 545 S.W.2d 919 (1977), says the trial court may consider, as one factor, the probable effect of the testimony of the missing witness. However, I do not believe even the mighty vigorous opinion of the majority in this case means to suggest the court should put itself in the place of the jury.

The importance of Robinson’s prospective testimony to this accused’s case is at least as great as was the time needed for the accused to prepare his defense in the Thorne Case. The fact that a jury had been called and the possible requirement of a mistrial are important, but they are not to be considered exclusively. On some occasions efficiency must yield ultimately to considerations of fairness to the accused.

This was a close case, but on balance I find an abuse of discretion in the denial of the motion for a continuance, therefore I respectfully dissent.

Justice Purtle joins in this dissent.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Louis RABALAIAS et ux v. Nelson BARNETT, et al
    84-209
    683 S.W.2d 919
    Supreme Court of Arkansas
    Opinion delivered February 11, 1985

      Spencer, Spencer if Depper, P.A., by; Robert L. Depper, Jr., for appellant.

      No Response.
   Darrell Hickman, Justice.

Louis and Kathleen Rabalais sued five named members of the First United Methodist Church in Batesville for breach of contract and for the tort of outrage. On motion by the church members, the trial court dismissed the complaint. On appeal it is argued that the trial court was wrong in four instances.

Two points are meritless. First, no facts at all were alleged regarding the tort of outrage. It was only asserted that the appellees wilfully and wantonly breached the contract with the Rabalaises to repair and rebuild the church organ causing the Rabalaises emotional distress. ARCP Rule 8 requires that a claim for relief shall contain “a statement in ordinary and concise language of facts showing that the pleader is entitled to relief.” Rule 12 (b) (6) provides for dismissal of a complaint for “failure to state facts upon which relief can be granted.” The two rules must be read together in testing the sufficiency of a complaint; facts, not mere conclusions, must be alleged. Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). Since no facts were alleged regarding the tort, the trial court was right to dismiss the claim. Therefore, we need not reach the question of whether the appellees enjoy charitable immunity from tort actions.

When our rules are applied to the claim for breach of contract, we conclude that the trial court was wrong in dismissing that claim. First, in testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint. Home Ins. Co. v. Williams, 252 Ark. 1012, 482 S.W.2d 626 (1972). Pleadings are to be liberally construed and are sufficient if they advise a defendant of his obligations and allege a breach of them. Allied Chemical Corp. v. Van Buren School Dist., 264 Ark. 810, 575 S.W.2d 445 (1979). In order to state a cause of action for breach of contract, “the complaint need only assert the existence of a valid and enforceable contract between the plaintiff and defendant, the obligation of defendant thereunder, a violation by the defendant, and damages resulting to plaintiff from the breach.” Williams v. Black Lumber Co., 215 Ark. 144, 628 S.W.2d 13 (1982).

In their complaint the Rabalaises alleged that they entered into a contract with the appellees on June 30, 1975, to rebuild the church organ. Prior to rebuilding the organ the appellees discontinued the services of the appellants. For their breach of contract the appellants prayed for damages. The appellees moved to dismiss for several reasons, among which was that the contract and notice of termination were not attached as alleged in the complaint. The appellants amended their complaint and attached the contract and letter of termination. Another motion to dismiss stated that the amended complaint referred to a modification of the contract but that no modification was attached. The motion also alleged that Mrs. Rabalais had no cause of action for breach of contract since she did not sign the contract.

The trial court heard testimony only on whether Mrs. Rabalais could be a party to the action for breach of contract.

There was undisputed testimony that Mrs. Rabalais had been an equal partner in the business since 1962, had worked on the restoration of organs, including the one at the appellees’ church, and kept the books. The trial court held that she had no cause of action. It also ruled that the complaint should be dismissed because no cause of action for breach of contract was stated since it did not provide the substance of the modification to the contract or allege the specifics of the breach.

Undoubtedly, the trial court was treating the motion to dismiss like a motion to make more definite and certain rather than testing the sufficiency of the complaint as is required by our rules. In this case the complaint stated a cause of action for breach of contract. The Rabalaises did not explain in detail all of the reasons for the disagreement, but that is not required. The appellants should not be denied their right to the claim. Furthermore, the preponderance of the evidence showed that the Rabalaises were partners in their business and, therefore, Mrs. Rabalais had a right to sue to enforce the contract. See Smith v. Dixon, 238 Ark. 1018, 386 S.W.2d 244(1965).

Reversed and remanded.

      This action was brought as a class action in an attempt to avoid the church’s charitable immunity. We do not reach the issue.


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

text:
    Charles E. RUESING v. CITY OF CONWAY
    84-211
    683 S.W.2d 922
    Supreme Court of Arkansas
    Opinion delivered February 11, 1985

      Guy H. “Mutt” Jones, Sr., Phil Stratton, and Casey Jones, by: Phil Stratton, for appellant.

      Jesse W. Thompson, for appellee.
   Darrell Hickman, Justice.

The only issue before us in this case is the extent of the City of Conway’s ownership of certain land condemned in 1955 to build the Beaverfork Reservoir for a water supply. The chancellor, in a declaratory j udgment action concerning this issue, declared that the city took the land in fee simple, and we find that he was right. We only have the city’s complaint and the order of taking to rely on, just as the trial court did, in making our decision.

The city had to condemn the land of John A. Robinette and his wife because thay would not sell. It filed a condemnation suit to “take and inundate” certain described land which is “below 301 feet above mean sea-level or which, being above said level, is within 20 feet of any lands that are below said level. ...” Twenty-five hundred dollars was deposited as damages for the taking. The lake was built. Undoubtedly, since then some adjoining landowners have used the lake for recreational purposes, because boat dock permits are issued to adjoining landowners by the City of Conway. The appellants argue this shows the use of the land. In any event, the appellants obtained a quitclaim deed from the Robinettes to the condemned land and claimed that, at the most, the city merely owned an easement and that they owned the land, especially the 20 feet not intended to be inundated. They filed this suit to determine the city’s interest in the land.

The appellants argue that a condemning authority may only take the estate in property that is necessary to satisfy the purpose, and since it did not need a fee simple, one was not taken. Young v. Gurdon, 169 Ark. 399, 275 S.W. 890 (1925). The 1955 order of taking does not state precisely what title the city took, whether the fee simple or easement, so we must look to the language of the order and the complaint to make our decision. We find the city took the land in fee simple for several reasons. It had the authority to do so. Ark. Stat. Ann. § 35-902 (Repl. 1962). The order of taking said it was necessary “to take and inundate” the land. The city asked “ . . . said lands be condemned and this court fix the value of said lands so taken.” (Italics supplied.) All of this confirms that the city sought the property in fee simple absolutely, not just for a use by prescription. The Robinettes did not challenge the order.

However, the appellants argue that at least the 20 feet should not be considered as taken in fee simple because it is not covered by the lake. But the order does not discriminate. Instead, in one unbroken sentence, it says all is taken together: “All that part . . . which is below 301 feet above mean sea-level or which, being above said level, is within 20 feet of any lands that are below said level ...”

A boat dock permit, such as the one used by the city, was added as an exhibit to show the current use of the property and also a letter from the manager of the city owned water system which says: '“[W]e feel that Beaverfork Reservoir should no longer be considered a part of the water supply system of the City of Conway and, unless some extreme emergency should arise, the Conway Corporation as operators of the city owned water system has no further interest in Beaverfork Reservoir.” We do not rule on the policy of the City of Conway or its treatment of landowners regarding boat dock permits; nor whether the city hás actually abandoned the lake for the purposes originally taken. Those issues are not before us. The trial court ignored this evidence, as we do, because the issue is what was taken in 1955, not what practice or use may exist today.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The City of Conway never even attempted to take anything but an easement on the 20 feet of land immediately adjacent to the 301 foot level. The easement obtained was only for the purpose of protecting the city’s water supply. The impoundment is no longer used by the city because they have a new and better source. This 20 foot strip was never inundated by the City or used for anything except control of the lake.

The original complaint alleged the purpose of taking was to “take and inundate” the described lands. The order of taking never purported to take a fee simple. It has been long settled that eminent domain takings are limited to no greater interest than is absolutely necessary to meet the public needs. Young v. Gurdon, 169 Ark. 399, 275 S.W. 890 (1925). All the city ever needed was a place to store water and it no longer needs the land. At least the 20 foot strip should revert to the original owners or their heirs or devisees.


text:
    Jerry McFARLAND and Richard SOEST v. STATE of Arkansas
    CR 84-76
    684 S.W.2d 233
    Supreme Court of Arkansas
    Opinion delivered February 11, 1985

      Howell, Price ir Trice, by: William L. Trice, III, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

This case arises out of the October 29,1982, armed robbery of Al Florn and his family at their home near Mountain Home, Arkansas. Jerry McFarland and Richard Soest, the appellants, and Mike Mc-Cracken, the state’s chief witness, were charged with burglary, robbery and theft of property, in connection with the incident. McFarland, Soest and McCracken were charged in other counties with a number of similar crimes during the same time period. One involved the robbery and kidnapping of James Pate, a Jacksonville, Arkansas, pawn shop owner, and another involved Forrest Wood, a businessman in Marion County. McFarland and Soest were convicted of burglary, robbery and theft of property in connection with the Horn robbery. McFarland was sentenced to 60 years. Soest had six prior convictions and was sentenced as a habitual criminal to 90 years in prison. On appeal they make eight arguments concerning procedural matters. We find no prejudicial error and affirm their convictions.

A1 Horn, a dealer in precious metals, was robbed at his rural home, which is a mile from the Missouri border. He, his wife, and his teenaged son were bound and gagged by two masked men. The men stripped them of their jewelry, took Horn’s briefcase, and threatened Horn with death if he did not reveal the location of his safe and the combination. The thieves were unable to open the safe and forced Horn to open it. The men took approximately $7,500 in cash, a 1901 five dollar gold piece, several rings, including a “snake” ring, a diamond cluster ring, and Mrs. Horn’s solitaire diamond engagement ring. Horn’s money clip was taken and at least five firearms were stolen, including a 410 shotgun, a wallet derringer, and a Colt revolver. A Puma hunting knife was stolen, as well as jeweler’s eyepieces, vials of diamonds, many other pieces of jewelry, and scrap gold. Also taken were various coins. The robbers left in Horn’s silver Honda automobile. The victims could not identify their robbers beyond describing their builds.

After James Pate was robbed and kidnapped in Jacksonville on January 11, 1983, the authorities were able to determine through tire tracks that McCracken might have been involved. The investigation led to Baxter County. McCracken and McFarland were both questioned and ultimately arrested. When McFarland was arrested he was wearing a wristwatch, which belonged to James Pate.

McCracken gave a number of statements to the authorities. Just two days before trial, a bargain was struck that, in exchange for his testimony in the A1 Horn case, he would receive only a 10 year suspended sentence and a $2,500 fine for that crime. He testified that he planned the robbery of Horn with McFarland, who owned a game machine business arid an interest in a local restaurant. McFarland called McCracken the morning of October 29, 1982, and asked him to meet him and his “buddy” at J 8¿ J Sales, which was the building McFarland used for his game machine business. The buddy was Richard Soest. It was decided that they would rob Horn that day. McCracken drove his blue and white Chevrolet truck. He let Soest and McFarland out near Horn’s home at approximately noon so that they could be there when Horn’s son came home from school. They then waited for Mr. and Mrs. Horn to arrive home from their shop in Mountain Home. McCracken was to return to an appointed place nearly between 7:00 and 7:15 p.m. to pick them up. He testified that when Soest and McFarland left him they had a gorilla and “spiderman” mask, two pistols, brown jersey gloves and duct tape. McCracken returned to the spot about 6 p. m. About an hour and fifteen minutes later, Soest and McFarland drove up in a small silver car and told him to follow them. He followed them into the woods and they threw a pillow case into the back of the truck. McCracken said McFarland had on a gorilla mask which he took off and threw away. According to McCracken, McFarland said he had thrown a 410 shotgun into the woods. The three returned to J & J Sales and emptied the pillow case. Inside were a brief case, several pistols, scrap gold, coins and other things. McCracken said that he saw no jewelry. He was told they did not have time to go through it and it was hidden in a video game machine. McFarland told McCracken that they had not gotten anything else and paid him $300 for driving.

McCracken testified that in the early part of December, he accompanied McFarland to Cabot and sold some items of jewelry to Bill Pitchford, McFarland’s stepbrother. Pitch-ford gave McFarland a check, which he cashed that day. Then Pitchford took them to Jacksonville where McFarland sold James Pate a solitaire diamond ring that was later identified as Mrs. Horn’s. McFarland told Mr. and Mrs. Pate that the ring belonged to Mrs. Don House who was ill. The Pates bought the ring for $800 and a rifle. The Pates corroborated this testimony. The Pates also testified that McFarland came back a few days later and sold them a ring, which was identified as the Horns’ cluster ring, and several gold coins, among which was a 1901 gold piece. He also had other rings and a vial of diamonds.

A search of McFarland’s home was made and found were a Puma hunting knife, stacks of bills, Horn’s money clip, jeweler’s eyepieces, vials of pennies, Lincoln head pennies, foreign coins, a brown jersey glove, a pillow case, and a Halloween gorilla mask. At J & J Sales, in video and pinball machines, were found numerous weapons, many of which had their serial numbers removed. Among them were Horn’s wallet derringer and a Colt pistol. Horn’s car was found six or seven miles from his home on the day of the robbery and a spiderman mask and a Halloween, ghoul-type, mask were found'nearby.

McFarland testified that McCracken had ill feelings towards him. He said that he was a bookie and that McCracken had a gambling debt to him of over $8,000 in early October. He said that when McCracken was pressed to pay it, he brought him the stolen merchandise that was found in his possession. He readily admitted that he assumed the merchandise was stolen and that he knew of the Horn robbery. He admitted possessing the rings and coins and sellimg them to the Pates. He denied that he had told the Pates the solitaire ring belonged to anyone. He testified that he did not sell anything to Bill Pitchford and that McCracken had sold him the jewelry. He testified that Bill Pitchford made out the check in payment for the scrap gold to him simply because Pitchford owed him some money and McFarland cashed the check and paid McCracken his part from the sale of the gold. He said a stack of one thousand one dollar bills was part of his payoff from McCracken. He also testified that on October 29, 1982, he had worked at his restaurant in the morning, worked on a friend’s plumbing in the afternoon, and spent the entire evening at the restaurant. Soest’s defense was essentially an alibi also.

At the Horn’s home was found a piece of paper with the writing, “4 times to left.” There was testimony that indicated one of the robbers might have written down part of the combination to Horn’s safe. According to a handwriting expert, the writing was made by Soest. Hairs taken from the spiderman mask were matched with Soest’s.

Although no argument is made as to the sufficiency of the evidence or as to sufficient corroboration of McCracken’s testimony, this recitation of facts is necessary to an understanding of the arguments made.

The major point for reversal concerns evidence heard by the jury of other crimes with which McFarland and Soest were charged. A motion in limine was granted ordering that no mention be made of the other crimes. It was agreed there would be no such mention. It was a difficult case to try for all involved simply because of the tangle of facts which concerned the crimes that were to be kept from the jury.

The appellants complain about several statements made. One occurred when McCracken was asked on cross-examination about his plea bargain, and he responded by describing the agreement, but then said: “I am still charged in Baxter County and Pulaski County, like the others.” The defense moved for mistrial. There is no evidence that this was a deliberate statement nor can we say that the offhand remark prevented the defendants from getting a fair trial. The trial judge, in his discretion, denied the motion for mistrial and observed that the defendants’ names had not been mentioned nor any crimes. Mistrial is a drastic remedy and one which must be let to the discretion of the trial judge. Nolen v. State, 278 Ark. 17, 643 S.W.2d 257 (1982). We find no prejudicial error. Price v. State, 268 Ark. 535, 597 S.W.2d 598(1980).

The other issue with regard to evidence of other crimes is more complicated. The state’s case against the appellants depended on the credibility of McCracken and James Pate, and the defense concentrated on attacking their credibility. The jury had to choose whom to believe. When McCracken was arrested, he gave several statements regarding his role in the various crimes. On cross-examination the defense, at least twice, attempted to point out inconsistencies between his testimony and the prior statements. Yet these statements were given in connection to other crimes as well as to the Horn robbery. The state naturally complained that its hands were tied in trying to rehabilitate McCracken because of the motion in limine, and that the defense was forcing McCracken to perjure himself.

Then, when James Pate was being cross-examined, he was asked if he knew Soest. Rather than mention his robbery, Pate answered “I better not say that.” When asked if he had ever been in the shop, Pate answered, “No sir, let me say no. I don’t know what to do on that. Do I have to answer it.” Again the complaint was made that the defense’s tactics were forcing the state’s witness to perjure himself. At a recess the state made this objection:

Your Honor, let the record reflect that the state objects to the kinds of questions asked of the last witness. It places them in the untenable position of the witness having to perjure themselves because of the nature of the question asked. Mr. Soest was in an armed robbery that occurred on the 10th or 11th of January, 1983 and that caused the pause of the witness and his answer in which he had to say no, rather than answer the question truthfully under the prior directives of this Court not to mention any other offenses.
Soest’s attorney: I didn’t anticipate that response, your Honor, as soon as I realized we were getting into that area, I got off of it.
The Court: This is two or three times that this has come up. The next time I may let the witness go ahead and answer.

The same thing transpired when the defense was attempting to impeach McCracken. The following took place in chambers:

State’s attorney: Your Honor, the problem Mr. Mc-Cracken has in answering the question just posed to him by [Soest’s attorney] is that [Soest’s attorney] has indicated the $150 cash on this statement has to do with the A1 Horn case when in fact, the problem with that is, if the Court will read this $150 cash has to do with another robbery that was being discussed and the figure involved with respect to the A1 Horn thing is at the bottom of the next page and it says $150 to $200 and when [Soest’s attorney] alluded to this figure the witness was unable to answer that question because it relates to another robbery.
The Court: That is what the Court understands.
State’s attorney: I don’t know how to deal with this before the j ury. It is the same thing time and time again, to make him look like a fool in iron t of the j ury when he is just completely unable to answer those kinds of questions under the orders of the Court.
The Court: That is what the Court understands and that is the reason we are taking this recess.
Soest’s attorney: If he is saying he got $150 to $200 he should have pointed to this statement down here. All I can say is I just saw this statement for the first time here in the courtroom. That was the result of a rather hurried reading, your Honor. I will not again refer to that $150 at the top of the page.
The Court: I think the jury understands the inaccuracies here. We are getting awfully repetitive.

Until McFarland was cross-examined late in the trial, the state had avoided the mention of the other crimes, although as illustrated, it caused considerable difficulty. On cross-examination McFarland was asked whether he was wearing a wrist watch taken from Pate in an armed robbery. Then McFarland was asked whether he was in possession of fire arms stolen from Pate. This is the other evidence that the appellants claim prevented them from receiving a fair trial. In our judgment the questions were fair because the entire theory of the defense was that McCracken was lying about the robbery and the circumstances of McFarland’s possession of the stolen property, especially that taken to Cabot and Jacksonville. While McFarland admitted that he was guilty of possessing stolen property and being a bookie, he contended that he was totally innocent of burglary and robbery and a victim of McCracken’s vengeance and the Pates’ mistaken memory. The defense tried several times to use the facts of the other crimes to impeach witnesses and then used the motion in limine to protect their own witnesses. As the trial court aptly stated:

There’s just been several instances where you haven’t phrased your question right which has caused problems with the witnesses being able to respond or take tactical advantage for the defense, and it’s solely because of the reason this Court has kept the existence of multiple other charges against these same defendants from being presented to this jury. The rule is for a shield and not for a sword and you all are using it for a sword.

Unif. R. Evid. Rule 404(b) provides that other crimes may be admissible to show absence of mistake and that is the theory the state argues is applicable here. But it is our judgment that the evidence of possession of other stolen items was admissible to impeach McFarland’s testimony. The state’s case depended on whether the jury believed McFarland or McCracken and their versions of the possession of the stolen property and its sale. The defense cannot tie the state’s hands with regard to any mention of what occurred in Jacksonville, while being allowed to present any version whatsoever as to McFarland’s possession of the stolen property. McFarland admitted he possessed stolen property but tried to paint himself as completely innocent of any other involvement. We find no prejudicial error. The peculiar, complicated facts, which unavoidably involve several crimes, and the theory of the defense, dictate our conclusion.

Numerous allegations of error are made regarding the trial court’s rulings on discovery. The state furnished the defense with a detailed list of the evidence that they intended to use in July of 1983, two months before the September 19 trial. A pretrial hearing was held September 2 concerning discovery and other matters. On that date a motion for continuance was made and the court stated:

Gentlemen, this matter was set for trial in May, continued on defense motion. It was set for trial in July and was continued on defense motion . . . [I]f you are going to use three attorneys, or four attorneys, there is always going to be conflicts that the attorneys are going • to have and I suppose the more attorneys that you bring into the case, the more conflicts, but this Court has got no time for a time to slot this trial in until the latter part of January. That’s where my schedule is. And I have already granted two continuances in this matter, so we are going to go to trial in this case on the 19th of September.

The defense complained that the following items were not furnished to them pursuant to the discovery order: all of Soest’s handwriting exemplars, results of the test on Soest’s hair by Steve Cox, a report concerning the stolen weapons, the plea agreement between the state and McCracken, results of McCracken’s polygraph test, a witness whose name did not appear on the witness list provided the defense, telephone records of Soest and McFarland, and a federal form used by pawn brokers when purchasing weapons.

The state conceded that it had not delivered all the examples of the handwriting of Soest taken in connection with analyzing the note which read “4 times to left.” It was the posture of the defense that it could not adequately prepare for the trial and get its expert to make these comparisons without these handwriting samples. There is no prejudice since the state said it would limit its offer of proof and omit from evidence any testimony based on examples which were not furnished. It should also be pointed out that evidently what the defense wanted were samples of Soest’s handwriting which were obviously available to the defense. Furthermore, no proffer is reflected in the abstract that the defense had a handwriting expert that would testify if he were present.

A criminal investigator for the state, Jim Carr, sent hair samples taken from several suspects to the state laboratory for tests. He got the results over the phone and took notes from the call. He testified that he was told the results were positive with regard to a match between hairs from the spiderman mask and hairs taken from John Dillard. It was the posture of the defense that these notes should have been admitted because they were exculpatory. The state said that it had no tests that it could have given the defense and was able to satisfy the trial court that no actual test results were officially made by the state. The trial court ruled that this was hearsay evidence and inadmissible. We cannot say, based on this record, that the court was clearly wrong. Furthermore, the testimony was allowed, only the notes were excluded.

The defense moved for a continuance, because it was not made aware of plea negotiations regarding McCracken. The court stated that it could find no prejudice because of surprise because the defense knew since July that McCracken would be a witness for the state. No agreement was reached until Friday before trial and the defense was informed of the particulars on Monday, the first day of trial. Inasmuch as the defense knew that McCracken would testify, no prejudice has been demonstrated.

Objection was made to the admission of numerous telephone records of McFarland, but it was not disputed by the defense that these records were in the state’s files and available to them from July. The defense could have had them for the asking. It was the posture of the defense that the state should have the records duplicated and sent to them in response to the order of the court. The court observed several times that, in its judgment, the defense chose to remain ignorant regarding a good deal of the evidence of the state. We must agree that the record bears out the trial court in this judgment.

Numerous guns, seized from McFarland’s place of business, were introduced into evidence and several of them had their serial numbers removed. McCracken testified that he had seen McFarland filing off the serial numbers on several of the guns. The defense argued that it had not been informed that tests were going to be performed upon the weapons which would reveal the serial numbers. According to the testimony of one expert, it was established that a .38 pistol was one of those taken from Horn. He could not say regarding a .22 derringer, although it was generally identified as a weapon taken from Horn. The record reflects that the defense was furnished the report on the weapons two weeks before trial, and we find no prejudicial error. Nor do the appellants show how they could possibly be prejudiced by introduction of the federal form used by pawn brokers when buying and selling weapons. Furthermore, the form was withdrawn from the jury after the objection.

McCracken testified that he made an anonymous call to the sheriff’s office in Gainesville, Missouri, telling them that the Horns had been robbed, were tied up and should be released. The state had listed as a witness to corroborate this statement the telephone operator at the sheriff’s office. Instead, another person, who was present at the office and heard the call, testified. Objection was made that this was a violation of the rules of discovery. No objection was made until after the close of the testimony and the defense has not demonstrated in any way how they were prejudiced.

As McCracken was being cross-examined by the defense, it was revealed that he had been given a polygraph examination. Objection was made at this point, because the defense had requested copies of all statements by McCracken and they had not been furnished with the results of the polygraph. The state was able to convince the court that they did not have the questions nor the results of the polygraph and did not consider it a statement. The defense was given at least three statements that McCracken had made to the authorities, which were inconsistent, and it was able to present the inconsistencies to the jury. McCracken admitted that he had lied to the police when he made these statements. We find no prejudice.

Another argument is that the trial court erred in allowing Mrs. Horn to testify that she was sexually assaulted during the robbery, because neither of the appellants had been charged with sexual assault. We have had similar questions arise in cases where, during the course of one crime, an assault of some kind or another is inflicted upon the victim. We have found the testimony to be relevant as a circumstance connected with the particular crime being tried. The evidence is necessary to present a clear picture of the crime and its aggravated nature. Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981); Butler v. State, 261 Ark. 369, 549 S. W.2d 65 (1977); Banks v. State, 187 Ark. 962, 63 S. W.2d 518 (1933).

The appellants contend that the trial court abused its discretion in admitting evidence that was not connected to the crime with which they were charged. One item introduced was a gorilla mask found at McFarland’s home. The appellants argue that this was unnecessary and irrelevant because two masks were found by Horn’s car, a spiderman and a ghoul-type mask, which were the type described by Horn as being worn by the robbers. However, McCracken testified that McFarland was wearing a gorilla mask when he returned from the Horns’. His credibility was crucial to the state and the fact of McFarland’s possession of that mask bolstered his credibility. Furthermore, Horn testified that one of the robbers was wearing a hairy Halloween mask. Rulings as to relevance are within the trial court’s discretion. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983). Here, since these items matched McCracken’s description, there was no error.

The appellants next contend that the trial court erred when it allowed the state to ask McFarland why he was in possession of a sawed-off shotgun. In support of their contention, the appellants state that no shotgun was reported stolen and that no one testified that a shotgun was used in the robbery. The record disputes both assertions. McCracken testified that McFarland and Soest discussed throwing a shotgun into the woods after the robbery. Horn reported a shotgun stolen. McCracken also testified that he saw McFarland altering firearms. The record does not reflect whether the shotgun referred to in the question was Horn’s. But McFarland denied any knowledge at all of any of the stolen items found at his place of business and inquiry into his possession of a shotgun could be considered relevant to bolstering Horn’s and McCracken’s testimony. Again, this was a discretionary ruling for the trial judge, and we find no error.

The next argument concerns the victim of another crime, Forrest Wood, visiting with potential jurors outside the courtroom prior to voir dire. Mr. Wood, a prominent businessman in the next county, was robbed and the appellants were charged with the crime. The defense moved for a mistrial. The court then questioned the jurors and excused any which might conceivably have been prejudiced by talking to Mr. Wood. There was no evidence at all that Wood mentioned his robbery. Wood left the courtroom until the trial began. The defense asked the prospective panel if anyone knew Mr. Wood and one woman answered that she did. She was excused by the trial court. The appellants have not been able to demonstrate that their case was prejudiced by this incident.

In connection with this matter, the appellants argue that they did not receive a fair trial because one of the j urors, Mrs. Elaine Albertson, failed to respond when asked if she knew Forrest Wood. After the trial began the defense moved for a mistrial because they had learned that she was the secretary in an insurance agency that had processed Wood’s claim after he was robbed. Shortly after the trial began, Mrs. Albertson was questioned out of the hearing of the jury. She readily admitted knowing Mr. Wood and that she had processed his claim. She denied knowing that the appellants were accused of the crime and no evidence was presented that she did. The defense did not ask her why she had remained silent when the jury panel was asked if they knew Forrest Wood. After the trial, two affidavits, identical in their wording, were filed by the appellants which stated that Mrs. Albertson’s employer and Wood were both officers in a Yellville Savings and Loan, that Mrs. Albertson admitted reading the Baxter County newspaper, that the paper always mentioned the Forrest Wood and A1 Horn cases together, and that Forrest Wood had been present throughout the trial.

The trial judge was satisfied that a mistrial should not be granted. The record does not reflect that Mrs. Albertson lied and in this regard we have to give deference to the trial court. This is not like the case of Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983), where a juror said that she knew nothing of a case and yet had sat in on the defendant’s first trial. Perhaps Mrs. Albertson should have answered affirmatively when the panel was asked if anyone knew Wood, and we cannot say why she did not. However, later she was certainly candid about the matter. Indeed, the defense could have asked her whether she had heard the question and why she remained silent in order to better demonstrate error.

Whether a juror or jury is impartial is a judicial question addressed to the sound discretion of the trial court, and a manifest abuse of the discretion must be demonstrated by the appellants. Holland v. State, 260 Ark. 617, 542 S.W.2d 761 (1976). The appellants in this case have been unable to demonstrate an abuse of that discretionary authority, which was their burden. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980).

Four search warrants were issued by the Baxter County Municipal Judge in connection with McFarland’s property. The appellants filed a motion to suppress because the warrants were not returned to the issuing officer in accordance with A.R.Cr.P. Rule 13.4 and because three of them could have been executed at any time during the day or night. A.R.Cr.P. Rule 13.2 requires that warrants shall provide that they be executed between the hours of 6 a.m. and 8 p.m., unless the issuing officer finds that it needs to be executed at night for various stated reasons. Only one search could clearly be characterized as a nighttime search. It took place at 12:30 a.m. The affidavit supporting the warrant stated that the items were in danger of imminent removal. That is a ground for a nighttime search. Murray v. State, 215 Ark. 46, 628 S.W.2d 549 (1982). Another search took place between 7:30 and 8:30 p.m. We find no merit to the contention that this violated Rule 13.2. Brothers v. State, 261 Ark. 64, 546 S.W.2d 715 (1977).

The issuing officer testified that he did not get the warrants back as required by Rule 13.4. He said, however, that he directed the prosecutor to file them with the circuit court. We find no substantial violation when viewed in light of Rule 16.2(e) which provides in pertinent part:

Determination. A motion to suppress evidence shall be granted only if the court finds that the violation upon which it is based was substantial, or if otherwise required by the Constitution of the United States or of this state.

The failure to return the warrants to the issuing officer was not willful and caused the appellants no prejudice. In view of recent United States Supreme Court decisions, we have no difficulty in deciding that these searches were reasonable. United States v. Leon, _U.S._, 104 S.Ct. 3405 (1984); Massachusetts v. Sheppard, _U.S. _, 104 S.Ct. 3424 (1984).

An argument is made that the state implied to the jury that the defendants had the burden of proof in the case. An investigator was asked on cross-examination if he had taken fingerprints and hair samples from the various pieces of evidence. The inference seemed to be that the officer and others had not proceeded as vigorously in seeking suspects as they might have once they had evidence against those on whom they had already focused the investigation. The defense mentioned several times during the trial that several other men undoubtedly had the kind of reputations and similar physical descriptions which could point suspicion as to their participation in the crime. After this cross-examination, the prosecutor asked on redirect “Have any of the lawyers for Mr. McFarland asked to have the items from the home and business of Mr. McFarland available to them to test for fingerprints or hair samples.’’ At most, the question was harmless error in view of the complexity of the trial, the overwhelming evidence against the appellants, and the problems which both the state and the defense encountered in seeing that a fair trial was given to these defendants.

We find that the appellants did receive a fair trial.

Affirmed.


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

text:
    Mary WILLIAMS v. CITY OF PINE BLUFF
    CR 84-106
    683 S.W.2d 923
    Supreme Court of Arkansas
    Opinion delivered February 11, 1985
    [Rehearing denied March 18, 1985.]

      Bill Rahn and William Luppen of Central Arkansas Legal Services, for appellant.

      Steve Clark, Att’y. Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The trial court convicted appellant of criminal trespass pursuant to Ark. Stat. Ann. § 41-2004 (Repl. 1977). We reach only the first point argued for reversal because we hold that it was not the intent of the legislature to treat an ordinary landlord-tenant relationship within the framework of Ark. Stat. Ann. § 41-2004. Therefore, we must reverse and dismiss this conviction.

Appellant was a monthly renter of residential property in Pine Bluff, Arkansas. She failed to pay her rent for February, 1984, and the owner gave her a three day notice to vacate. The written notice was served on February 14, 1984. The only reason for the notice was appellant’s failure to timely pay her rent. On February 24, 1984, the city of Pine Bluff issued a criminal trespass charge pursuant to Ark. Stat. Ann. § 41 -2004. She pled not guilty and defended only upon the grounds that the statute was inapplicable to her as a tenant. She was convicted and fined in municipal court and on appeal convicted and fined in the Circuit Court of Jefferson County.

There is no dispute of the fact that the appellant failed to timely pay her rent. We are faced squarely with the question of whether the criminal trespass statute or the unlawful detainer statute applies to the facts of this case. We consider three statute in reaching our decision. Arkansas Stat. Ann. § 50-523 (Repl. 1971) relates to failure to pay rent. Under this statute when a tenant fails to pay the rent when due, receives a written 10-day notice to vacate, and willfully refuses to vacate within ten days, he is guilty of a misdemeanor and may be fined from $ 1.00 to $25.00 for each day he refused to vacate. There was no attempt to comply with this staute.

The second statute we consider is Ark. Stat. Ann. § 34-1504 (Supp. 1983). This is the holdover of unlawful detainer statute as updated by Act 615 of 1981. It provides that any person who willfully and without right holds over for three days after having received a written notice to quit is guilty of unlawful detainer. Act 615 clearly spells out the procedure to be used in Circuit Court to remove a tenant who is a holdover and fails to vacate within three days after the notice. Only the first requirement of this Act was met.

The third and final statute we must consider is Ark. Stat. Ann. § 41-2004 (1) (Repl. 1977). That statute is contained in Chapter 20 of the Criminal Code, which is entitled “Burglary and other Criminal Intrusion.” The title of the statute is “Criminal Trespass.” While the compiler’s words and arrangement of the statutes are not part of the law, we note that this statute is codified in the criminal section while the two previously mentioned statutes are not. Arkansas Stat. Ann. § 41-2004 (1) states: “A person commits criminal trespass if he purposely enters or remains unlawfully in or upon a vehicle or the premises of another person. ’ ’

It is not necessary that the words of a statute be ambiguous in order to construe it. Courts consider ambiguity to exist when two or more statutes have been enacted on the same subject and each statute’s clear wording seems to indicate inconsistent results. Carter v. Bush, 283 Ark. 16, 669 S.W.2d 902 (1984). In construing a statute it is our duty to ascertain and give effect to the intent of the legislature. Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964).

The state relies upon the case of Poole v. State, 244 Ark. 1222, 428 S.W.2d 628 (1968) wherein we construed Ark. Stat. Ann. § 50-523. However, the proceedings in this case, except for the three day notice, were pursuant to Ark. Stat. Ann. § 41-2004. The federal courts considered Ark. Stat. Ann. § 50-523 in the case of Munson v. Gilliam, 543 F.2d 48 (8th Cir. 1976) wherein holdover renters obtained a preliminary injunction preventing the prosecuting attorney from seeking convictions against holdover renters. The Court of Appeals reversed on the grounds that the mere prospect of facing criminal charges was not per se irreparable inj ury and further that there was no indication that the constitutional rights of tenants would not be protected in the state courts. In Munson, Ark. Stat., Ann. § 41-2004 was not discussed. Therefore neither Poole nor Munson is apposite in the present case.

No case has been cited nor have we found an appellate case where a holdover tenant has been convicted of criminal trespass. This court held in Grays v. State, 264 Ark. 564, 572 S.W.2d 847 (1978) that criminal trespass is a lesser included offense in the crime of burglary. There is no doubt but that this court has previously considered the criminal trespass statute to require an illegal entry and such entry to constitute the criminal offense. Grays v. State, supra; commentary to Ark. Stat. Ann. § 41 -2004. Oh the other hand we have treated Ark. Stat. Ann. §§ 50-523 and 34-1504 as the correct statutes in the holdover tenant situation. Both statutes deal with individuals who fail to pay rent. Neither statute mentions criminal trespass, and Ark. Stat. Ann. § 41-2004 does not mention or refer to landlords or tenants. Thus, it is apparent the legislature has historically treated the two types of illegal occupancy in different ways. In determining the intent of the legislature the reason and spirit take precedence over the letter of the law, especially in cases where strict adherence to the letter would result in absurdity or injustice or would defeat the plain purpose of the law. Carter v. Bush, supra; Berry v. Gordon, supra.

The General Assembly clarified and updated the unlawful detainer statute by Act 615 of 1981. There can be no doubt but that the legislature was aware of the two different types of illegal entry or occupancy of property. The landlord-tenant statutes have been in force in almost the same words since 1875. The fact that a long standing statute has gone unchallenged is persuasive of its validity. Poole v. State, supra. It is obviously the intent of the legislature that the criminal trespass statute does not apply in landlord cases.

A general law does not usually apply when a specific one governs the subject matter. Thomas v. Easley, 277 Ark. 222, 640 S.W.2d 797 (1982). Arkansas Stat. Ann. § 41-2004 is clearly general and Ark. Stat. Ann. §§ 50-523 and 34-1504 are specific. The latter statute is both older and newer than the former, as the 1875 version was amended in 1981. For the foregoing reasons we hold that the conviction of appellant should be reversed and dismissed.

Reversed and dismissed.

Dudley and Newbern, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. The language of the statute at issue is clear and certain. It is as follows: “A person commits criminal trespass if he purposefully enters or remains unlawfully in or upon a vehicle or the premises of another person.” Ark. Stat. Ann. § 41-2004(1) (Repl. 1977). In the case at bar, the appellant remained unlawfully upon the premises of another person.

The majority, in adopting the argument of the appellant, bases its opinion on the notion that the statute requires an unlawful entry. The concept is without foundation. The statute, quoted in full above, does not mandate an unlawful entry; it is applicable either when one unlawfully enters or when one remains unlawfully. After the appellant refused to pay rent and was given written notice to leave, she remained unlawfully. The clear and certain language of the statute was violated.

The majority quote Carter v. Bush, 283 Ark. 16, 669 S.W.2d 902 (June 11, 1984), as stating that when two statutes are enacted on the same subject but are inconsistent, we seek to ascertain the true intent of the legislature. The citation is inappropriate for two reasons. First, the language is no longer in the opinion. See substituted opinion, Carter v. Bush, 283 Ark. 16, 677 S.W.2d 837 (1984). Second, the criminal trespass statute at issue in this case and the unlawful detainer statute are not inconsistent. The criminal trespass statute merely provides a criminal remedy for unlawfully remaining, while the unlawful detainer statute provides a civil one. These are clearly alternative remedies, not inconsistent ones. If they were inconsistent, most of our criminal statutes would be invalid because an alternative civil remedy is nearly always available.

I dissent.

Newbern, J., joins in this dissent.


author: John I. Purtle, Justice.

text:
    Kenneth Wayne DAVIS v. STATE of Arkansas
    CR 84-155
    683 S.W.2d 926
    Supreme Court of Arkansas
    Opinion delivered February 11, 1985

      Holmes <h Trafford, for appellant.

      Steve Clark, Att’y Gen., by: Joyce Rayburn Greene, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted of aggravated robbery and theft of property and was sentenced, as an habitual criminal, to a total of 35 years in prison. On appeal, he argues that the court erred in failing to direct a verdict in his favor and in allowing a police officer to testify to a witness’s lineup identification of appellant. We think the trial court was correct in both instances and affirm.

Appellant contends that the trial court should have directed a verdict because the evidence was insufficient to sustain a conviction. Appellant’s trial was held over six years after the robbery took place. The only evidence implicating appellant in the crimes was the testimony of the manager of the store that was robbed. The manager testified that appellant pointed a gun at his head during the course of the robbery and that over $12,000 was missing after appellant and his accomplices left the store. The manager was unsure whether appellant was then wearing a beard, but he testified that he remembered certain other features of appellant’s face. The manager was positive in his identification of appellant as one of the robbers. The manager and a police officer testified that the manager had identified appellant in a lineup held just over a year after the robbery.

Appellant testified that he was out of the state on the day of the robbery. A convicted accomplice who denied his own participation testified that he was not yet acquainted with appellant on the day of the robbery and could not account for appellant’s whereabouts on that day.

The manager’s testimony, if believed, is clearly sufficient to establish the elements of the crimes of aggravated robbery and theft of property. Ark. Stat. Ann. §§ 41-2102; 41-2103 and 41-2203 (Repl. 1977).

On appeal we review the evidence in a light most favorable to the appellee and affirm if there is substantial evidence to support the conviction. Substantial evidence must do more than create a suspicion; it must be of sufficient force to compel a conclusion with reasonable certainty. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The accuracy of the manager’s identification of appellant and the alleged weaknesses of that identification were matters of credibility to be resolved by the jury. The jury in this case had the choice of believing the manager or believing appellant. They obviously believed the manager and we are bound by the jury’s judgment as to the credibility of witnesses. Ellis v. State, 279 Ark. 430, 652 S.W.2d 35 (1983). We have held before that the uncorroborated testimony of one state’s witness is sufficient to sustain a conviction. Meeks v. State, 161 Ark. 489, 256 S.W. 863 (1923). See also Clark v. State, 246 Ark. 1151, 442 S.W.2d 225 (1969); Canada v. State, 169 Ark. 221, 275 S.W. 327 (1925); Melton v. State, 165 Ark. 448, 264 S.W. 965 (1924); and Boykin v. State, 270 Ark. 284, 603 S.W.2d 911 (Ark. App. 1980). We find substantial evidence to support the convictions.

Appellant’s second point concerns a police officer’s testimony that the manager identified appellant at a lineup. The manager testified by way of a videotaped deposition because he is now in the armed forces and stationed at a distant post. He was cross examined by appellant’s attorney. There is no allegation that the lineup procedure was defective in any way.

Appellant recognizes that we have held proof of this type to be admissible and not hearsay under Unif. R. Evid. 801 (d) (1) (iii). Hilton v. State, 278 Ark. 259, 644 S.W.2d 932 (1983); Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982); Martin v. State, 272 Ark. 376, 614 S.W.2d 512 (1981). He urges us to overrule these cases.

Appellant has presented neither citation nor convincing argument which suggests to us that these cases, and indeed Unif. R. Evid. 801 (d)(l)(iii) itself, should be overruled. We decline to do so. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Carolyn Mae CHANDLER v. STATE of Arkansas
    CR 84-194
    683 S.W.2d 928
    Supreme Court of Arkansas
    Opinion delivered February 11, 1985

      William R. Simpson, Jr., Public Defender, by: Thomas J. O’Hern, Deputy Public Defender, for petitioner.

      Steve Clark, Att’y Gen., by: Sandra Tucker Partridge, Asst. Att’y Gen., for respondent.
   Robert H. Dudley, Justice.

The sole issue in this case is whether the petitioner was brought to trial within the period required by the speedy trial rules. A.R.Cr.P. Rules 27 through 30.2. Petitioner, Carolyn Chandler, was arrested for murder on August 14, 1981. She told the arresting officers that she resided on Battery Street in Little Rock. Three days after her arrest she was taken before the Little Rock Municipal Court to have the amount of bond set. By that time she had decided to move back to her mother’s home at 624 North Wood in Stuttgart. Her mother, Amelia Scott, posted a cash bond for her, and petitioner told the police and the municipal court personnel that she was moving back to Stuttgart. The bond release form clearly shows her address as 624 North Wood, Stuttgart, phone number 673-4209, and that her local relative, Amelia Scott, had the same address and telephone number. Petitioner was released on the cash bond and bound over to the circuit court. The municipal court clerk forwarded the bond, but not the bond release form, to the circuit clerk. On October 6,1981, the circut court mailed a notice to petitioner, at the former Little Rock address, advising her that her plea and arraignment was set for October 14, 1981. Notice was not sent to her at the Stuttgart address. She did not appear for plea and arraignment, and an alias warrant was issued. Her bond was forfeited without notice. It is undisputed that petitioner resided at the Stuttgart address from the time of her release on bond until she was arrested on an alias warrant in March, 1984. The circuit court refused to dismiss for failure to grant a speedy trial and set the case for trial on the merits. Petitioner seeks a writ of prohibition. We grant the writ because the speedy trial rules have not been followed.

An accused, the victim, and the public are entitled to have criminal trials promptly held. Accordingly, we have promulgated the speedy trial rules. In order to ensure compliance, the speedy trial rules provide that an accused, if not promptly tried, will be absolutely discharged. Rule 30.1(a).

In the case at bar, the petitioner should have been tried within eighteen months from the date of her arrest. Rules 28.1(c) and 28.2(a). Since she was arrested on August 14, 1981, and trial was not scheduled until September 10, 1984, the charges must be absolutely discharged unless one of the authorized periods of exclusion is applicable. Rule 28.3. The burden is upon the State to show good cause for an untimely delay in the trial. Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982). The State contends that the period during which petitioner was in Stuttgart should be an excluded period because petitioner’s whereabouts were unknown to the circuit court. See Rule 28.3(e). The argument is premised upon the failure of the municipal clerk to forward to the circuit clerk the bond release form which contained petitioner’s Stuttgart address.

The State has a duty to make a diligent, good faith effort to bring an accused to trial. The failure of the State to check the available court records or otherwise demonstrate any diligence in locating the accused over a two and one half year period can not be excused. To hold otherwise would encourage needless delays in the trial of criminal cases.

The writ of prohibition is granted.


author: Steele Hays, Justice.

text:
    Patricia PENN v. Dewey E. PENN et al
    84-273
    683 S.W.2d 930
    Supreme Court of Arkansas
    Opinion delivered February 11, 1985
    [Rehearing denied March 25, 1985.]

      Ponder ir Jarboe, for appellant.

      Gardner ir Steinsiek, by: James W. Steinsiek, for appellees.
   Steele Hays, Justice.

This case turns on whether there was a sufficient designation in writing to comply with Ark. Stat. Ann. § 67-1838 (Repl. 1980), so that certificates of deposit belonged to the survivor, rather than to the estate of the decedent. The Chancellor found there was no right of survivorship. That finding was clearly erroneous and requires reversal.

The facts are not disputed. In 1979, Guthrie Penn, using $70,000 inherited from his mother, purchased two certificates of deposit from the First National Bank in Blytheville. When the CD’s matured, he left $10,000 at the bank in a joint account with his daughter-in-law Patricia Penn, but because of a more favorable rate of interest at the Blythe-ville Federal Savings and Loan Association, he used $60,000 to purchase two $30,000 CD’s from the savings and loan association. These CD’s he also had issued to Guthrie Penn or Patricia Penn and they both signed a signature card relative to each CD stating that the account was held in joint tenancy with right of survivorship.

When the CD’s matured thereafter Patricia Penn would surrender the old CD’s and new CD’s would be issued to Guthrie Penn or Patricia Penn to replace the matured CD’s. No new signature cards were signed, the existing.signature cards were simply altered with a white substance obliterating the old numbers and dates with new numbers and dates typed in. Guthrie Penn did not come to the savings and loan office on these occasions when the CD’s were surrendered and reissued. The final two CD’s were issued in October, 1982.

On December 10, 1982, Guthrie Penn died. Three days after his death, Patricia Penn surrendered the CD’s and deposited the proceeds in a Memphis bank in her name and that of her husband. Appellees, who are five of Guthrie Penn’s six children, sued Patricia Penn claiming the CD’s belonged to the estate of their father and asking the chancery court to impose a constructive trust upon five/sixths of the proceeds. The Chancellor held that Ark. Stat. Ann. § 67-1838 was not complied with and ordered Patricia Penn to deposit $50,000, plus interest, in the registry of the court. On appeal, we reverse.

Our statute, § 67-1838, provides that savings accounts in savings and loan associations may be opened in the name of two or more persons, and if the person opening such account designates in writing that the account is to be a “joint tenancy” account, or a “joint tenancy with right of survivor-ship” account, or that the account shall be payable to the survivor or survivors of the persons named in such account, then such account and all additions thereto shall be the property of such persons as joint tenants with right of survivorship. The statute also provides that during the lifetime of such persons, the account may be paid to any one of them, if no contrary written designation is given the association.

We can conceive of no reason to hold there was not a sufficient designation in writing in this case. Guthrie Penn unquestionably took the necessary steps to create a joint account with right of survivorship with Patricia Penn. Nor is there any suggestion from the wording of the statute that what was plainly intended in writing should be abrogated simply because when the CD’s were reissued, the same signature cards were used in connection with the new CD’s. A fatal weakness in the appellees’ position is that when Patricia Penn surrendered the matured CD’s and had them reissued to herself and Guthrie Penn she was legally free to have them issued to herself alone, because under the wording of the statute either she or Guthrie Penn was entitled to claim the proceeds, since no “contrary written designation” was given to the assocation. Thus, under the wording of the statute, while Guthrie Penn and Patricia Penn were still living, either of them could hve reissued the CD’s in the same manner, or in their joint names, or even cashed them outright.

Appellees submit the money used to purchase these CD’s belonged to Guthrie Penn and that is not disputed. They then cite us to language in Snow v. Martensen, 257 Ark. 937, 522 S.W.2d 371 (1975), where we said § 67-1838 is not to be interpreted as “closing and locking the door behind a joint account with right of survivorship when once the money is deposited in two names . . . regardless of whose money is involved and who makes the deposit.” But that language must be read in the context of that case, which is in marked contrast to the case before us. In Snow v. Martensen, the deceased depositor never signed a signature card creating a joint account, nor gave any designation in writing (or otherwise) that she intended the deposit to be in joint tenancy with right of survivorship. The decedent died five days after the account was opened and there was no proof she even knew it was in a joint tenancy. The account was created in the first instance as a joint tenancy account simply upon the instructions of the individual claiming the funds by right of survivorship, Mrs. Martensen, and we pointed out that to apply joint tenancy to those facts “would create a situation wide open for fraud.” we adhere to that view.

By analogy, appellees argue that Guthrie Penn signed nothing when the CD’s were reissued and new numbers, new interest rates, and new maturity dates were assigned. But the significant fact is that Guthrie Penn clearly had designated in writing the intention to create a joint tenancy with Patricia Penn when the CD’s were first purchased and twice again when they matured, whereas in Snow v. Martensen, there was no designation in writing that Mrs. Box, the depositor, intended a joint account with Mrs. Martensen, to the exclusion of other heirs. On as many as four separate occasions Guthrie Penn demonstrated in writing his intention to create a joint tenancy with Patricia Penn.

Appellees also cite McDonald v. Treat, 268 Ark. 52, 593 S.W.2d 462 (1980), where we affirmed the trial court’s holding that money deposited in a Paragould savings and loan association belonged to the estate of the depositor, rather than to a niece who claimed the acount by survivor-ship. Again, the.important distinction between that case and this one is there was no written indication the depositor intended to create a joint tenancy with right of survivorship. The language of McDonald v. Treat, supra, both as to the purpose of our statutes (§ 67-552 and § 67-1838) and the need for certainty in this area of the law, is appropriate:

At the outset we stress the desirability of certainty with regard to payable-on-death bank accounts and certificates of deposit. Such a disposition of money is similar to a will in that it may be changed by the property owner during his lifetime and does not take effect until his death. The law carefully safeguards the integrity of wills, but under the earlier statutes there was a regrettable degree of laxity with respect to payable-on-death accounts. We summarized the situation in Cook v. Bevill, supra, in construing new statutes applicable to bank deposits:
It is a mild statement to say that Act 260 of 1937 created a maze of problems in the handling of joint bank deposits and certificates. Much litigation over those deposits has reached this Court. Many decisions had to be made by ascertaining the intent of the depositor from parol evidence “after death had sealed the lips of the person principally concerned.” Ratliff v. Ratliff, Adm’x., 237 Ark. 191, 372 S.W.2d 216 (1963). Act 260 had minimal written requirements which fell far short of being sufficient. In that situation the Legislature and the banking interests turned to the comprehensive act under which the building and loan associations had been operating for years.
Thus what the new statutes did was to correct the earlier state of uncertainty by requiring that persons who resort to payable-on-death accounts or certificates designate in writing, over their signatures, just who is to receive the money at their death.

We conclude that Guthrie Penn’s written designation of a joint tenancy with Patricia Penn was clear, and under § 67-1838 either he or Patricia Penn was entitled to the proceeds of these certificates of deposit during their lifetime, or by survivorship on the death of the other.

Accordingly, the decree is reversed.


author: David Newbern, Justice.

text:
    Wanda SMITH and Betty WADE, Co-administratrices of the Estate of Hershel Wane SMITH, Deceased v. Betty ROANE, Special Administratrix of the Estate of Dudley C. ROANE, Deceased
    84-218
    683 S.W.2d 935
    Supreme Court of Arkansas
    Opinion delivered February 11, 1985
    [Rehearing denied March 11, 1985.]

      Fletcher C. Lewis and Jim O’Hara, for appellants.

      Butler, Hicky, Hicky ¿r Routon, Ltd,., by: Phil Hicky and Preston G. Hicky, for appellee.
   David Newbern, Justice.

This is a wrongful death case, thus our jurisdiction arises under Arkansas Supreme Court and Court of Appeals Rule 29(1 )(o).

The question is whether the determination of an issue in a previously decided insurance coverage case involving these parties is preclusive of an issue in this wrongful death action. The trial judge held there was no such preclusion, and we affirm.

Dudley Roane shot and killed Hershel Smith. Smith’s estate filed this wrongful death claim against Roane. Thereafter, Roane’s insurer, Fireman’s Insurance Company, sought a declaratory judgment against Roane to the effect its policy issued in favor of Roane did not cover any liability he might have arising from the incident. Smith’s estate was also a named defendant.

In the declaratory judgment action, the question was whether a coverage exclusion clause applied. The clause provided that if the insured intended or expected the injury to result from his act, there would be no coverage. The jury, in response to a specific interrogatory, found that Roane neither intended to shoot Smith nor expected injury to result to Smith from his act. Thus the defendant, Roane, prevailed in the action, as it was determined his insurance policy covered his possible liability to Smith’s estate. Roane thereafter died, and the wrongful death action proceeded against Roane’s estate, resulting in a judgment in favor of Roane’s estate.

In the wrongful death action, Smith’s administratrices moved for a partial summary judgment to prevent Roane’s estate from claiming justification or self-defense. The motion was based on argument that Roane’s estate could not raise that defense because it had already been determined that Roane did not intend or expect the injury to occur to Smith and thus his estate could not claim justification or self-defense because inherent in such a position is intent or expectation that Smith would be injured by Roane’s act.

This is not a matter of res judicata which, through doctrines of merger or bar, precludes relitigation of a cause of action. The first cause of action was one in contract seeking a declaration the insurer was not contractually bound to defend Roane or his estate. The second cause of action is that of Smith’s estate against Roane’s estate for wrongful death. We are dealing here with a matter of collateral estoppel or, as the Restatement of Judgments would say in preferable terminology, we are concerned with “issue preclusion” rather than extinguishment of a claim. Restatement (Second) of Judgments § 27 (1982).

Section 27 of the Restatement requires that an “issue” have been litigated in the previous case to be binding in the second case. There is a temptation to speak here in terms of determination of “evidentiary facts” as opposed to “ultimate facts” or “mediate datum” as opposed to “ultimate facts” as do some great opinions in this area of the law. See, e.g., The Evergreens v. Nunan, 141 F.2d 927 (2nd Cir. 1944). We prefer to do as the Restatement comment j. to § 27 suggests, however, and say simply the issue determined in the first case was just not the same as that determined in the second.

The danger in allowing the determination that Roane did not intend or expect the firing of his pistol to injure Smith to preclude him from defending the wrongful death action on the basis of justification is apparent when it is considered that Roane had been physically attacked by someone other than Smith who was a member of a group of persons including Smith. Roane was intoxicated and had been sleeping or trying to sleep in his pickup truck when he was attacked and had his nose bloodied and his glasses knocked off. Roane could have fired his pistol at someone other than Smith, or he could have been firing at no one, j list hoping to scare away his real or perceived antangonists. The point here is that we are not to engage in speculation. The appellants’ burden is to demonstrate that the precise issue on which they claim the court and other parties are bound and which is precluded from being raised was decided in the previous case. JeToCo Corporation v. Hailey Sales Company, 268 Ark. 340, 596 S.W.2d 703 (1980). The appellants have not successfully done so.

That the issue sought to be precluded in the second case is not the same as that of intent or expectation of injury decided in the first case is illustrated by an instruction given by the trial court. The instruction was:

No person shall be civilly liable for actions or omissions by such persons when intended to protect themselves or others from personal injuries during the course of a felony.

The appellants urge this instruction was obviated, and should not have been given, because the intent of Roane not to injure Smith had been determined. However, the intent referred to in the instruction is the intent to protect oneself or others from injury, a very different question from that of intent or expectation of injury caused by one’s act.

The law of the effect of prior adjudiciation seems never to present easy questions. Law professors have trouble thinking of questions as difficult as the one presented here, as they only occur in real life. Both parties presented excellent briefs deserving of our compliments.

Affirmed.


text:
    David W. SOUTHERN, James DUPLANTIS, Thomas M. WALKER, Jackie LOMAN, Lloyd HAGER, Tommy RODEN and William CARNEY v. STATE of Arkansas
    CR 84-53
    683 S.W.2d 933
    Supreme Court of Arkansas
    Opinion delivered February 11, 1985

      William M. Cromwell, J.F. Atkinson, Jr., and Robert R. Cloar, for appellants.

      Steve Clark, Att’y Gen., by: Joyce Rayburn Greene, Asst Att’y Gen., for appellee.
   David Newbern, Justice.

The appellants were convicted of driving while intoxicated. They were tried separately in municipal court in Fort Smith, and their cases were consolidated for appeal to the Sebastian County Circuit Court where their convictions were affirmed in non-jury proceedings. In their appeal in this court the appellants question, among other things, the constitutionality of parts of Act 549 of 1983, the Omnibus DWI Act, thus our jurisdiction arises from Arkansas Supreme Court and Court of Appeals Rule 29(1 )(c).

With respect to appellants Southern, Roden and Hager we must remand to the trial court for resentencing. The sentences of these appellants were determined upon consideration of prior convictions of driving while intoxicated and in accordance with sentencing enhancement portions of the Act. However, the record does not show that these defendants had or waived legal counsel in those proceedings. Prior convictions may not be considered for purposes of the sentencing enhancement portions of the act unless the record shows the accused had counsel in the trials leading to the prior convictions or that the right to counsel was waived. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984). In oral argument counsel for the appellants and for the state agreed the case should be remanded, the trial court will be free to reexamine the record for evidence pertaining to this report, but neither side may augment the record at this stage. The judgments are otherwise affirmed as to all of the appellants.

The appellants raised a number of constitutional arguments, but because some of them have been resolved in recent decisions of this court, it was determined in oral argument that the appellants seek rulings on two points in addition to the sentencing question. They are, (1) whether an accused is denied the constitutional right to confront witnesses against him when breath samples which resulted in conviction pursuant to Ark. Stat. Ann. § 75-2503(b) (Supp. 1983) are destroyed and unavailable at the trial, and (2) whether doctrines of prosecutorial discretion and separation of powers are violated by the portion of the Act which eliminates the authority of judges and prosecutors to reduce charges levied by police officers. Ark. Stat. Ann. § 75-2508 (Supp. 1983).

1. Confrontation

Each of the appellants was given a breathalyzer test, and testimony of police officials showed each appellant scored in excess of .10% thus showing violation of Ark. Stat. Ann. § 75-2503(b) (Supp. 1983). The appellants objected to the introduction of the test scores into evidence as the breath samples had not been preserved so that they might be subsequently examined by the appellants or their witnesses.

The appellants cite the Fifth Amendment to the U.S. Constitution although their argument is couched in terms of the right to confrontation found in the Sixth Amendment. They also cite Article 2, § 10 of the Arkansas Constitution. In Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979), we held that neither the Sixth Amendment to the U. S. Constitution nor Article 2, § 10, of the Arkansas Constitution guaranteed the right to confront physical evidence as opposed to witnesses. If the appellant’s citation to the Fifth Amendment to the U. S. Constitution was intentional and their argument is that the state’s inability to present the breath samples was a deprivation of due process of law, (more properly argued by citing the Fourteenth Amendment) that argument was clearly answered in Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984), citing California v. Trombetta, _U. S__, 104 S.Ct. 2528 (1984).

2. Separation of Powers

The gist of the appellants’ argument here is tht the prosecutors and the courts traditionally have had the power to reduce charges or convict of a lesser offense included in the one charged and that this traditional judicial or administrative power is unconstitutionally invaded by § 8 of the Act, Ark. Stat. Ann. § 75-2508 (Supp. 1983), which prohibits the reduction of charges. A part of this argument is that the arresting officer becomes the only person who may determine the offense to which the accused must be tried or sentenced on a plea of guilty.

We answered the fundamental separation of powers argument in Sparrow v. State, 284 Ark 396, 683 S.W.2d 218 (1985). There we addressed precisely the same arguments against removing from the prosecutor and the court the power to reduce charges and putting the charging “power in the hands of the policeman.” We said,

[T]his part of the law is not unconstitutional. It is well settled that it is for the legislative branch of a state or federal government to determine the kind of conduct that constitutes a crime and the nature and extent of the punishment which may be imposed. [Citations omitted.]

In Lovell v. State, supra, it was held that it is not a violation of the Arkansas Constitution for legislation to permit a police officer rather than a grand j ury or prosecutor to file a misdemeanor criminal charge, but we issued a caveat in this respect for felony cases. None of the appellants in this case was charged with a felony.

The convictions are affirmed. The cases of appellants Southern, Roden and Hager are reversed as to sentences only and remanded to the circuit court for resentencing.


author: George Rose Smith, Justice.

text:
    Roy L. BALENTINE v. ARKANSAS STATE BOARD OF EDUCATION
    84-224
    684 S.W.2d 246
    Supreme Court of Arkansas
    Opinion delivered February 18, 1985

      Guy Jones, Jr., P.A., for appellant.

      Steve Clark, Att’y Gen., by: C. R. McNair, III, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The State Board of Education, after a hearing, revoked the appellant’s certificate as a school superintendent. The circuit court upheld the revocation. Upon this appeal, which comes to us under Rule 29(1 )(c), the appellant does not question the accuracy of the State Board’s finding that Balentine knowingly falsified the records of the Timbo School by overstating the number of students enrolled, the number of students transported to the school, and the number of school lunches for which reimbursement was claimed. Instead, the appellant makes one argument, that the State Board’s action was not authorized by the controlling statute, Ark. Stat. Ann. § 80-1228 (Repl. 1980).

The pertinent part of the statute is its first sentence:

The State Board of Education is hereby directed to revoke the teachers certificate of any teacher of this State who knowingly falsifies any attendance records kept by such teacher that are used in computing the average daily attendance of the school district in which the teacher teaches, and the State Board of Education is hereby directed to revoke the certificate of any superintendent of schools who knowingly permits or requires any teacher to falsify such attendance records.

It is argued that the statute directs the State Board to revoke a superintendent’s certificate only when he permits or requires a teacher to falsify an attendance record, not when he falsifies the record himself.

We are not persuaded by this argument. Attendance records are ordinarily kept by teachers or other employees, not by the superintendent. The legislature expressed its intention to prohibit falsification of the records by punishing teachers who falsify them and superintendents who permit or require teachers to do so. Even though the statute is penal, it is a civil measure, not a criminal one. We must not construe it so narrowly as to exclude cases which the statutory language, in its ordinary acceptation, would embrace. St. Louis I.M. & S. Ry. v. Waldrop, 93 Ark. 42, 123 S.W. 778 (1909). In the case at bar the circuit judge was right in his understanding of the legislative purpose:

The obvious purpose of the Act in question in this case is to prevent the falsification of attendance records to the State. The purpose of the Act was not to prevent superintendents from directing teachers to falsify records, but to prevent anyone in authority including the superintendent from falsifying records to the State.

We adopt his reasoning and affirm his judgment.

Affirmed.