text:
    William P. LUNDAY, Charles A. LUNDAY, Jr. v. Fred TOENEBOEHN & Lee TOENEBOEHN
    73-83
    499 S.W. 2d 602
    Opinion delivered October 1, 1973

      Kenneth R. Smith, for appellants.

      Buford M. Gardner, Jr., for appellees.
   Conley Byrd, Justice.

Appellants William P. Lun-day and Charles A. Lunday, Jr. brought this action to determine what interest Mrs. Charles A. Lunday, Sr. was claiming in the property. After appellees Fred Toene-boehn and wife intervened they amended the complaint, to set aside, as a forgery, a deed allegedly executed by their Father Charles A. Lunday, Sr. and Bessie B. Lunday, his wife to Fred E. Toeneboehn and Lee Toeneboehn. To reverse the decree in favor of the Toeneboehns, appellants contend that the findings of the trial court are against a clear preponderance of the evidence.

The proof shows that Charles A. Lunday, Sr. had suffered some strokes. He married Bessie B. Lunday on February 14, 1970, and died on November 11, 1970. Sometime in September Mr. Lunday and Mr. Toeneboehn went to the office of appellants’ counsel for the purpose of conveying the lands here involved. At that time Mr. Lunday seemed to think he was the sole owner and intended to sell the whole subdivision for $10,000. Appellants’ counsel at that time informed Mr. Lunday that he was only a joint tenant with his son Charles A. Lunday, Jr. As a result of that conversation the lawyer prepared two deeds, one for the son and his wife and one for Mr. and Mrs. Lunday. On September 21st the deed in question was allegedly executed and delivered. However, subsequent thereto and before he went to the hospital and suffered his stroke on September 27th, Mr. Lunday moved his mobile home to the lands with the intention of making it his home. Mr. Lunday did not recover consciousness after his stroke which occurred shordy after he entered the hospital.

With reference to the transaction at Toeneboehn’s house, Bessie B. Lunday testified that she and Mr. Lun-day went to Toeneboehn’s house in an automobile driven by Mr. Lunday. She says that while there she saw Mr. Lunday sign the deed and a receipt for $5,000 which she saw Mr. Toeneboehn pay to Mr. Lunday. Thereafter, they went to the notary’s office where the deed was acknowledged. She also identified a number of checks signed by Mr. Lunday, some as late as June 24, 1970. After testifying that she saw Mr. Toeneboehn pay the $5,000 to Mr. Lunday and that she did not know what Mr. Lunday did with the money, the following occurred:

“THE COURT: Well, what did he do with it there in your presence:
A. I don’t know what happened, I still don’t know. He went into the hospital on a Monday and I still don’t know where the money went.
THE COURT: You were at the Toeneboehn’s home when the money was paid and the deed was made?
A. Yes, sir.
THE COURT: How did you travel to the Toene-boehn’s home?
A. How did we go there — in Charley Lunday’s car.
THE COURT: Who drove it?
A. He did.
THE COURT: Did you see whether he put it in his pocket or just what?
A. I don’t know what he did with it. I never seen it.
THE COURT: You never did see the money?
A. I never seen what he did with it.
THE COURT: Just tell the Court what you did see happen with reference to the money, who handed it to him?
A. Fred handed it to him.
THE COURT: Right there in your presence?
A. That is right.
The COURT: What did you see then happened to it?
A. I never seen anything happen to it.
THE COURT: Did he go around holding the money in his hands the rest of the day?
A. I don’t know.
THE COURT: You never did see — did you black out then?
A. I guess I did.
THE COURT: How did you get back home?
A. I went in the car.
THE COURT: Who drove it?
A. He did.
THE COURT: Did he have the money in his hands then?
A. I never seen what he had — what he did with the money.
THE COURT: You never did see what he did with the money?
A. No.”

With reference to her rights in the property after the conveyance to Toeneboehn the record shows the following:

“Q. Do you and Mr. Toeneboehn have some sort of an arrangement or agreement on this property?
A. Do we?
Q. Yes.
A. Well, not that I know of. He said it would be alright for me to stay there, have my trailer there.
Q. You don’t have any agreement with him concerning the lot or part of part of this property?
A. Well, he didn’t know for sure.
Q. Does it depend upon what happens, whether he gets the property?
A. That is right, I guess that is so. If he doesn’t get it, I don’t stay, I guess.
Q. But if he does get it, you get to stay there?
A. I think so.”

Fred Toeneboehn testified that he saw Charles Lun-day, Sr. sign the deed in his home; that they then went to the Kansas Savings and Loan where Mr. and Mrs. Lunday acknowledged the deed, and the receipt for the $5,000 was typed by a girl in the bank; and that upon the return to his home he paid the $5,000 in cash, and Mr. and Mrs. Lunday signed the receipt. Notwithstanding, that he says he paid $5,000 for the deed he testified that he only placed revenue stamps thereon for a $1,500 consideration.

James L. Lewis, a questioned document examiner, testified that after a comparison of the name signed to the deed and the receipt with acknowledged signatures of Mr. Lunday, the alleged signatures on the deed and receipt were a forgery.

Myra B. Gross, a Notary Public of Wyandotte County, in the State of Kansas, stated that she was not acquainted with Mr. and Mrs. Charles A. Lunday, Sr. prior to the time she took the acknowledgment. Her testimony as to what occurred at that time is as follows:

“On or about September 21, 1970, Mr. Kerr, President, Investors Mortgage Bankers, Inc. called me to his desk where Mr. Fred Toeneboehn was present, and I was introduced to Mr. and Mrs. Charles Lunday. Mr. Kerr informed me that the Lundays were selling a parcel of real estate to Mr. and Mrs. Fred Toeneboehn with a prepared deed bearing signatures of Charles Lunday, Sr. and Bessie Maze Lunday. Mr. Kerr advised the parties that the deed should not have been signed except in our presence and questioned each of the Lundays if their signature appearing on the deed was affixed by them and each of them stated that they had signed the deed. Upon their statement before Mr. Kerr, Mr. Toeneboehn, and me, that their signatures were genuine, the Notary Seal was affixed.’ ’

Robert S. Kerr, President, Investors Mortgage Bankers, Inc., Roeland Park, Kansas, after testifying that Toeneboehn had, before Sept. 21, 1970, consulted with him relative to the procedure for transferring title to property, stated that he was not acquainted with Mr. and Mrs. Charles A. Lunday, Sr. prior to the transaction. He then stated:

“On or about September 21, 1970, Mr. Toeneboehn and the Lundays appeared in my office and presented a deed to a parcel of land which was completed to the inclusion of signatures. Since signatures were already affixed, I called Mrs. Myra Gross, a Notary Public in my office, to my desk, and in her presence, asked the Lundays, individually, if the signature appearing on the deed was that placed there by each of them, and in both instances the reply was affirmative.
With both parties appearing to be in full awareness that they were transferring the title to property to the Toeneboehns and attesting to the genuineness of their signatures, the Notary Seal was affixed.”

Upon the testimony and the exhibits in the record we can only conclude that the signatures of Charles A. Lunday, Sr. to the deed and the receipt are a forgery. In fact it is rather obvious. The trial court intimated as much but seemed to think that appellants had not sustained their burden of proving that no consideration was paid and that the acknowledgment before the notary was a ratification of the signature. It was here that the chancellor fell into error. In the first place the notary only stated that Toeneboehn told her that the persons who acknowledged the deeds were Mr. and Mrs. Lunday. In the next place the learned chancellor failed to apply the law of fabricated evidence to the record before him.

It is pointed out by the authorities that the fabrication of evidence raises a strong presumption against those who have recourse to such practices. See Winchell, et al v. Edwards, et al, 57 Ill. 41 (1870), and Silva v. Northern California Power Co., 32 Cal. App. 139, 162 P. 412 (1916).

The credibility of both Toeneboehn and Mrs. Lunday is subject to suspicion since they testified positively that Mr. Lunday signed both the deed and the receipt, and a great preponderance of the evidence shows both instruments to be forgeries. Thus, when the record is considered under the fabrication of evidence rule, we find that a preponderance of the evidence shows that the deed should be set aside for forgery.

Reversed and remanded.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Hazel MORGAN v. STATE of Arkansas
    CR 73-78
    500 S.W. 2d 83
    Opinion delivered October 1, 1973
    [Rehearing denied November 5, 1973.]

      Harold L. Hall, for appellant.

      Jim Guy Tucker, Atty. Gen. by O. H. Hargraves, Deptuty Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Hazel Morgan was convicted by a jury of the crime of pandering, Ark. Stat. Ann. § 41-3208 (Repl. 1964), and sentenced to five years in the State Department of Corrections.

1. Carolyn Garcia testified: that she was encouraged to work as a prostitute for appellant on appellant’s premises; that she was thirty years of age and had been married five times; that although she had never before been a prostitute she worked for appellant at appellant’s premises for four hours on a Monday and four hours on a Tuesday on a sixty-forty split and earned one hundred dollars each day.

Three other women testified that they worked as a prostitute for appellant at the same place and about the same time.

We hold this evidence to be sufficient to sustain the charge of procuring or enticing a female to become a prostitute.

2. We find no merit to the contention that the trial court erred in permitting the other women to testify that they worked as a prostitute at the same time and place. Evidence to show -that appellant constantly employed other women as prostitutes was admissible to show a scheme or course of conduct. See Boyle v. State, 110 Ark. 318, 161 S.W. 1049 (1913).

3. Appellant contends that the alternative mode and means of committing the offense of pandering cannot be intermingled to arrive at an alternative way of violating the statute. The contention is without merit for in Malone v. State, 202 Ark. 796, 152 S.W. 2d 1019 (1941), it was pointed out that after charging the offense it is permissible to describe in the alternative the manner in which the female was procured, persuaded or enticed to become a prostitute. Here the matter was narrowed by a bill of particulars to charging appellant with procuring Carolyn Garcia to become a prostitute.

4. Appellant here argues that the court erred in giving State’s Instruction No. 1 because it does not fully define pandering and does not state that the jury must find that appellant induced Carolyn Garcia to become a prostitute. We find no merit in the contentions. In the first place the objections now stated were not raised in the trial court. In the next place the instruction does properly define the term pandering in terms of the statute, and the other instructions pointed out that before the jury could find the defendant guilty they had to find that she induced Carolyn Garcia to become a prostitute.

5. We find no merit in the contention that the court in giving its instructions erred in using the phrase “procuring of any female for the purpose of prostitution” instead of using the phrase “inducing the prosecuting witness to become a prostitute.”

Affirmed.


text:
    STATE of Arkansas v. Jerry ROBERTS
    CR 73-98
    499 S.W. 2d 600
    Opinion delivered October 1, 1973

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellant.
    M. /. Probst, Baker ir Probst, P.A., for appellee.
   Conley Byrd, Justice.

Informations were filed against appellee Jerry Roberts charging him with six violations of the State Credit Card Crime Act, Ark. Stat. Ann. § 41-1977 (Supp. 1971). Each information was filed in the name of Alex Streett, Prosecuting Attorney, by Francis T. Donovan, Deputy Prosecuting Attorney. After the jury was impaneled, appellee moved to dismiss the charges against him because Francis T. Donovan had not been duly appointed as a deputy prosecuting attorney pursuant to Ark. Stat. Ann. § 24-119 (Repl. 1962). The trial court granted the motion and the State has appealed. For reversal the State in its brief contends that the de facto status of Deputy Prosecuting Attorney Francis T. Donovan was sufficient to sustain the validity of the informations filed.

Mr. Donovan appeared at oral argument and attempted to raise a constitutional issue and to contend that he was a deputy de jure. Because such arguments had not been made in the briefs and because appellee was not necessarily in a position to respond, as is our practice, we did not permit the points to be raised or argued. Since such issues may be raised in an action to which Mr. Donovan is a party, nothing herein stated is to be considered as expressing our opinion on those issues.

Appellee relies upon State v. Eason and Fletcher, 200 Ark. 1112, 143 S.W. 2d 22 (1940), to support the proposition that he was entitled to raise the issue as to Donovan’s qualification.

The record shows that Alex Streett was elected as prosecuting attorney and took office on January 1, 1971, and that he was elected in 1972, to a second two year term and took the oath of office on January 1, 1973. Pursuant to Ark. Stat. Ann. § 24-119 (Repl. 1962), Mr. Donovan was appointed as a deputy prosecuting attorney on January 1, 1971, and was confirmed by the circuit court. No new appointment by the prosecuting attorney nor confirmation by the court was made for Mr. Donovan for the term commencing January 1, 1973, but he continued to act as such deputy and to try cases before the circuit court until the present objection was raised by appellee on May 10, 1973. Mr. Streett appeared and confirmed that Mr. Donovan was his deputy. He also testified that he had not made new appointments for his deputies serving in other counties.

We have a number of cases involving de facto officers and the right of a litigant to collaterally attack the validity of proceedings by de facto officers. See Faucette, Mayor v. Gerlach, 132 Ark. 58, 200 S.W. 279 (1918); Keith v. State, 49 Ark. 439, 5 S.W. 880 (1887), and Kaufman & Co. v. Stone, Admin., 25 Ark. 336 (1869). The de facto rule and the public policy supporting the same are set out in Faucette, supra, as follows:

“ ‘An officer de facto is one who by some color of right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact. His color of right may come from an election or appointment made by some officer or body having colorable but no actual right to make it; or made in such disregard of legal requirements as to be ineffectual in law; or made to fill the place of an officer illegally removed; or made in favor of a party not having the legal qualifications; or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompanied by such circumstances of official reputations as are calculated to induce people, without inquiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be.’ Cooley on Constitutional Limitations (7 ed.), pages 897 and 898. Continuing, the learned author said: ‘But for the sake of order and regularity, and to prevent confusion in the conduct of public business and insecurity of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally.’ ”

Keith, supra, and Kaufman & Co., supra, support the proposition that the title to an office can only be tried in a direct proceeding to which the officer is a party. In the cases of Greenwood v. State, 17 Ark. 332 (1856), and Miller v. Callaway, 32 Ark. 666 (1878), the officers were direct parties to the proceedings.

The confusion that follows when courts fail to recognize the de facto officer doctrine can be seen by the results that flowed from our decisions in Howell v. Howell and Stevens v. Stevens, 213 Ark. 298, 208 S.W. 2d 22 (1948). See also Pope v. Pope, 213 Ark. 321, 210 S.W. 2d 319 (1948).

In Smith v. Landsden, 212 Tenn. 543, 370 S.W. 2d 557 (1963), the Supreme Court of Tennessee in determining what constituted a “collateral attack” said:

“From the above quotations can be gleaned several guidelines for determining whether a particular attack upon the title of a public official is ‘collateral.’ By the very definition of the word if the attack is secondary, subsidiary, subordinate, i.e., related to the main matter under consideration but not strictly a part thereof, the attack is indirect and collateral. If the official’s title is questioned in a proceeding to which he is not a party or which was not instituted specifically to determine the validity of his title the attack is collateral. If the title of the officer is questioned in a proceeding in which he is a party merely because he is acting in his official capacity the attack is collateral. Lastly if the attack is made because it is necessary to show the officer’s want of title to lay a basis for some other relief the attack is collateral....”

When the record before us here is considered in the light of the foregoing authorities, it appears that Mr. Donovan, through the acquiescence of the circuit judge, was at least a de facto deputy prosecuting attorney. Furthermore, the attack here made upon his authority to act would constitute a collateral attack and as such it cannot be made under the law. For cases from other jurisdictions denying an attack upon the status of a deputy prosecuting attorney under similar circumstances, see Walker v. State, 146 Tex. Crim. 138, 171 S.W. 2d 887 (1943), and State v. Nevius, 77 Ohio Ct. App. 161, 66 N.E. 2d 243 (1945).

In State v. Eason and Fletcher, supra, relied upon by appellee neither the de facto status of the officer nor the collateral attack issue was considered. Consequently, we do not consider the language thereof controlling in this case.

For the reasons herein stated the order of dismissal is reversed and remanded.

      No objection was raised to the time the motion was made. See Ark. Stat. Ann. § 43-1206 (Repl. 1964) and Johnson v. State, 223 Ark. 929, 270 S.W. 2d 907 (1954).

      The trial Judge said he would not approve the appointment of Mr. Donovan, but see State ex rel. Pilkinton, Prosecuting Attorney v. Bush, Judge, 211 Ark. 28, 198 S.W. 2d 1004 (1947), holding that the judge’s actions are subject to review.

      The record does not explain why Mr. Streett did not sign the informations and proceed with the trial.


author: Frank Holt, Justice.

text:
    Claude Earl FLAHERTY and Gene WHIPPLE v. STATE of Arkansas
    CR 73-70
    500 S.W. 2d 87
    Opinion delivered October 1, 1973
    [Rehearing denied November 9, 1973.]

      Franklin Wilder, for appellants.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellants were charged and convicted of operating a gambling house in violation of Ark. Stat. Ann. § 41-2001 (Repl. 1964). The jury assessed a one year penitentiary sentence for each of them. For reversal of the judgment, the appellants first contend there was no gambling conducted at appellant Flaherty’s home and, therefore, the evidence was insufficient to support a conviction for operating a gambling house.

The state adduced evidence that for approximately three weeks the police had observed Whipple driving Flaherty’s car during which tíme he was picking up and delivering parlay cards. The police, with a search warrant, went to Flaherty’s residence where they were invited in. The search warrant was exhibited and both appellants, the only occupants, were placed under arrest. The officers then discovered parlay cards, betting slips, racing forms, and a stack of football schedule sheets. For approximately one hour, an officer answered and tape recorded all incoming telephone calls. These calls were mostly from people placing bets on football games and horse racing. The callers would identify themselves either by first name or initials. Some would ask to speak to Earl (appellant Flaherty) and some would ask for Whip (appellant Whipple). During this hour two individuals appeared at the residence and upon police inquiry it was determined they had in their possession a weekly football schedule. As a result of the raid the police confiscated and introduced into evidence one telephone listed in Flaherty’s name and another in a relative’s name; a small indexed code book containing unidentified numbers; envelopes containing a large quantity of what appeared to be betting slips with “numbers” on them; numerous parlay cards and parlay card stubs; a roll of money wrapped with a rubber band ($1,174); a sack containing 121 weekly current football schedule sheets; racing forms; and an envelope with telephone bills. The appellants did not testify.

On appeal we review that evidence which is most favorable to the appellee with all reasonable inferences deducible therefrom and we must affirm if there is any substantial evidence to support the finding of the trier of the facts. Miller v. State, 253 Ark. 1060, 490 S.W. 2d 445 (1973). In the case at bar, we are of the view that the evidence was amply substantial to sustain the findings of the jury.

The argument is further made that Flaherty’s home could not constitute a gambling house since he had lived for many years in a nice residential area and his neighbors testified they had observed no gambling activities about his premises. This was a fact question to be considered by the jury. Furthermore, in Liberto & Mothershed v. State, 248 Ark. 350, 451 S.W. 2d 464 (1970), we said “the keeping of a gambling house is not limited to a place where those engaged in gambling find shelter.”

Appellant next asserts that the admission of. the telephone recordings into evidence was error. The police officer placed a suction cup, dr recording device, on the mouthpiece of the telephone receiver. Whenever the phone rang the conversation was recorded. The portable cassette tape recorder was admitted into evidence and the recorded conversations, between the officer and the callers placing bets, were heard by the jury. The appellants contend that the recordings were inadmissible hearsay and in violation of the Federal Communications Act, 47 U.S.C. § 605, and further the introduction of the evidence denied appellants their Sixth Amendment right to confront witnesses against them. We cannot agree.

In Liberto & Mothershed v. State, supra, the officer answered incoming telephone callers placing bets. We approved the admissibility of the officer’s testimony as being permissible to show that the out-of-court statement “#*#is not hearsay if it is given in evidence for the purpose of proving that the statement was made, providing that the purpose is otherwise relevant in the case at trial. The statements here given were obviously relevant to show the use of the telephone numbers involved.” Similarly, in the case at bar, the officer could have testified as to the conversations he heard since such testimony is not introduced to support the truth of the matter asserted, but only to show that such statements were made. On the same basis, the tape recorded conversations were admissible.

Appellants also assert that the tape recording was inadmissible as being in violation of Federal Communications Act, 47 U.S.C. § 605. We examine this contention in the light of 18 U.S.C. § 2510, et. seq., which is the wire interception provision of the Omnibus Crime Control and Safe Streets Act. That section is the 1968 amendment to 47 U.S.C. § 605. In the case at bar, we consider § 2510, et. seq., controlling. The question then becomes whether the officer at the Flaherty residence improperly “intercepted” the communication in violation of 18 U.S.C. § 2511, which would render the contents of the communication inadmissible in a court of law as required by 18 U.S.C. §2515. “Intercept” is defined in § 2510 as meaning the “aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.” The authorities are to the effect that testimony repeating the contents of police answered telephone calls during a valid search is admissible in evidence pursuant to either § 605 or § 2511.

In United States v. Pasha, 332 F. 2d 193 (7th Cir. 1964), a government agent was assigned to answer calls to an apartment during the search. The contents of those calls were testified to during defendant’s prosecution for failure to pay an occupational tax on gambling. The testimony was held relevant, not hearsay, and admissible as circumstantial evidence of the type of operations conducted on the premises. Further, the officer’s impersonation of defendant was held not to constitute an “interception” under 47 U.S.C. § 605. See, also, Rathbun v. United States, 355 U.S. 107, 78 S. Ct. 161, 2 L. Ed. 2d 134 (1957).

The 1968 enactment of 18 U.S.C. § 2511 (2) (c) provides:

“It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.”

As we construe this section, it cannot be said that the officer in the case at bar illegally intercepted the telephone communications.

A most recent case on this subject is State v. Vizzini, 115 N.J. Super. 97, 278 A. 2d 235 (1971). There the defendant was convicted of permitting his premises to be used to conduct a lottery. During a valid search of defendant’s home an induction coil (like the one used in the case at bar) was placed on the phone to record incoming calls. The callers placed bets. The defendant objected, as here, to the introduction of the tape at trial. The New Jersey court held that no interception had taken place, making the same distinction that was utilized in interpreting the old act 47 U.S.C. § 605, supra:

“Castellano’s [the police officer] acquisition of the contents of the telephonic communications resulted from his answering the telephone when it rang, not ‘through the use of any electronic, mechanical or other device.’
“In answering the telephone when it rang, he did not ‘intercept’ the telephone calls in violation of the federal act” (See Rathbun v. United States, 355 U.S. 107, 78 S. Ct. 161, 2 L. Ed. 2d 134 (1957).)

Similarly, in the case at bar, the taped recordings were admissible since the incoming calls were not intercepted and recorded in violation of any federal act. We need not deal in fine distinctions as to the meaning of the word “intercept,” since 18 U.S.C. 2511 (2) (c), supra, clearly states that no illegal interception takes place when an officer is a party to the communication acting under color of law. The device on the telephone receiver recorded conversations the officer legally heard and could have testified to from memory.

Nor can we agree with appellants’ argument that presenting the taped conversations to the jury was a violation of their Sixth Amendment right to confront the witnesses against them. The officer, who took the incoming calls and recorded them, testified and was subjected to cross-examination. As previously discussed the tapes reproduced the voices of those placing bets and were admissible to show that such statements (calls) were made. We perceive no violation of the confrontation clause.

Appellants further contend that the trial court erred in refusing their instruction which would allow the jury to consider a conviction under Ark. Stat. Ann. § 41-2003 (Repl. 1964) (misdemeanor statute for keeping a gaming device). Appellants assert that they were entitled to this instruction because keeping a gaming device is a lesser included offense within the alleged offense of operating a gambling house.

The intricacies of lesser offenses in Arkansas were recently explored at length in Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972), and need not be repeated here. There we said that in order to find error in the refusal of the trial court to give a requested lesser offense instruction it must appear that the offense in the requested instruction was one necessarily contained within the higher offense and the evidence showed the existence of all the elements of the lesser offense. So in Catón, supra, it was not error to refuse a shoplifting instruction where the information did not charge that the merchandise taken was offered for sale by a store or other mercantile establishment which are elements required by Ark. Stat. Ann. § 41-3939 (Repl. 1964). In Caton, supra, we further said:

“Unless the lower offense is necessarily included within the higher, there is no reason why the prosecuting attorney or the grand jury should not have the option of charging the more serious offense and ignoring the latter.”

In the instant case defendants were charged with operating a gambling house. The mere possession of gambling devices is not necessarily included within that offense. One could be criminally liable under the statute for allowing gambling in his house but have no gambling devices there (for example, matching coins, tossing pennies, betting on football games or horse races). Even if we were to find that the evidence seized here constituted gambling devices, since the information did not so charge and since the misdemeanor statute is not necessarily included in the felony statute, we hold the trial court did not err in refusing the instruction although it would not have constituted error to give it.

As was noted similarly in Caton, supra, we are not saying that there cannot be a conviction for possession of gambling devices based upon a charge of operating a gambling house. Such a conviction might be possible if the charge alleges the elements of the lesser offense and the evidence would support the conviction. Furthermore, a defendant can always request a bill of particulars to determine the specific acts alleged to constitute the particular offense. Ark. Stat. Ann. § 45-1006 and § 43-804 (Repl. 1964).

Appellants also contend that the trial court erred in refusing their instruction to the effect that every man’s house or place of residence is deemed in law as being his castle. Ark. Stat. Ann. § 41-2233 (Repl. 1964). This statute appears in the homicide section of Title 41 and is no doubt intended to emphasize the sanctity of the home in relation to self-defense and the retreat doctrine. The argument appellants present is novel. However, it is irrelevant because the conviction is based on substantial evidence which was lawfully seized. The trial court is not required to give abstract instructions which are not germane to a fact issue. Stevens v. State, 246 Ark. 1200, 441 S.W. 2d 451 (1969). Neither can we agree that appellants’ counsel was erroneously stopped by the court from presenting the argument to the jury that one’s home is his castle with the right to have and read racing forms since the record does not include that part of the proceedings or any portion of the arguments to the jury.

Finally, appellants assert that the evidence taken from Flaherty’s home was based upon an illegal search. The search warrant was issued by the trial judge based upon an affidavit of a policeman and one by a deputy prosecuting attorney. At a hearing on a motion to suppress, the appellants adduced evidence from some witnesses who contradicted the statements made by the affiants. One of the affiants, the deputy prosecuting attorney, was called as a witness for the appellants. The deputy had stated in his affidavit that Flaherty was a known gambler. He testified at the hearing that to his knowledge neither appellant had ever been convicted of gambling and he had no personal knowledge of the correctness of the telephone bills attached to his affidavit. The appellee presented no witnesses and stood upon the affidavits. Appellants make the argument that there was no probable cause for the issuance of the search warrant. We cannot agree.

The officer’s affidavit was to the effect that he and another officer had made an “extensive investigation of gambling operations” locally; he had information that a local printing company “printed parlay cards which were being used for betting on college and professional football games;” he had information that Fla-herty had 1,250 pa, ’ ay cards printed weekly by the local printer and Whipple “was a runner for Flaherty;” Whipple was observed leaving Flaherty’s residence; Fla-herty’s car, driven by Whipple, had been followed and observed by him and another officer, stopping at Vctious places picking up and leaving parlay cards; and Whipple was seen by him leaving the printing company with parlay cards in his hand. The deputy prosecuting attorney’s affidavit was to the effect that during his four years as deputy he had “worked on several cases involving gambling activities” locally; the police had given him continuing reports about their investigation of local gambling activities; appellant Flaherty and his nephew, Billy Reeder, were co-defendants in 1969 on a charge of operating a gambling house; Flaherty was acquitted and Reeder was convicted, receiving a suspended sentence which was later revoked because of his continued gambling activities; that during the revocation hearing, there was evidence Flaherty and Reeder had maintained frequent telephone contacts with each other by intra-city or long distance calls; a charge of operating a gambling house against Flaherty in an adjoining county was dismissed because of a defective search warrant; and the current telephone records of Flaherty and Reeder reflected approximately 150 intra-city or long distance calls between them for about three months prior to the raid of Flaherty’s premises. These current phone records were made a part of the deputy prosecutor’s affidavit.

An affidavit based upon hearsay information can be a basis for the issuance of a valid search warrant. Jones v. United States, 362 U.S. 257, 80 S. Ct. 725 (1960). There the court said:

“We have decided that, as hearsay alone does not render an affidavit insufficient **** so long as there was a substantial basis for crediting the hearsay.”

To the same effect is Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969); U. S. v. McClard, 333 F. Supp 158 (E. D. Ark. 1971); Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670 (1970).

The authorities, as succinctly reviewed in McClard, supra, are also to the effect that the affidavit for 'a search warrant is sufficient if it relates facts which are sufficient to persuade the examining court, acting as a reasonable person, to believe probable cause exists that a law violation is occurring on the premises to be searched. The' affidavit need not assert facts which establish conclusively or beyond a reasonable doubt that a violation of the law exists on the premises. Probable cause exists where knowledge of facts or circumstances is. imparted to the examining court sufficient to persuade an ordinarily prudent person to actually believe in good faith, as opposed to mere suspicion, that the facts asserted in the affidavit are true. The examining court has the right to give at least some credence and weight to an experienced law enforcement officer because of his expertise. The judicial determination by the examining court that probable cause exists for the issuance of a search warrant is entitled to considerable deference and weight by a reviewing court.

In the case at bar, the affidavits were based upon information acquired during an extensive and continuous investigation as well as upon personal observations of experienced law enforcement officials. We cannot agree that contradictory evidence adduced by appellants at the hearing on the motion to suppress vitiated the search warrant. See, Liberto v. State, supra. We hold that the affidavits constituted a substantial basis to support the examining court’s judicial determination that probable cause existed for the issuance of the search warrant.

Finding no error, the judgment is affirmed.

Affirmed.


text:
    Geraldine INMAN v. STATE of Arkansas
    CR 73-79
    500 S.W. 2d 82
    Opinion delivered October 1, 1973
    [Rehearing denied November 5, 1973.]

      Harold L. Hall, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   Frank Holt, Justice.

The jury convicted appellant of pandering [Ark. Stat. Ann. § 41-3208 (Repl. 1964)] and assessed her punishment at four years in the State Department of Corrections. Appellant first contends for reversal of the judgment that the evidence is insufficient to support the verdict.

The state’s principal witness testified that she was a prostitute and had previously worked for the appellant. This witness stated that she called the appellant who told her that “everybody had been asking about me. . .” and “she asked me if I wanted to come back to work and I told her yes.” The appellant told her she could make good money if she would work again. She then worked for the appellant as a prostitute at appellant’s house and houseboat moored at the Arkansas Yacht Club. The appellant set the terms at a 60/40 fee splitting arrangement and also determined the price to be charged to the customers. In addition to providing the premises, the appellant furnished certain items, transportation back and forth from her house to her houseboat, and told the witness when to call the next day. Two other witnesses, who admitted they were prostitutes before working for appellant, testified that they also had worked for the appellant during the same year at her house and houseboat.

This evidence is amply substantial to support the jury’s findings that the appellant procured, enticed and encouraged a female to remain a prostitute in violation of § 41-3208. By the comprehensive provisions of this statute, it is immaterial whether the female is virtuous or whether she consented to become or remain a prostitute. Boyle v. State, 110 Ark. 318, 161 S.W. 1049 (1913).

Other contentions for reversal were considered and determined adversely today in Morgan v. State, 255 Ark. 181, 500 S.W. 2d 83.

Affirmed.

Byrd, j., not participating.


author: Garleton Harris, Chief Justice.

text:
    Bobby LOWERY v. WEST MEMPHIS TRANSPORTATION CO. and Henry ROBERTSON
    73-98
    500 S.W. 2d 375
    Opinion delivered October 8, 1973
    [Rehearing denied November 13, 1973.]

      Hodges, Hodges if Hodges, for appellant.

      Hale, Fogleman if Rogers and Pickens, Boyce, Mc-Larty if Watson by James A. McLarty, for appellees.
   Garleton Harris, Chief Justice.

Bobby Lowery instituted suit in the Jackson County Circuit Court, alleging personal injuries by reason of a car - bus collision which occurred on September 8, 1971. Appellees, West Memphis Transportation Company and Henry Robertson, filed a general denial on November 26, 1971, and on January 18, 1972, appellees filed a motion asking that the complaint be dismissed because of a lack of verification and alleging improper venue on the basis of the contention that Lowery was not a resident of Jackson County, Arkansas, but rather a resident of Florida; that the commencement of the action in such county constituted a fraud upon the court. Appellant responded, denying the allegations and asserting that the deposition of Lowery reflected that he was a resident of Jackson County on the day of the accident, and that the venue was proper. It was, further asserted that any defect in venue had been waived by the filing of an answer and the taking of the discovery deposition of Lowery by the attorney for the appellees. In this pleading, Lowery also offered to make the verification “pursuant to an order of this court.” On February 7, 1972, the court entered its order denying the motion to dismiss, but not ordering verification of the complaint. On September 25, 1972, a pre-trial conference was held at which time the court propounded the question, “Are there any jurisdictional questions?” Counsel for appellant replied in the negative, stating, “The pleadings are settled and the issues joined.” No response to this question was made by counsel for appellees and subsequently during the conference, both sides asked for a continuance. On November 21, 1972, at another pretrial conference, appellee, West Memphis Transportation Company, moved to dismiss its complaint against two third parties who had been brought into the case as third party defendants in April, 1972, and also moved to amend its previously filed answer so as to reflect appellees’ admission of liability for appellant’s damages resulting from the collision of September 8, 1971. The court granted both motions and the answer stood amended.

On February 15, 1975, the case was called for trial. Before proceeding into the courtroom, a motion in limine, made by appellant, was heard, and after discussion by the attorneys on each side, the motion was granted in part. Thereafter, a jury was selected and after being admonished, a ten minute recess was given to the jury and the court and parties returned to chambers where appellees moved the court, under the provisions of Ark. Stat. Ann. § 27-1109 (Repl. 1962) (no verification) to dismiss the complaint. Appellant again offered to verify, but after hearing argument of counsel, the court granted the motion, dismissed the complaint without prejudice, and dismissed the jury. From the order so entered, appellant brings this appeal. While four points are asserted for reversal, all are closely related, and will be discussed together in this opinion.

Ark. Stat. Ann. § 27-1105 (Repl. 1962) provides that “Every pleading must be subscribed by the party or his attorney, and the complaint, answer and reply must each be verified by the affidavit of the party to the effect that he believes the statements thereof to be true; ***.” Section 27-1109 provides that where complaints are filed without verification, as required by § 27-1105, the action shall not on that account be dismissed, if the verification “be made on or before the calling of the action for trial.”

Appellees assert that the question of verification is important because they contend that appellant is not a resident of this state, thus having no right to institute suit in Jackson County, and that his failure to swear to the allegations in the complaint, is accordingly most pertinent to that contention. We do not consider that argument appealing, since Lowery’s discovery deposition was taken by counsel for appellees on January 4, 1972, at which time counsel thoroughly questioned Lowery on various matters relating to residence, including where he was registered to vote at the last election, where he paid personal taxes, where various items of property are assessed, with whom he lived in Arkansas and Florida, and many other related matters. At the very outset of the deposition, the record recites that Lowery was “first duly sworn to tell the truth, the whole truth and nothing but the truth ***." Accordingly, if false statements were willfully made, and such statements established, this would tend to show fraud upon the court as much, or even more, than the allegations in the complaint, and if Lowery were mistaken as to what constituted residence under the statute, he still would not be guilty of deliberate falsification.

The verification certainly is not absolutely essential to the validity of the complaint, i.e., it does not deprive the court of jurisdiction, nor, under our prior interpretations of the statute, does the failure to verify require dismissal of the action. In Pinkert v. Reagan, 219 Ark. 822, 244 S.W. 2d 961, we pointed out that the purpose of the statute in requiring verification is to prevent a judgment from being taken on an unverified pleading alone, without any evidence being introduced. See, also Parker v. Nixon, 184 Ark. 1085, 44 S.W. 2d 1088. The case of Andrews v. Lauener, 229 Ark. 894, 318 S.W. 2d 805, involved the failure to verify an answer. (While the present action involves a complaint, the principle is the same for § 27-1105 requires verification for the complaint, answer, and reply.) We said:

"The appellants first argue that the court erred in refusing to strike the appellees’ answer. On December 11, 1957, appellant B. B. Andrews verified the appellánts’ complaint and on the next day the appellants filed a motion to strike the appellees’ answer because it was not verified. This motion was not presented to the court until the appellants had completed their proof and the appellees had moved for dismissal on February 4, 1958. At that time the court permitted appellee W. E. Lauener to verify the answer in open court. We find no error in this procedure.
“In construing Ark. Stats. 1947, Sec. 27-1105, pertaining to the verification of pleadings, we said in Bank of Dover v. Jones, 192 Ark. 740, 95 S.W. 2d 92, that the court did not abuse its discretion in permitting the defendant to verify her answer when it became apparent that the plaintiff sought to take advantage of her failure to do so.”

In M. W. Elkins & Co. v. Ashley, 195 Ark. 313, 112 S.W. 2d 627, appellant moved to dismiss the complaint because of the failure to verify, but we held the contention to be without merit, stating:

“Appellant’s motion to dismiss for failure to verify was not filed until January 18, 1937. The depositions of Ross Mathis and W. P. Dawson, to be read in evidence on behalf of appellees, were filed September 14, 1936. The depositen of M. W. Elkins, a witness for appellant, was taken on notice dated March 24, 1936, and was filed January 11, 1937. All of the testimony on each side had been taken and the depositions filed before appellant’s motion was made. If an oral motion were made prior to the time proof was taken, it is not shown by the bill of exceptions, and cannot be considered. It follows that, even if appellant’s contention as to the effect of § 1437 [identical with § 27-1105] could be maintained, the irregularity was waived by the proceedings taken.”

In the instant litigation, the discovery deposition of Bobby Lowery had been taken and filed, and interrogatories to appellant had been propounded, answered, and filed. The record reflects a notice to take depositions on December 1, 1972 of two other persons, but it is not clear whether these were actually taken. Of course, under the order entered by the court, all time spent in preparation of the case by the attorneys and the parties, as well as the time of the witnesses, has been for naught; likewise, the time spent by the court in holding pretrial conferences has been fruitless.

Appellees argue that the statute permitted appellant to verify his complaint at any time before the “calling of the action for trial”, and that accordingly, the court actually could not dismiss the complaint earlier. We are not impressed by this argument. When the first motion to dismiss was filed, the court certainly could have entered an order requiring the complaint to be verified before the case was called for trial; in fact, appellant offered to do so if the court so ordered. The record does not reflect why the court denied appellees’ motion at that time, but between that date, and the date of the dismissal (over a year), two pre-trial conferences had been held. At the first of these conferences, in reply to a question by the court, counsel for appellant replied that the pleadings were settled and the issues joined, and no disagreement with this statement was expressed by counsel for appellees. At the second pre-trial conference, appel-lees amended their answer to reflect an admission of liability for appellant’s damages. In other words, only the question of the extent and amount of appellant’s damages was to be heard. The resolving óf preliminary motions and the determination of issues are among the primary purposes of pre-trial conferences. Certainly, a view by appellant that verification was no longer an issue would be understandable. Though perhaps not intentional, it would somewhat appear that appellant was entrapped, since a second motion to dismiss was'not made until after the jury was selected; even then, appellant offered to verify.

Whether it be on the basis of a waiver of the verification by appellees, or inappropriate action by the trial court, we think, under the circumstances herein set out, that the court- erred in granting the motion, and that Lowery is entitled to reinstatement of his complaint.

Reversed.

Fogleman, J. not participating.

      Appellant also argues that under Ark. Stat. Ann. § 27-1111 (Repl. 1962), no verification of the complaint was required. That section reads as follows:

        “Verification by affidavit mentioned in the last section (§ 27-1105) shall not be required to the answer of a guardian (or committee) defending for an infant, or person of unsound mind, or imprisoned; nor in any case where the admission of the truth of the allegations of the complaint or answer might subject the party to a criminal or penal prosecution; nor to pleadings affecting injuries to person [our emphasis] or character; nor to complaints in actions founded on a note, bond, bill of exchange, mortgage or other written obligation of the defendant; nor to defense founded on the written obligation, release or written obligation of the plaintiff, unless the writing on which the action or defense is founded is lost, mutilated or destroyed.’’
      We do not pass upon this argument since it does not appear that it was presented to the trial court, and we have stated that we do not consider points not first presented below. White Company v. Bragg, 168 Ark. 670, 273 S.W. 7 (1925).


author: Carleton Harris, Chief Justice.

text:
    Jimmy Wayne COX v. STATE of Arkansas
    CR 73-86
    499 S.W. 2d 630
    Opinion delivered October 8, 1973

      Jimmy L. Féatherston, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Jimmy Wayne Cox, appellant herein, on September 22, 1972, entered a plea of not guilty to a charge of burglary and grand larceny; however, on October 3, 1972, Cox, being represented by a retained attorney, changed his plea, entering a plea of guilty to the offenses charged and with being an habitual criminal. The Pike County Circuit Court sentenced Cox to twenty-one years for burglary and twenty-one years for grand larceny, the sentences to run concurrently. Approximately two weeks later, appellant prayed for an appeal from the sentence imposed, this being denied by the circuit court because of the plea of guilty. In November and December, appellant filed petitions for a Writ of Habeas Corpus and for a hearing under Criminal Procedure Rule I, alleging that his guilty plea was entered under duress; that the State failed to show a prima facie cause for arresting him; that he had been arrested on a misdemeanor charge and evidence obtained from an illegal search of his automobile resulted in the felony charges. A hearing was granted, and conducted on January '30, 1973, petitioner being represented by coun>appointed counsel, the court pointing out, however, that it was only going to hear evidence on the allegation that the guilty plea was entered under duress. Evidence was taken and the petition was denied, and from the order denying relief, appellant brings this appeal.

Cox testified that he thought he would get a lighter sentence when he pleaded guilty, although he admitted that his attorney told him that he didn’t know what amount of time he would receive; he also stated that he “had no idea” what sentence he would receive. Subsequently, however, he stated that he had been informed on the same morning'of the sentencing that he was going to be sentenced to twenty-one years. =He also testified that he was placed under duress because he had learned that his brother, Jester Cox, would testify that he (Jester) had received the two guns, which had been stolen, from him (appellant), and he also stated that knowing that he would be sentenced as an habitúal criminal placed him under duress. His testimony relative to this last is rather jumbled and it is not at all clear how this charge placed him under duress to plead guilty. Cox admitted that he was told that he was entitled to a jury trial. To practically every question asked by the court as to the proceedings on the date the plea was entered, appellant would simply answer that he was under duress. Jester Cox testified that he too was charged with burglary and grand larceny, and had originally told officers that he bought the two guns from a man on the highway, but after being told that “wouldn’t work”, changed his statement and implicated his brother. He said that he had stated he received the guns from his brother, but that actually he bought them from a man in Oklahoma. Jester Cox had received a three year suspended sentence. Retained counsel for Jimmy Wayne testified that the latter was advised of all of his rights and that appellant had told him in the presence of his brother that he desired to change his plea to guilty.

The record of the proceedings makes it quite clear that Cox was advised by the trial court of his right to a trial by jury, was advised that he was entering a plea of guilty to burglary and grand larceny as an habitual criminal, with the court specifically mentioning that it was alleged that he previously had been convicted of four or more felonies.

We very quickly hold that there is no showing that appellant entered his plea under duress. There is no proof, nor allegation, that he was “pressured” into entering the plea by any sheriff or policeman, member of the prosecuting attorney’s office, his own counsel, or the court. It is not asserted that he was under duress from his brother, or any other individual. It simply appears that Jimmy Wayne decided the advisable thing to do was to plead guilty. Of course, there are many reasons why one may decide to plead guilty; he might learn that several persons that he had not known about had witnessed the commission of the felony; he might discover, contrary to his original belief, that he could be positively identified as a participant in the crime, etc. The fact that another participant in the crime, even a brother, decides to change a plea of not guilty to guilty certainly does not establish duress, although it may well influence a defendant to change his plea. After all, it is to be doubted that any defendant would enter a plea of guilty if he thought he would be acquitted by a jury, or even if he thought he would receive a lesser punishment. So — it- may well be that the brother’s statement that he had received the guns from appellant, and the fact that he was charged with being an habitual offender, could have carried some weight in appellant’s deliberations of whether a plea should be entered — but, as stated, there is not a line of evidence that anyone pressured Jimmy Wayne Cox into entering a plea; it seems entirely clear that this was his own decision.

As to his argument that an illegal search was made of his car, we have held repeatedly that a plea of guilty, which was not coerced or obtained under duress, waived any defenses that might have been interposed on trial. In Rimmer v. State, 251 Ark. 444, 472 S.W. 2d 939, this court said:

“The plea of guilty, which is not shown to have been coerced, had the effect of waiving defenses that might otherwise have been interposed. McMann v. Richardson, 397 U.S. 759 (1970); Brady v. United States, 397 U.S. 742 (1970).”

See also Treat v. State, 253 Ark. 367, 486 S.W. 2d 16, where an argument somewhat similar to the one here presented was mentioned by this court. We said:

“Finally, it is contended that the court erred in not setting aside the plea of guilty to the charge of kidnapping, it being argued that the negotiated plea of guilty to this offense was brought about by the untrue testimony of the prosecuting witness which had been responsible for his conviction of assault with intent to rape; in other words, if he had not been found guilty by the jury, he would not have entered a plea of guilty. We find no merit in this contention. The record reflects that no complaint was made by appellant concerning his representation and that the attorney who originally represented him explained thoroughly the effect of the plea of guilty to the charge; ##* though it has no bearing on the legal question involved, it is noted that it was ordered that the sentence given under the plea of guilty was to run concurrently with the sentence rendered in accordance with the jury verdict.”

It is next argued that there were only two lawful prior offenses alleged, and appellant was illegally sentenced under the Habitual Criminal Act. It is stated that Cox was first convicted as a juvenile, and this does not count as a felony conviction. This was a conviction on January 21, 1964, and the record shows that he entered a plea of guilty in the Pike County Circuit Court — and not in Juvenile Court. On April 7, 1965, there was another conviction for grand larceny, and there does not appear to be any question but that this constituted a felony conviction. On January 18, 1967, appellant entered a plea of guilty to three different counts of burglary, Cox being sentenced on each charge to a term of four years, sentences to run concurrently. The proof reflected that there were three distinct offenses, a burglary at O. D. Tipton’s Grocery at Umpire, Arkansas, a burglary at Joda’s at Nashville, Arkansas, and a burglary at Freel’s at Nashville, Arkansas. It is argued that the plea of January 18 should be treated as one conviction. We do not agree. While the point was not directly passed on in Thom, etc. v. State, 248 Ark. 180, 450 S.W. 2d 550, there was some discussion of the contention. We said:

“Here appellant argues that for purposes of imposing sentence under the habitual criminal statute, appellant should have been sentenced under sub-section 2 of Ark. Stat. Ann. § 45-2328 instead of sub-section 3. He then argues that we should adopt the reasoning of State v. Simpson, (Wash. 1929) 277 P. 998, which holds that a conviction under a habitual criminal statute on an information containing two or more counts arising out of acts committed simultaneously should amount only to one offense. The State on the other hand argues that we should follow those states holding to the contrary. Under the record here we find that we need not answer either argument because of the nature of the record.
“The information to which appellant pleaded guilty alleges, ‘(T)hat defendant was convicted of second degree burglary and sentenced to two to five years in 1962 in the State of Indiana; defendant was convicted of two counts of burglary and one count of grand larceny in Sebastian and Scott Counties in 1966 and was sentenced to three years.’ It is difficult for us to understand how a person could commit two burglaries simultaneously or commit two burglaries simultaneously in two different counties, even if we could construe the 1966 grand larceny charge as growing out of a simultaneous act committed in one of the burglaries.”

Here, to paraphrase, it is difficult for us to understand how a person could commit two burglaries simultaneously in two different towns, or of two different establishments in the same town. Our habitual criminal statute (Ark. Stat. Ann. § 43-2328 [Supp. 1971]) refers to “any person convicted of any offense” *** the “second offense” *** the “third offense” *** the “fourth or subseuqnet offense.” Certainly the burglaries at O. D. Tipton’s Grocery in Umpire, Arkansas, Joda’s at Nashville, Arkansas and Freel’s at Nashville, Arkansas are all three different burglaries, i.e., different offenses, and the plea of guilty to each one constituted conviction for a different offense. We like the logic of the Louisiana Supreme Court in the case of State of Louisiana v. Williams, 77 So. 2d 515. There, Williams was accused of being a fourth offender, having previously been convicted and given consecutive sentences of three years each in three different cases, all convictions occurring on the same day. The trial court concluded that Williams could only be sentenced as a second offender, since it viewed the three previous convictions on the same day as constituting only one conviction. The Supreme Court reversed this holding, stating:

“The district judge, noting that the alleged three previous convictions occurred on the same day (although for separate crimes), reasoned that under the multiple offender statute the ‘Enhanced punishment for one who “commits” an offense after having previously done so, necessarily contemplates an interval between the previous “conviction”, and the “commission” of the next offense.’ Accordingly, he concluded that the defendant could be sentenced only as a second offender (he viewed the three previous concurrent convictions as constituting, for the purpose of the statute, merely one conviction); and he ordered ‘that the State elect which one of the three previous convictions alleged to have occurred in the State of Alabama it will proceed upon, and insofar as the remaining two convictions, it is ordered that same (bill of information) be quashed, set aside, and held to be of no effect.’
“Alleging that the ruling of the trial court was contrary to our interpretation of the statute and our holding in State v. Clague, 224 La. 27, 68 So. 2d 746, 747, the state, by means of an application for remedial writs, successfully invoked our supervisory jurisdiction.
“In the Clague case (the factual situation of which was substantially identical with that presently under consideration) the defendant, immediately following his conviction on April BO, 1953 for simple burglary, was charged and sentenced pursuant to the provisions of the multiple offender statute as a triple felonious offender, he having been convicted and sentenced in 1951 for two similar crimes committed on the same date in adjoining premises of a double structure. At no time was he charged and sentenced as a second offender. In affirmation of the trial judge’s action this court observed: ‘We do not think that it is necessary for the defendant to have been charged as a double offender in order that he might be charged as a triple offender. What is mandatory is that he has been tried and convicted of two previous offenses. * * *
‘The punishment is for the third crime, and it is heavier because the accused has become an habitual offender. The defendant becomes a third offender at the time he commits the third crime, and the punishment is incurred at that time. ***’
“With the view and for the purpose of having us overrule the Clague decision the argument is made that under multiple offender legislation, which is directed at recidivism, ‘The increased penalties for habitual offenders are not intended to follow according to a numerical count of the offender’s crimes, but are imposed for his successive failures to rehabilitate himself. The result is that two or more offenses of a contemporaneous nature amount to but one offense.’
“This argument might be effective if addressed to the lawmakers. But with respect to a judicial interpretation of the particular statute under consideration it has no merit.”

We agree with the trial court that the petition was without merit.

Affirmed.

      Of course, he received two twenty-one year sentences, but it was ordered that they run concurrently.


author: George Rose Smith, Justice.

text:
    HYDE WHOLESALE DRY GOODS COMPANY v. Jack EDWARDS
    73-94
    500 S.W. 2d 85
    Opinion delivered October 8, 1973
    [Rehearing denied November 5, 1973.]

      Ronald L. Griggs and Camp é1 Thornton, for appellant.

      Shackelford é1 Shackleford, for appellee.
   George Rose Smith, Justice.

The appellant Hyde brought this foreclosure suit to enforce'promissory notes and a real estate mortgage executed in the 1950’s by Mrs. Katherine T. Edwards. As to. Mrs. Edwards (who died while the suit was pending below) the debt was barred by limitations. Hyde joined Mrs. Edwards’ son as a codefendant, asserting that he assumed liability for the debt, both orally and in writing. Edwards successfully moved for a summary judgment, disclaiming any legal responsibility for his mother’s obligation. Hyde appeals.

The summary judgment was based upon the pléad-ings and upon affidavits filed by both sides-. Hyde’s counsel, in contending that the chancellor erred as a matter of law, relies upon three separate actions taken by Edwards.

First: In 1966 Mrs. Edwards’ ownership of the mortgaged real estate prevented her from obtaining state welfare payments. According to the plaintiff’s affidavits, on June 2, 1967, Edwards orally agreed with Hyde’s attor,-ney that if that attorney would help Edwards obtáin welfare assistance for his mother, Edwards would assume and pay the debt. That oral agreement, stáhding alone, was barred by the three-year, statute of limitations when the summons against Edwards was issued in this case on May 30, 1972. Ark. Stat. Ann. § 37-206 (Repl. 1962).

Secondly: Pursuant to the plan to obtain welfare payments for Mrs. Edwards, she conveyed the mortgaged realty to her son on June 6, 1967, reserving a life estate. We are unable to agree with Hyde’s insistence that Mrs. Edwards’ deed amounted to a written assumption of the debt by her son. The conveyance was an ordinary warranty deed that made no mention whatever of the mortgage indebtedness. The situation is unlike that considered in Kenney v. Streeter, 88 Ark. 406, 114 S. W. 923 (1908), cited by Hyde. There the complaint asserted that Kenney in writing assumed the payment of the notes sued upon. While it was true that the deed to Kenney did not recite that he assumed the obligation, the court held that his failure to deny the allegation in the complaint justified the conclusion that he had assumed the debt by some other writing. In the case at bar there was no comparable failure by Edwards to deny the allegations of Hyde’s complaint.

Thirdly: Hyde, to avoid Edwards’ plea of limitations and the statute of frauds (Ark. Stat. Ann. § 38-101, subsection 2), relies upon certain correspondence between the parties. We do not find in the letters any such positive assumption of the debt as is required to satisfy the statute of frauds or to toll the statute of limitations. § 37-216. The letter most favorable to Hyde’s position was written by Edwards to Hyde’s attorney on September 8, 1967, and reads in part: “I plan to be back in El Dorado in November and hope to be able to make arrangements to take care of mortgage holders at that time and I would like to be able to have this welfare matter behind me at that time, if possible.” It will be seen that the letter falls far short of binding Edwards to pay the debt personally. The suggested arrangements might have entailed various other possibilities, such as the payment of the debt by Mrs. Edwards or by the sale of her property. The letter contains no statement that Edwards bound himself to pay the debt.

In a second point for reversal Hyde argues that the entry of a summary judgment was error, because the record discloses a genuine question of fact. That contention is based upon Edwards’ own affidavit. There Edwards stated that in late November, 1966, Hyde’s attorney telephoned him to say that some “token payment” on the debt had to be made at once to avoid foreclosure (as the statute was about to run). In answer to that demand Edwards sent a check for $10 directly to Hyde. Edwards’ accompanying letter reads in part: “Enclosed is our check for $10.00, in payment on the mortgage held by you, on my Mother’s property.” In his affidavit Edwards went on to say: “By forwarding this sum to Mr. Camp [Hyde’s attorney] I was simply complying with his request and in no means intended to assume the mortgage indebtedness of my mother.”

As we understand counsel’s argument, it is contended that Edwards’ statement that he did not intend to assume the mortgage indebtedness would not necessarily preclude the chancellor from finding as a fact that Edwards did so intend. That argument is unsound. Edwards’ affidavit established a prima facie basis for a summary judgment in his favor. The burden then shifted to Hyde, as plaintiff, to file a controverting affidavit. Since that was not done, the defendant was entitled to summary judgment. Epps v. Remmel, 237 Ark. 391, 373 S.W. 2d 141 (1963). Even though an interested party’s statement is not to be taken as undisputed, that rule does not mean that his denial of a fact amounts to proof that the fact exists. It is our conclusion from the record that the appellant simply allowed the statute of limitations to run before filing suit.

Affirmed.

Harris, C. J., dissents.


text:
    Roy ROWLAND v. STATE of Arkansas
    CR 73-91
    499 S.W. 2d 623
    Opinion delivered October 8, 1973

      Lloyd R. Haynes, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was convicted of three violations of Ark. Stat. Ann. § 41-4501 (Repl. 1964), which reads in part: “Any person who shall wear or carry in any manner whatever, as a weapon, any dirk or bowie knife, or sword or spear in a cane, brass or metal knucks, razor, blackjack, billie or sap, ice pick, or any pistol of any kind whatever, shall be guilty of a misdemeanor.” The trial court fixed the punishment for each offense at a fine of $50 and confinement for 30 days, the latter part of the sentences to run concurrently. For reversal it is contended that the proof is insufficient to support the convictions.

Rowland was arrested in Little Rock in 1972 for a traffic violation. In his truck the officers found two shotguns with butcher knives attached to them and a loaded .38 caliber pistol. A chain was wrapped around the shotguns, passed through the trigger guard of the pistol, and secured with a padlock. Rowland had the key to the lock.

Rowland testified that in 1966 or 1968 a man cut him with a knife and another man threatened him with a pistol. According to Rowland, the prosecuting attorney refused to file charges in either case. Rowland testified that he was carrying the firearms and knives not as weapons but as a means of publicizing the injustices that he had suffered. He therefore argues that there was no violation of the statute, which forbids any person to carry “as a weapon” any of the articles specified in the act.

We hold that the proof presented a question of fact with respect to the pistol, which is one of the articles decribed in the statute. Whether a pistol is being carried as a weapon is ordinarily an issue of fact. Clark v. State, 253 Ark. 454, 486 S.W. 2d 677 (1972). We sustained a conviction upon proof that the defendant had a loaded pistol in the glove compartment of his car. Stephens v. City of Fort Smith, 227 Ark. 609, 300 W.S. 2d 14 (1957). The trial court was not required to accept Rowland’s explanation of his conduct, not only because the carrying of firearms obviously did not bring his precise grievances to the attention of the public, but also because his explanation did not account for the pistol’s being loaded. Hence there is substantial evidence to support the conviction upon the charge involving the pistol.

On the other hand, the State did not make a prima facie case with regard to the shotguns and butcher knives. Shotguns are not mentioned ip the statute at all. Neither are butcher knives, but the State argues that a modern butcher knife is the same thing as a Bowie knife. We cannot agree. Criminal statutes must be strictly construed, with doubts being resolved in favor of the defendant. Stuart v. State, 222 Ark. 102, 257 S.W. 2d 372 (1953). A butcher knife is certainly not a Bowie knife, as the latter is defined and illustrated in dictionaries. See the American Heritage Dictionary (1969) and the Random House Dictionary (1966). When the statute in question was adopted in 1818, Bowie knives were more commonly carried than they are today; so the legislation was needed. In 1909 die legislature added the reference to pistols. In 1941 the legislature further modernized the statute by including blackjacks, billies, saps, and ice picks, but the lawmakers did not find it necessary to mention butcher knives. In 1973, which was after the present charges had been filed against Rowland, the legislature amended the statute by deleting the reference to Bowie knives, which are no longer in current use. Act 54 of 1973. We also note that the State could have filed its charges with respect to the butcher knives under Act 457 of 1961, which refers specifically to any knife having a blade at least three and a half inches long. Ark. Stat. Ann. §§ 41-4521 and -4523. The State, however, chose to proceed under Section 41-4501, which we find to be inapplicable.

Affirmed in part and reversed in part.


author: Lyle Brown, Justice.

text:
    T. S. SMITH v. Claude W. CRUTHIS et al
    5-6221
    499 S.W. 2d 852
    Opinion delivered October 8, 1973

      Eubanks, Files & Hurley, for appellant.

      Butler ¿r Hicky, for appellees.
   Lyle Brown, Justice.

This suit primarily concerns a boundary dispute. Appellees, Claude W. Cruthis and John H. Cruthis, are the owners of Section 34, Township 5 North, Range 1 West, in Woodruff County. Appellee John E. Cruthis was the tenant on the lands for 1970. Appellant T. E. Smith owns Section 3, Township 4 North, Range 1 West, in St. Francis County. Appellant’s land lies immediately south of the Cruthis land; in other words the parties have a common boundary line which is also the line between the two counties. Claude and John Cruthis alleged that appellant came upon their side of the property line in 1970 and erected a levee which obstructed the natural drainage from the Cruthises lands. The Cruthises asked for a permanent injunction to prohibit the maintenance of the levee which was obstructing the natural flow of the surface water from their lands. Their tenant, John E. Cruthis, sought 1970 crop damages caused by the waters; the amount of damages was alleged to be $700. Appellant, Smith, denied the allegations of the complaint except as to ownership of the two sections. Affirmatively, appellant alleged that appellees, several years ago, dug a ditch from the northwest to the southeast across their lands in order to drain their lands and speed the flow of surface water and created a temporary lake for duck hunting; that the parties entered into an agreement whereby appellees agreed to divert the water that was impounded by appellees’ levee into a ditch which appellees dug on appellant’s land with his permission; that the ditch emptied into a natural drain; and that appellees’ damages resulted from their failure to keep the ditch unobstructed. Appellant also alleged that ap-pellees promised to remove two pipes they had placed in the drain when they constructed the levee and that they would close the gaps in the levee when the pipes were removed.

Appellant Smith cross-complained against the ap-pellees, the landowners. He asserted that appellees had twice trespassed on his lands in 1971 and cut his dikes and levee which he contended were on the boundary line; and that those acts cast impounded drainage water upon appellant’s land and destroyed his rice crop consisting of thirty acres. For those alleged activities appellant prayed for actual and punitive damages.

The trial court first fixed the boundary line. If that line is correct then appellant Smith constructed what is designated as a new rice ditch (flume) east and west and substantially upon the acreage of the Cruthises. That ditch is not true east and west and protrudes at variable distances into Section 34 in Woodruff County. The protrusions vary from a very small distance up to, roughly, some 500 feet. The court directed that appellant remove the flume and levee which it found to be north of the established line; however, the court held that the parties were dealing with surface water and that landowners, appellant in particular, had the right to fend off surface waters by maintaining a flume and levee upon his own lands. The court denied damages to either party on the finding that the estimates of damages were too speculative.

Appellant designates four points for reversal:

I and II
The court was in error in its determination of the boundary line. The court was in error in ruling that the extension eastwardly of an east-west roadway represented the recognized boundary between the properties.
The court erred in exercising jurisdiction over appellant’s counterclaim.
IV
If the court did not err in exercising jurisdiction over appellant’s counterclaim then it was error to deny damages sought by that claim.

The cross-appeal of the Cruthises asserts two points:

I
The court erred in refusing to permanently restrain appellant from erecting levees and obstructions on appellant’s land which would interfere with the natural drainagé of waters flowing from appellees’ land through the slough or slash across appellant’s lands into Flat Fork Creek.
II
The court erred in refusing to give judgment against appellant Smith for damages to crops on appellees’ land for the crop year 1970.

We first approach the main issue of boundary dispute. We cannot say that the finding of the chancellor was against the preponderance of the evidence. Three surveyors testified: Sam Word, Billy M. Cline and Jack Mitchell. The court found that Word’s survey, as shown in appellees’ exhibit eight, represented the true line, and we approve that finding. Cline’s survey was very much in agreement with the Word survey. The court found that the Mitchell survey, made on behalf of appellant, was in error. The court commented that the Mitchell survey of 1970 coincided with the determinations made by Word and Cline. However, Mitchell did additional surveying in 1971 and at that time he placed the boundary line quite a number of feet north of his 1970 survey. The court commented in its decree that the Cline and Word surveys represented an extension of an east-west road between the litigants; therefore, says appellant, the court was inconsistent. We do not agree. The court unequivocally held the Word survey, as shown by exhibit eight, “to be the correct boundary line between the Cruthises and Smith”. Incidentally, that exhibit does show the Word line to be an extension of a farm road, which road the court said the parties had long recognized as the true line. What we have said disposes of appellant’s points I and II.

Appellant’s Point III is that the court erred in exercising jurisdiction over appellant’s counterclaim. That point is based on the theory that the suit was filed in Wood-ruff County and that the crop damages arose in St. Francis County. Our counterclaim statute is mandatory. Ark. Stat. Ann. § 27-1121 (Repl. 1962). That statute says that in addition to a denial of the complaint the defendant “must set out in his answer as many grounds of defense, counterclaim or set-off, whether legal or equitable, as he shall have”. In Troxler v. Spencer, 223 Ark. 919, 270 S.W. 2d 936 (1954), Justice Millwee had this to say about the reason behind the act:

In recent years there has developed a wave of procedural reform which tends to brush aside traditional limitations on pleadings of counterclaims and set-offs in order that circuity and multiplicity of actions might be avoided and litigants enabled to settle all matters between them in a single action. Arkansas has been in the forefront of this movement. Prior to 1917 our Civil Code (Kirby’s Digest, § 6099) defined a counterclaim as follows: “The counterclaim mentioned in this chapter must be a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contract or transactions set forth in the complaint, as the foundation of the plaintiff’s claim or connected with the subject of the action.” This section was amended by § 1 of Act 267 of 1917 which now appears as Ark. Stats., § 27-1123, and reads: “The counterclaim mentioned in this chapter may be any cause of action in favor of the defendants, or some of them against the plaintiffs or some of them.” It is also now provided in the fourth subdivision of Ark. Stats., § 27-1121, that a defendant must set out in his answer as many grounds of defense, counterclaim, or set-off as he shall have, and we have held the provision, mandatory. Shrieves v. Yarbrough, 220 Ark. 256, 247 S.W. 2d 193. We have repeatedly stated that the manifest purpose of the legislature in enacting the foregoing statutes was to permit litigants to settle all matters in dispute between them in a single unit.

We reiterate that the purpose of the compulsory counterclaim statute is to require all claims arising out of the same series of events to be settled in one suit rather than spawning a number of related claims. The wisdom of the rule should not be defeated by the breaking off of jurisdiction at a county line that lies between the litigating neighbors. See Reasor-Hill Corp. v. Harrison, Judge, 220 Ark. 521, 249 S.W. 2d 994 (1952).

Appellant’s final point is that if the court had jurisdiction over his counterclaim for damages then the court erred in denying any damages, We have reviewed the evidence and we are unable to say that the finding of the chancellor is against the preponderance of the evidence.

By cross-appeal, appellees say the court erred in refusing to permanently enjoin appellant Smith from erecting levees and obstructions on Smith’s own land which would interfere with the natural drainage of waters flowing from appellees’ lands. The court specifically held that the parties were dealing with surface water and we cannot say it was error to so hold. The court held that the landowners had a right to build flumes and levees on their own lands to fend off surface waters. We recently said that a landowner “has the right to fend off surface waters, so long as he does not unnecessarily damage his neighbor”. Solomon v. Congleton, 245 Ark. 487, 432 S.W. 2d 865 (1968). To the same effect see Turner v. Smith, 217 Ark. 441, 231 S.W. 2d 110 (1950); Brasko v. Prislovsky, 207 Ark. 1034, 183 S.W. 2d 925 (1944).

Finally, appellees assert that the court erred in not awarding $700 for crop damages. They point up the testimony of John E. Cruthis in that respect and say that the testimony was uncontradicted. In the first place, John’s testimony was very sketchy and conclusionary. Furthermore, John was a party to the suit and it cannot be said that he was a disinterested witness. We find no merit in the point.

Affirmed on appeal and cross-appeal.


text:
    ARKANSAS STATE HIGHWAY COMMISSION v. M. C. RYE et ux
    73-90
    499 S.W. 2d 624
    Opinion delivered October 8, 1973

      Thomas B. Keys and Philip N. Gowen, for appellant.

      Donald Poe, for appellees.
   Lyle Brown, Justice.

This is an eminent domain cáse. It concerns a tract of land consisting of 101 acres in Scott County approximately one mile north of the city limits of Waldron. The south sixty-one acres of the property fronted on the west right-of-way of U.S. Highway 71 for one-quarter of a mile. That portion of the property was improved with the owners’ dwelling and outbuildings. The 2.96 acres was taken so the State could build the Waldron by-pass. The acquisition was a strip of land along the entire Highway 71 frontage ranging in depth from 15 feet to 371 feet. Two, 50 foot access points were given to the remainder, one to the north and another to the south. The original driveway was destroyed by the acquisition. With the exception of the two access points, controlled access was imposed across the remaining frontage. Just compensation was fixed by the jury at $9000. On appeal the Highway Department contends the verdict was excessive.

The landowners presented the evidence of an expert witness, Charles Wilburn. His qualifications were impressive and unquestioned. He testified just compensation to be $12,285. Appellant abstracted only the testimony of this witness. He fixed the market value of the whole tract before the taking at $65,000 and set the value of the remainder at $52,915. He used several asserted compar-ables to justify the land values. To the 2.96 acres taken, the witness attributed a value of $1185. He fixed a figure of $1300 as damages to the landscaped area within the taking. To sustain that figure the witness related that the road would have to be changed to come out at a different point because of the interchange; that part of a highly improved driveway was destroyed; and that some thirty well-developed trees, along with a number of young pine trees, were in the taking. The witness attributed the balance of the damages — some $10,000 — to placing the highway frontage under controlled access:

I think that’s a minimum it would sell for less, yes sir. My damages are because of the fence. Because of the limited access. He does have access on both ends of his property, but he don’t have a quarter of a mile of paved access and this road winds around through there in such a position that if he was going to develop it, they’d have to re-do that road. If a developer had it, he’d re-do that road. He wouldn’t use all that land that’s in between there and the highway. You’re talking about this access road up to the house; a developer couldn’t use that road if he wanted to develop it because he wouldn’t want to lose that acreage of land out in front there.

It was Wilburn’s opinion that the land before the taking was ideal for homesites, being dose to Waldron, having good terrain, and having unfettered highway frontage of a quarter of a mile. The witness also testified that, based on his experience, property located back of a controlled access fence sold for a lesser price per acre. He also related that a developer would have to build a new paved road behind the fence at substantial expense, and that expenditure would of course affect the price the developer would pay for the land.

When the freedom of access to a public highway is substantially affected by a taking so as to diminish the fair market value of the tract then compensable damages arise. Arkansas State Highway Comm’n. v. Billingsley, 247 Ark. 49, 444 S.W. 2d 259 (1969); Campbell v. Arkansas State Highway Comm’n., 183 Ark. 780, 38 S.W. 2d 755 (1931).

We are unable to say that the damages fixed by Wilburn are excessive. He was conceded to be an expert with excellent credentials. The jury verdict was well within the range of his testimony. See Arkansas State Highway Comm’n. v. Rhodes, 240 Ark. 565, 401 S.W. 2d 558 (1966).

Affirmed.