author: George Rose Smith, Justice. Webb Hubbell, Chief Justice,

text:
    James Theral METCALF v. STATE of Arkansas
    CR 84-87
    681 S.W.2d 344
    Supreme Court of Arkansas
    Opinion delivered December 17, 1984

      Kennard K. Helton, for appellant.

      Steve Clark, Att’y Gen., by: Velda'P. West, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

On March 23, 1983, at 6:55 a.m., the Plainview fire department was called to a fire at Horn’s grocery, which was also the residence of Samuel, Mabel, and John Horn. At the scene the firemen learned that the three Horns were still inside the burning building. In. extinguishing the fire the firemen found the bodies of the three Horns, all of whom had died not from the fire but from having their heads battered and their throats cut. It later appeared that the victims had also been robbed. The appellant Metcalf was convicted on three counts of capital murder and sentenced to life without parole on each count. We need discuss in detail only one of his five arguments for a new trial.

At a hearing on a motion to suppress an in-custody statement given by Metcalf, the weight of the testimony showed that when Metcalf was arrested on the night of March 23 he asked for a lawyer, but none was provided. The next morning he was taken from his cell for questioning. An officer testified that when Metcalf was again reminded of his rights he started talking “a mile a minute” even though an officer tried to stop him. A tape recorder was turned on and took the rest of his statement, which was introduced at the trial.

The trial judge, in ruling that the statement was admissible, recognized the difficulty: “I do want to state this: This man did request a lawyer and ... I have some serious problems with it.” The judge concluded, however, that Metcalf had waived his rights when he was reminded of them and kept talking.

The judge’s ruling was wrong. When a person in custody indicates that he wants a lawyer, under the Miranda rule the interrogation must cease. Moore v. State, 261 Ark. 274, 551 S.W.2d 185 (1977); Davis v. State, 243 Ark. 157, 419 S.W.2d 125 (1967). It is true that the accused person may change his mind and initiate further contact with the officers, but the impetus must come from the accused, not fromthe officers. Oregon v. Bradshaw, _U.S__, 103 S. Ct. 2830 (1983); Edwards v. Arizona, 451 U.S. 477 (1981); Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982). Here Metcalf was admittedly taken from his.cell for questioning. He should not have been put in that position without a lawyer being present; so his supposed willingness to make an uncounseled statement is immaterial.

Since a new trial is necessary, we mention the other four points. First, the death-qualification of the jury was not improper. Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983). Second, Metcalf’s wife could be required to testify for the State, for she was not asked to disclose any confidential communications. Uniform Evidence Rules 501 and 504; Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977). Third, defense counsel conceded that the State could question Mrs. Metcalf about her prior inconsistent statements, for impeachment. It is argued that the entire statement should not have been admitted; but the statement was brief, and we do not see that the non-impeaching portion conveyed any prejudicial information to the jury. See Davis v. Ark. Best Freight System, 239 Ark. 632, 393 S.W.2d 237, 17 A.L.R. 3d 986 (1965).

Fourth, while in jail awaiting trial Metcalf wrote a letter to his wife, urging her and other witnesses to commit perjury in several respects at the trial. Metcalf put the letter in an unsealed envelope and asked a fellow prisoner who was confined for only 10 days, to smuggle it to Metcalf’s wife. The inmate, however, turned the letter over to the sheriff, and it was introduced in evidence by the State.

It is argued, first, that the letter was inadmissible, because in entrusting it to the other inmate Metcalf had an expectation of privacy and of freedom from an unreasonable search. We have held, however, that jail officials may examine an unsealed letter written by an inmate. Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979). Further, weagree with a California decision upholding the admissibility of a letter entrusted by the writer to a fellow prisoner and turned over to the sheriff. People v. Hunt, 133 Cal. App. 3d 543, 184 Cal. Rptr. 197 (1982). There the court said: “The general rule is that an inmate at a jail has no right to privacy. . . .Lack of privacy is a built-in aspect of imprisonment, with censorship and control of communications to and from a jail inherent in its administration. Such authority is necessary to protect against escape.’ ”

Second, counsel argues that the letter was inadmissible as being a confidential communication to Metcalf’s wife. An oral communication between spouses, however, is not protected when it is overheard by a third person. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). Similarly, Metcalf waived any possible confidentiality of the letter by delivering it unsealed to a fellow inmate.

The State’s motion for an award of costs for a supplemental abstract is denied. The additional material goes largely to the sufficiency of the State’s proof, a matter not questioned by the appellant.

Reversed and remanded.

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

Webb Hubbell, Chief Justice,

dissenting. I respectfully disagree with my colleagues’ reversal of this case. I disagree with the majority’s statement that the weight of the testimony showed that when Metcalf was arrested on the night of March 23 he asked for a lawyer, but none was provided. On March 23, 1983, appellant was arrested at 8:00 p.m. At 9:01 p.m. James Metcalf signed a standard statement of rights form which included his acknowledgment that he understood he had a right to remain silent, that he had a right to consult an attorney, and that he had the right to stop any questioning at any time. In fact, appellant said he did not want to talk that night, and no further questioning was even attempted.

Appellant testified that he asked Jim Pickens, an honorary deputy sheriff, for an attorney the night of his arrest. Jim Pickens testified that appellant asked if he would be able to get an attorney, and Pickens said, “Yes, I’m sure you will.” Neither appellant nor Pickens pinpointed the time this conversation took place. Appellant also failed to establish what authority this “honorary deputy sheriff” has to bind the state. Appellant also testified that he asked two other officers for an attorney. The officers both testified that no such request was made.

At 9:15 the next morning, the appellant was brought in for questioning. All three officers present testified that appellant did not request either a phone call or an attorney. Appellant was again reminded of his rights, and appellant started talking “a mile a minute” even though an officer tried to stop him until the tape recorder could be started. A careful review of the transcript does not reveal even a hint of reluctance on the part of appellant to give a statement. The trial court was not clearly erroneous in admitting into evidence appellant’s statement.

The facts in this case warrant a finding of waiver. Appellant was found guilty of the savage murder of three people. The evidence of appellant’s guilt was substantial. There is, however, absolutely no evidence that appellant’s statement was not freely and voluntarily given. While in custody, and after twice being advised of his rights to remain silent and to have counsel, appellant gave a voluntary statement. Appellant had not been languishing in jail for days. There is no assertion, and no evidence, that appellant had been starved, beaten, threatened, coerced, enticed, or mistreated in any way. Appellant was arrested at 8:00 p.m., was given notice of his constitutional rights, and was allowed to remain silent. The next morning, after again being reminded of his rights, he freely gave a statement. There is no evidence that he acted without full awareness of his constitutional rights. Indeed, upon questioning by the police, appellant repeatedly responded that he understood his rights. I believe appellant waived his right to counsel. A waiver is an intentional relinquishment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

I believe these facts warrant something more than just an automatic imposition of the exclusionary rule. I recognize that the majority is operating from what it believes to be a long line of precedent and mandate from the United States Supreme Court, but I believe that precedent is eroding. See Nix v. Williams, 104 S. Ct. 2501 (1984). It is time we balanced the scales of justice in reviewing cases where there are important competing interests. In balancing we must be careful that we do not open the floodgates to the. introduction of illegally seized evidence. Such a result would be inherently inimical to the rationales traditionally invoked to justify the exclusionary rule —■ deterrence of police misconduct and preservation of judicial intergrity. We must carefully balance the wisdom of striving to enhance deterrence of official misconduct against the high social costs of excluding probative evidence.

The exclusionary rule is in no sense a personal constitutional right, but a judicially conceived remedial device designed to safeguard and effectuate guaranteed legal rights. Stone v. Powell, 428 U.S. 465 (1976). Involuntary and coerced admissions are suppressed because of the inherent unreliability of a confession wrung from an unwilling suspect by threats, brutality, or other coercion. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). We all agree on society’s abhorrence to the use of involuntary confessions. Linkletter v. Walker, 381 U.S. 618, 638 (1965). But use of appellant’s disclosure carries no risk whatsoever of unreliability. No dangers are posed to individual dignity or free will since there is not an issue of coercion or threats.

The consequence of the majority’s decision is extremely serious. Why? Apparently the answer is that the majority believes that the law enforcement officers acted in a way which involves some risk to society and that such conduct should be deterred. The officers’ conduct did not and was not likely to jeopardize the fairness of appellant’s trial or in any way risk the conviction of an innocent man — the risk against which the Sixth Amendment guarantee of assistance of counsel is designed to protect. Powell v. Alabama, 287 U.S. 45 (1932); Johnson v. Zerbst, 304 U.S. 458 (1938).

I would not automatically impose the exclusionary rule but would adopt a balancing test. Where, as here, there is no egregious conduct on the part of the law enforcement officers, no evidence that the statement was anything less than voluntary, and the other evidence against the appellant is so substantial that there is no risk of a conviction of an innocent man, I would hold that the introduction of the statement is not reversible error.

I respectfully dissent.

Hays, J., joins in this dissent.


source: Caselaw Access Project

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

license: Public Domain

text:
    Kenneth T. CROSS, Jr., v. Dale BRUCE, et al
    84-154
    681 S.W.2d 339
    Supreme Court of Arkansas
    Opinion delivered December 17, 1984

      Givens & Buzbee, by: /. R. Buzbee, for appellant.

      Jim Hamilton, North Little Rock City Att’y, by: Terry R. Ballard, Asst. City Att’y, for appellees.

      Hilburn, Calhoon, Forster, Harper ir Bruniski, Ltd., by: John F. Forster, Jr. and Scott E. Daniel, for Intervenor Randy Johnson.
   Darrell Hickman, Justice.

Kenneth Cross, a sergeant with the North Little Rock Police Department, filed suit seeking promotion to the rank of lieutenant. Randy Johnson, who was promoted ahead of Cross, was a named defendant. The circuit court upheld the promotion and denied Cross any relief, finding that Johnson was at the top of a valid list at the time of the promotion. We affirm the court’s decision for to do otherwise would mean a civil service promotion list would be valid for more than one year, a procedure contrary to statute. This is a case of first impression and to our knowledge there is no controlling case law. The facts are important.

The initial promotion list was certified January 21, 1982, with the first three officers eligible for promotion listed in the following order: Bob Scarborough, Don Gilbert and Cross. No promotions were made from this list. The second list was issued December 9, 1982, listing the same officers in the same order. Scarborough was promoted to lieutenant on February 21, 1983, and Gilbert on September 14, 1983. This left Cross at the top of the list. But a third list was certified on December 8, 1983, and Cross was again third, behind officers Randy Johnson and Jerry Lamberson. It was from this list that Randy Johnson was promoted on January 10, 1984.

Cross’ argument is essentially this: there can only be one list for promotion, the list must remain in effect for one year, and a new list is not valid until the old list has expired. Therefore, under his argument the first list made January 21, 1982, could not have been superseded until January 21, 1983; consequently, the second list, while issued on December 9, 1982, actually was effective from January 21, 1983, until January, 1984, making Cross at the top of the eligibility list at the time of Johnson’s promotion. Simply stated, the issue is whether there can be more than one list in effect simultaneously.

The controlling statute, Ark. Stat. Ann. § 19-1603 4th (Repl. 1980), is part of a civil service system governing the police and fire departments in the state. That statute, which provides for eligibility lists for promotion, does not expressly dictate the result in this case. It merely states:

These rules shall provide: ....

4th. For the creation of eligible lists for each rank of employment in said departments in which shall be entered the names of the successful candidates in the order of their standing in the examination. No person . shall be eligible for examination for advancement from a lower to a higher rank until he shall have served at least one (1) year in the lower rank except in the case of emergency, which emergency shall be decided by the Board of Commissioners. All lists for appointments or promotions as certified by the Board of Civil Service Commissioners shall be and remain in force and effect for the period of one (1) year from the date thereof and at the expiration of said period all right of priority under said lists shall cease.

The statute in no way precludes the existence of more than one list. Cross concedes that no promotions were made while two lists were in existence. There are sound reasons why the department should not be limited to one list. Vacancies cannot be foretold with certainty and a valid list must be available at all times. The maintenance of more than one list insures that if the prior valid list is exhausted, then the second list can be used. If Cross’ reasoning were adopted, then the December 9,1982, list would not take effect until January 21, 1983, and would be in effect until January 21, 1984. That means that the December 9, 1982, list would have a life of more than one year, a result clearly not contemplated by the statute, which requires that lists expire after one year. The lists are based on examinations and the one year limitation makes sure that the list accurately reflects the officer’s current qualification to be promoted. We hold that the maintenance of two eligibility lists is not improper and that each should expire one year after it is certified.

We emphasize that there is no evidence, or even a suggestion, that the city used the existence of more than one list or the vacancy to deprive Cross of the position. There is no evidence of manipulation which could conceivably be a vehicle for discrimination.

Affirmed.

Purtle, Dudley and Hollingsworth, JJ., dissent.

John I. Purtle, Justice,

dissenting. My understanding of the grammar and arithmetic is different from that of the majority in this case. I think Ark. Stat. Ann. § 19-1603 (4) (Repl. 1980) supplies the language and figures to settle this case in favor of the appellant. The statute is correctly quoted in the majority opinion and I point to where it states: “All lists for appointments or promotions as certified by the Board of Civil Service Commissioners shall be and remain in force and effect for the period of one (1) year from the date thereof and at the expiration of said period all right of priority under said lists shall cease.”

The first list here in question was certified on January 21, 1982. According to the plain words of the statute, that list expired on January 20, 1983. Appellant ranked third on that list. He was not promoted. On the second, list appellant again ranked third. This second list should have become effective on January 21, 1983, and should have lasted through January 20, 1984. The two officers ranked above him on this list were promoted. A third list was certified by the Commission on December 8, 1983. Had this third list not been placed in effect until January 21, 1984, the second list would have governed the promotion on January 10, 1984, when another officer from a new list was promoted.

Although it may not be the case it looks like the authorities did not want appellant promoted to lieutenant. Had each list remained in force for one year as required by the statute appellant would have been promoted. As it stands now the Commission may terminate a list at will or have as many lists in effect at the same time as it desires. Such action would completely ignore the one year list requirement and allow the Commission to pick and choose at will.


author: Darrell Hickman, Justice.

text:
    Allen Lynn PENN v. STATE of Arkansas
    CR 84-43
    681 S.W.2d 307
    Supreme Court of Arkansas
    Opinion delivered December 17, 1984

      William R. Simpson, Jr., Public Defender and Howard W. Koopman, Chief Deputy Public Defender, by: Carolyn P. Baker, Deputy Public Defender.

      Steve Clark, Att’y Gen., by: Velda P. West, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Allen Lynn Penn was convicted of the capital murder of Anthony Faherty, a service station and convenience store clerk, who was shot during a robbery on February 8, 1983, in Little Rock, Arkansas. The death penalty was waived by the state and Penn was sentenced to life imprisonment without parole.

Penn raises three arguments on appeal. First he makes the argument that since Arkansas’ capital murder and first degree murder statutes overlap, they are unconstitutional because one charged with murder during the course of a felony can either be charged with capital murder or first degree murder, depending on the whim of the state. We explained in Cromwell v. State, 269 Ark. 104, 598 S. W.2d 733 (1980), why the overlap was not unconstitutional under the void for vagueness doctrine. Penn also argues that the statute violates his right to equal protection. That argument was likewise rejected in Miller v. State, 273 Ark. 508, 621 S.W.2d 482 (1981). It would serve no purpose to reiterate those views which we still hold.

Penn’s other two arguments are virtually inseperable. He challenges the sufficiency of the evidence but concedes this argument hinges on whether we rule that his in-court identification by an eyewitness should have been suppressed. He states that the identification by Joe Bailey, a taxi driver, was inherently unreliable and therefore resulted in a denial of due process.

To understand Penn’s argument a recitation of the facts leading to the identification is necessary. At about 2:30 a.m. on February 8, Joe Bailey pulled his taxi into the station where Faherty was working. He saw a man with a shotgun inside. The man turned and pointed the gun at Bailey. Bailey fled. Bailey encountered officer Valerie Staley and reported the incident. Bailey then returned to within about a half block of the scene to see what would transpire. The same morning the robbery occurred, Bailey described the gunman as being about 5'10" or 5'11". About four hours after the robbery, he was shown a lineup in which Penn was the second man. Bailey identified Penn and the first man as “look alikes” of the robber. The first man was 6' or 6'1". Bailey made no positive identification.

On February 10, two days after the lineup, two detectives took Bailey to the scene. One dececdve stood inside the store and raised and lowered himself so that Bailey could better determine the robber’s height. After that Bailey said the gunman was 5'8"or 5'10". On March 1 Bailey went to the police station and reported that he had recognized the gunman in the lineup but had decided to be silent because of fear of retaliation. He said after discussing it with his wife he decided to come forward. He identified Penn as the gunman and then verified that identification by viewing a photograph of the lineup. Bailey identified Penn at trial.

Prior to trial Penn moved that the identification be suppressed. He argued then and now that the procedure on February 10 to purportedly help Bailey determine the height of the gunman more accurately was merely a pretext to eliminate the number one man in the lineup and, therefore, make Bailey more likely to identify Penn.

The trial court held an omnibus hearing to determine whether the pretrial procedures tainted the in-court identification and ruled there was no taint. That preliminary ruling is a mixed question of law and fact, and we do not reverse the ruling unless it is clearly erroneous. Cook v. State, 283 Ark. 246, 675 S.W.2d 366 (1984). Whether an in-court identification meets constitutional standards is a question for the trial court. Banks v. State, 283 Ark. 284, 676 S. W.2d 459 (1984). Factors for determining the reliability of an in-court identification include the witness’ opportunity to view the defendant, the time lapse between the crime and the identification, the level of certainty of the identification, and the accuracy of the prior description given by the witness. Banks v. State, supra. We do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of misidentification. Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984); Simmons v. United States, 390 U.S. 377 (1968). Once the trial court permits the use of identification testimony as evidence, it is for the jury to decide what weight it is to be given. Wilson v. State, supra.

We find no error in the admission of the identifiction testimony. Bailey testified that the lights were on in the store and that he was absolutely positive Penn was the man inside with the shotgun. There is no evidence at all that the police encouraged Bailey’s identification of Penn. Indeed, the police corroborated Bailey’s testimony that he came in voluntarily on March 1 to identify Penn.

Furthermore, James Franks testified that, as he passed the station, he saw a man inside with a shotgun robbing the clerk. He also saw a black and white cab pull into the station and leave quickly. That is the type of cab driven by Bailey. Franks was unable to identify the gunman. Officer Staley, whom Joe Bailey notified after leaving the scene, testified that she had seen Penn on the same corner where the station is about an hour before the robbery.

Bailey’s testimony, then, was corroborated to some degree by the evidence of the other witnesses. Whether Bailey’s reason for not identifying Penn earlier was credible was for the jury to decide. See Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980).

The only evidence Penn offered was through one of his cellmates and his cellmate’s girl friend. They both testified that they had been at the station about 1:30 a.m. the morning of the robbery and saw a man — not Penn — in the back of the store acting suspiciously. Again, this was a matter of credibility for the jury to decide. We find that the evidence was sufficient to support the conviction and that Penn received a fair trial.

In a related proceeding, Penn petitioned this court for a writ of error coram nobis, which we granted. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). Penn had a hearing to determine whether a confession to the murder of Anthony Faherty by Donald Lewis would entitle him to a new trial. At the hearing Donald Lewis refused to testify and the judge ruled that Penn would not be allowed a new trial. Penn does not question the correctness of that ruling in his appeal.

Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. At the omnibus hearing, Penn’s counsel asked that Penn’s presence not be required so that Joe Bailey would not have “one free look” at Penn, and thus bolster his identification of Penn. The trial court refused the request and Penn objected. The record does not reflect whether Bailey was present, and there is no evidence that Bailey’s in-court identification of Penn was bolstered by this procedure. We find no prejudicial error in the points argued or in the other objections abstracted for review.

Affirmed.

ERRATA 284 ARKANSAS REPORTS at page 235 Detach at perforation, moisten the back, and paste over the first line on the third full paragraph of the majority opinion on page 235 of Penn v. State: Penn’s other two arguments are virtually inseparable.

      ERRATA 284 ARKANSAS REPORTS at page 235 Detach at perforation, moisten the back, and paste over the first line on the third full paragraph of the majority opinion on page 235 of Penn v. State: Penn’s other two arguments are virtually inseparable.


author: Robert H. Dudley, Justice. P. A. Hollingsworth, Justice,

text:
    Bill CLINTON, Governor of the State of Arkansas, and J. Steven CLARK, Attorney General of the State of Arkansas, v. Tom TAYLOR
    84-284
    681 S.W.2d 338
    Supreme Court of Arkansas
    Opinion delivered December 17, 1984

      Steve Clark, Att’y Gen., by: Curtis L. Nebben, Deputy Att’y Gen., for appellant.

      Murray F. Armstrong, for appellee.
   Robert H. Dudley, Justice.

The first fourteen sections of Act 922 of 1983 contain an appropriation for the judicial retirement system. Sections 15 and 16 of the same act change Cleveland County from one judicial district to another. The appellee filed suit seeking to have Sections 15 and 16 of the act declared in violation of article 5, § 30 of the Constitution of Arkansas. That constitutional provision is as follows:

§ 30. General and special appropriations. — The general appropriation bill shall embrace nothing but appropriations for the ordinary expense of the executive, legislative ánd judicial departments of the State; all other appropriations shall be made by separate bills, each embracing but one subject. (emphasis added)

The trial court held that Sections 15 and 16 were in violation of the constitution but, because of the severability clause, • the remainder of the act was unaffected by the decision. We affirm. Jurisdiction to construe the act and the constitution is in this court. Rules 29(1 )(a) and (c).

Sections 20 and 22 of Article V of the Constitution of 1868, when construed together, constituted a provision similar to the one in our present constitution. In considering the purpose of the language in the earlier constitution, we held that there must be a unity of subject which prevents omnibus bills in which proponents of one subject could be united with the proponents of another subject and, together, the proponents of the various subjects would unite to carry through bills which, alone, could not have passed. Fletcher v. Oliver, 25 Ark. 289 (1868) and Palmore v. State, 29 Ark. 248 (1874). Under the present constitution, all appropriation bills must be limited to a unity of'subject. State v. Sloan, 66 Ark. 575, 53 S.W. 47 (1899). Changing Cleveland County from one judicial district to another is not related by subject matter to the appropriations for the judicial retirement system because the separate provisions cannot be said to accomplish a purpose of one design. See Cottrell v. Faubus, 233 Ark. 721, 347 S.W.2d 52 (1961).

Affirmed.

Hollingsworth, J., dissents.

P. A. Hollingsworth, Justice,

dissenting. I do not agree with the Court on the conclusion that changing a county from one judicial district to another is not related to appropriations for the judicial retirement system. The opponents of this act contend that the unity of subject required by article 5, section 30 is violated by the realignment of counties. However, as stated in State v. Sloan, 66 Ark. 575, 53 S.W.47 (1899), “The unity of the subject of an appropriation is not broken by appropriating several sums for several specific objects, which are necessary or convenient or tend to the accomplishment of one general design, notwithstanding other purposes that the main design may be thereby subserved.” The general subject matter here is the state judiciary system. In Hooker v. Parkin, 235 Ark. 218, 357 S.W.2d 534 (1962), we set forth a topical approach test in interpreting the “unity of subject” clause. In dealing with an educational appropriation, we said, “we can find no limitation in the State Constitution that would prohibit the Legislature from treating all educational functions as one subject.” This act deals solely with the state judiciary. None of the undesirable practices such as “logrolling” or “pork barrel” legislation, which is the purpose of article 5, section 30, are present here. Unless we are preserving some other constitutionally protected interest, we should uphold the act. I would reverse.


author: Steele Hays, Justice. Darrell Hickman. Justice,

text:
    Kenneth and Jo TILLERY, et al v. MEADOWS CONSTRUCTION COMPANY
    84-147
    681 S.W.2d 330
    Supreme Court of Arkansas
    Opinion delivered December 17, 1984

      Pryor, Robinson if Barry, for appellants.

      Hardin, Jesson if Dawson, for appellees.
   Steele Hays, Justice.

Appellee, Meadows Construction Company, began work on an apartment complex on a tract of land joined on three sides by single family homes. Appellants, twenty-two of those adjoining homeowners, sought an injunction claiming the notice requirements of the zoning ordinance were not complied with. The Chancellor denied injunctive relief and appellants bring this appeal. We affirm.

Appellants’ principal contention is they were not given the required notice of a planning commission hearing on zoning changes which adversely affected their property. They cite Ark. Stat. Ann. § 19-2830 (Repl. 1980) and a Ft. Smith ordinance detailing the notice requirements of such a hearing. In addition to notice by newspaper publication provided for in § 19-2830, the city ordinance requires a mailing to all “adjacent” property owners.

In 1974 the city of Ft. Smith undertook a comprehensive revision of its zoning ordinance, which included additional residential classifications. Appellants concede the Planning Commission gave public notice by newspaper publication and held hearings on the rezoning plan. At these hearings the zoning ordinance at issue was discussed. The proposed ordinance increased the number of previous classifications and altered some of the existing classifications. The residential areas were divided as follows: R-2 into R-2-SFDP and R-2-MF, R-3 into R-3-SFDP and R-3-MF, and R-4 into R-4-SFDP and R-4-MF.

Prior to these changes appellants’ properties were zoned R-3. In the course of the hearings the Planning Commission decided to designate all property previously zoned R-2, as R-2-SFDP, all property previously zoned R-3, as R-3-MF and all property previously zoned R-4, as R-4-MF. At a later date areas were to be designated with the remaining new classifications. No property in the city was designated R-3SFDP.

Appellants argue that the mailing requirement for these hearings was not complied with and that no notice was given of the reclassification of their properties from R-3 to R-3-MF. We disagree that the ordinance entitled appellants to individual notice by mail of the hearing on zoning reclassification. A reasonable interpretation of the ordinance does not require a city-wide mailing when a comprehensive rezoning plan is contemplated. We think the language of the ordinance requiring the mailing of notice is intended to apply when a particular tract is being considered for rezoning. The ordinance states that in addition to notice in a newspaper of general circulation:

The proponent shall, at the time the petition is presented to the Planning Commission, deliver a copy of same to the Building Inspector listing therein, the following information: the legal description of the property proposed to be rezoned; the street address of the entire petitioned area; the present zone and the proposed zone, utilizing the words “industrial,” “commercial,” and the like, followed by the numeral, in lieu of the mere “1-3” and the like, and the names and addresses of all persons listed as the last record owners of property adjacent to the petitioned property, including property across the street and intersection and all owners within the petitioned area, and finally, the date that this petition will be heard by the Planning Commission. This information will be utilized by the Building Inspector by mailing post cards to all persons listed therein, notifying them of the public hearing on such change, and listing the street address of the property and the proposed change. (Our emphasis).

It would require a strained reading of this language to find a comprehensive zoning change necessitated notice by mail throughout the city and would result in a burdensome procedure. We are unwilling to reach that construction of the ordinance. Although zoning laws must be strictly construed in favor of the property owner, Blundell v. City of West Helena, 258 Ark. 123, 522 S.W.2d 661 (1975), that does not compel a contrived result when common sense points elsewhere. Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979). We will avoid resorting to a subtle or forced construction for the purpose of limiting or extending the meaning of a statute. Young v. Energy Transportation Systems, Inc. of Arkansas, 278 Ark. 146, 644 S.W.2d 266 (1983); Hicks v. Arkansas State Medical Board, 260 Ark. 31, 537 S.W.2d 794 (1976); City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977).

Turning to the argument that appellants were not notified of the change from R-3 to R-3-MF, we note first that for all practical purposes there was no change in appellants’ zoning. In effect, the ‘’rezoning” merely changed the name of the classification and not the substance of it. The appellee could have constructed the apartments under the R-3 classification as well as under the R-3-MF classification. R-3 permitted under general uses: single and two family homes, multi-family apartments, churches, community centers, public libraries, nursery schools, public and parochial schools and several other concerns. Under R-3-MF the general uses permitted are limited to single and two-family homes and multi-family homes. The other uses listed above under R-3 as general uses are conditional uses under R-3MF. Thus, there was so substantive change to the detriment of appellants, if anything, the property was upgraded by the reclassification and the appellee is doing no more than could have been accomplished under the former classification. Second, we believe there was sufficient notice of any changes that were made. Public notice was given for the hearings on the rezoning plans and so far as we can determine, these hearings were held and the contemplated zoning changes were discussed. Appellants make no showing to the contrary. The fact that during the course of the hearings the Planning Commission decided in essence not to make any change in any of the existing residential zoning areas in the city is not something that required additional notice. Not only were these hearings conducted to discuss precisely the reclassification that occurred, but no injury resulted from those changes which did occur. In fact, as we have said, the classifications may have been upgraded. Appellants do not argue the notice of the content of the hearings was misleading or insufficient, or that by the Planning Commission’s actions they would be precluded from seeking an upgraded zoning when such designations were made later. Nor have appellants cited any clear authority to support their argument.

Appellants further submit that appellee’s plat was not filed in accordance with the provisions of an applicable ordinance. The city platting procedure requires approval of the tentative plat before filing, which is subject to lapse if a final plat is not submitted within one year. In June 1980, the appellee received approval by the city but no final plat was filed until 1983. The record, however, does not bear out non-compliance and indicates substantial compliance. Before filing the plant in 1983, appellee sought re-approval from the city. There is nothing in the record to show whether approval was considered by the commission, but the record does show approval was granted, subject to certain conditions being met, by the director of the commission. It seems to have been determined that because nothing had changed since the original application, the approval was still valid subject to the appellee performing certain prerequisites, From a reading of the platting requirements, there is nothing that indicates they were not substantially complied with and appellants fail to point out how they were not. Nor do appellants show how this handling of the plat was injurious to them.

Appellants contend they were entitled to notice of the plat filing and building permit issuance. We know of no requirement that such notice be given and appellants have cited none and offer no persuasive argument as to why notice should be required for these steps when adequate notice of zoning changes has already been given.

Appellants concede the foregoing arguments, standing alone, could not prevail, but, when taken together, they urge this case reflects a series of governmental processes which conspired to effectuate a substantial injury to the single largest investment likely to be made by appellants, i.e. their homes. The cumulative effect, they believe, constitutes a denial of due process under the Fourteenth Amendment. The argument overlooks the fact that the zoning classification of R-3-MF, permitting multi-family development, was already in existence when at least nineteen of the twenty-two appellants purchased or built their homes, and those few who bought prior to the rezoning were notified by publication of the proposed change, a change which, as we have said, turned out to be essentially in name only. But here, appellee’s apartment complex would have been permissible under the R-3 classification, and inasmuch as appellants had already been put on notice that a proposed zoning change consistent with R-3 would be considered by the Planning Commission, the reclassification to R-3-MF involved no deprivation and required no due process beyond that which was given. Even if appellee’s tract had been zoned only for single family use when appellants’ chose their home sites, which is not the case, zoning changes are a permissible exercise of the police power of the states, and there are no guarantees against zoning variances or outright changes in zoning classifications. We have said due process requires at a minimum that a person be given reasonable notice and a reasonable opportunity to be heard before he can be deprived of his property by state action. Ingraham v. Wrights, 430 U.S. 651 (1977); Davis v. Schimmel, Trustee, 252 Ark. 1201, 482 S.W.2d 785 (1975); Dohany v. Rogers, 280 U.S. 362 (1930). The Chancellor found those opportunities were afforded in this case and we cannot say his findings were clearly against the preponderance of the evidence.

Affirmed.

Hickman, Purtle and Hollingsworth, JJ., concur.

Darrell Hickman. Justice,

concurring. I concur in the result which finds that the appellants could show no prejudicial error. I reserve my judgment on whether a city can change zones as it did with the notice it gave.

Purtle and Hollingsworth, JJ., join in this concurrence.


author: Steele Hays, Justice.

text:
    Cullen Reed HARRIS and Sandra Kay HARRIS v. STATE of Arkansas
    CR 84-121
    681 S.W.2d 334
    Supreme Court of Arkansas
    Opinion delivered December 17, 1984

      James E. Davis, for appellants.

      Steve Clark, Att’y Gen., by: Leslie M. Powell, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

We granted the petition of Cullen and Sandra Harris to review the decision of the Court of Appeals [See Harris and Harris v. State, 12 Ark. App. 181, 672 S.W.2d 905 (1984)], to decide whether an appellant who has challenged the sufficiency of the evidence, along with other assignments of error, is entitled to have that issued decided when the case is reversed and remanded on other grounds. The Court of Appeals declined to address the sufficiency argument since the case was reversed for procedural errors. That position was reaffirmed by a supplemental opinion denying appellants’ petition for rehearing. (12 Ark. App. at 189). We take a different view from the Court of Appeals, and, accordingly, we reverse.

Appellants, Cullen and Sandra Harris, were tried and convicted of manufacturing a controlled substance. They argued five points for reversal before the Court of Appeals, which found two reversible errors: 1) Failure of the trial court to grant a continuance to appellants when the state produced a witness for an out-of-court identification of one of the appellants, contrary to information supplied to the defense in pre-trial discovery; 2) refusal by the trial court to grant a mistrial when the prosecutor argued outside the record.

In their petition for rehearing, appellants contended that under Burks v. United States, 437 U.S. 1 (1978), the Arkansas Court of Appeals should have considered their challenge to the sufficiency of the evidence prior to considering other allegations of error.

In Burks the United States Supreme Court reconsidered its position with respect to a retrial when a case was reversed because of insufficiency of the evidence. The Court held the double jeopardy clause precluded a second trial when conviction in a prior trial was reversed solely for lack of evidence. For the purpose of determining whether the double jeopardy clause precluded a second trial after the reversal of a conviction, a reversal based on the insufficiency of the evidence was to be distinguished from a reversal for trial error. The court found that in holding the evidence insufficient to sustain guilt, an appellate court determines that the prosecution has failed to prove guilt beyond a reasonable doubt. Thus, it would defeat the purpose of the double jeopardy clause if the prosecution were afforded a second opportunity to supply evidence it had failed to muster in the first trial. We find under Burks the general rule would, as appellants submit, require a review of the sufficiency of the evidence prior to the consideration of trial errors.

Initially we point out that under Burks the sufficiency of the evidence should be reviewed even if other arguments are raised. The essence of the reasoning in Burks is based on the premise the prosecution has had one fair opportunity to offer whatever proof it could assemble and should not be given a "second bite at the apple.” Because of unfortuitous errors by the trial court and the defendant’s right to object to those errors, the defendant should not be precluded from a review of the sufficiency or, in the alternative, forced to gamble entirely on the sufficiency issue by electing to forego all other objections. For an appellate court to avoid the argument by reversing on other grounds would ignore the protection intended by the double jeopardy clause as interpreted in Burks. We find no cases in disagreement with this conclusion, and see United States v. Palzer, 731 F.2d 1848 (11th Cir. 1984).

The one distinction from the above cases raised in appel lan ts ’ argumen t is tha t the s ufficiency review bri ngs up consideration of admissible evidence. The only reason this distinction has arisen is because the Court of Appeals did not consider the sufficiency question first and since evidentiary error was found, it is clear when considering the sufficiency of the evidence we would be including a consideration of otherwise inadmissible evidence. Disregarding other possible trial errors to review the sufficiency first does not present this dilemma. Were we not to make such a review, the alternative is to avoid the sufficiency argument by remanding for retrial on the other grounds. But unless the reasons for a new trial are defeated by reviewing the sufficiency first, including the inadmissible evidence, generally the review should be granted. That is what Burks requires.

The reasons for retrial, as opposed to dismissal on reversible error, were stated in Burks. The opinion notes the distinction between trial error and evidentiary insufficiency, the former not barring retrial under the double jeopardy clause:

["Trial error does not constitute a decision to the effect that the government has failed to prove its case and implies nothing with respect to guilt or innocence of the defendant.”] Rather it is a determination that á defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g. incorrect receipt or rejection of evidence, incorrect instructions or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. Burks at 15.

The Burks court points out if acquittal is granted on the sufficiency argument the prosecution cannot complain of prejudice for it has been given one fair opportunity to offer whatever proof it could assemble. Id. at 16.

Although trial error does not constitute a decision that the state has failed to prosecute its case, neither does it preclude such a finding. The basis for retrial when there has been trial error would not be defeated by a decision to consider the sufficiency, including any erroneously admitted evidence, before considering reversal on other grounds. The defendant is not prejudiced by that method. He has as strong an interest in being acquitted by a review of the sufficiency as he does in having a new trial free from error. Neither is the prosecution prejudiced by such a determination, as it has had at least a fair opportunity to offer whatever proof it could assemble. It is not prejudiced by its reliance on the trial court’s erroneous ruling as the reviewing court would include that evidence in its deliberation. The review should be granted, therefore, because it is consistent with the rationale of Burks: ‘‘The double jeopardy clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials.” Burks at 11. ‘‘[T]he purposes of the clause' would be negated were we to afford the government an opportunity for the proverbial ‘second bite at the apple.’ ” Id at 17.

Turning to the case before us, we approach sufficiency of the evidence in the light most favorable to the appellee and the judgment is affirmed if there is a finding of substantial evidence to support the verdict. Substantial evidence, must do more than create a suspicion of the existence of the fact to be established and must be of sufficient force and character as to compel a conclusion one way or the other with reasonable and material certainty. It must induce the mind to pass beyond a suspicion or conjecture. Coleman v. State, 285 Ark. 359, -S.W.2d-(1984).

A summary of the evidence includes these facts: In February, 1982, when an owner of a self-storage rental unit detected chemical odors, the police investigated and confiscated a van stored in the unit. In the van were most of the chemicals and equipment used in the manufacture of metamphetamine, a controlled substance, and a trace of metamphetamine was found in three containers. An expired vehicle registration in the name of Sandra and Cullen Harris was found in the van. The record is not entirely clear, but either one or two fingerprints of Cullen Harris were found on two different articles in the van. No fingerprints of Sandra Harris were found but there was evidence that she had ordered costly chemicals from a chemical supply house, and she was identified as having been with an individual who made several purchases from another chemical company. While these circumstances might create suspicions the appellants were involved in the manufacturing process, the evidence does not compel the conclusion that appellants were manufacturing metamphetamine.

The only significant connection between the Harrises and the manufacturing of the metamphetamine was their ownership of the van, but other circumstances render even that proof doubtful as to its probative value. Had the van been found under other circumstances it might be possible to reach a more definitive conclusion, but there are too many indications that others had access to the van, thus casting doubts on the appellants’ access and control of the vehicle: the van’s registration had expired almost a year earlier, the storage unit was rented in someone else’s name; the owners of the rental units could not identify the appellants as having had anything to do with the rental procedure and during the several months of storage they had never seen appellants at the storage unit; of approximately one hundred items in the van tested for fingerprints, only one and possibly two prints were identified as those of Cullen Harris; none were found belonging to Sandra Harris and of many other prints found there was at least one other set and possibly as many as ten prints belonging to other individuals; a box top from one of the chemical supply houses found in the van had an invoice number stamped on it which was traced to an order made by a Bill Jenkins and which was to be picked up by a J.T. Thompson.

Aside from the fact that others had access to the van, appellants’ connection with any of the manufacturing apparatus and its operation was not shown. Other than the expired vehicle registration, Cullen Harris’ only connection with the manufacturing process was one or two fingerprints on articles in the van, and it was not shown that those articles were used in the manufacturing process.

Evidence of Sandra Harris’ connection is even less convincing. None of her fingerprints were found on any of the tested items in the van, and the other evidence produced by the state failed to establish any relationship to the manufacturer. Although a Sandra Harris was shown to have purchased chemicals from a supply house, there was no proof that it was the appellant, Sandra Harris. In any case, the chemicals purchased were not tied in any way to the manufacturing process — neither by the chemist’s testimony concerning the necessary ingredients nor by any of the chemicals found in the van. The fact that she was with someone who purchased chemicals is lacking in probative value, as the chemicals and equipment purchased were not .identified as any of those found in the van.

The connection of the appellants with the manufacturing process itself is further attenuated by the testimony of the state’s chemical expert that there was no way to determine from the traces of the chemical residue how long it had been since the manufacturing process had taken place. He testified the process would take several days to complete and required a large room, much bigger than the space inside the van or the storage unit itself because of the necessary ventilation. From the chemist’s testimony it appears impossible the process could ever have been accomplished inside the van or even in the storage building, and therefore, the time and place of manufacture were left to speculation, with no connection made to the appellants.

This case is not unlike Pollardy. State, 264 Ark. 753, 574 S.W.2d 656 (1978) where the defendant had been convicted of manufacturing marijuana by growing it in fields. There were a number of circumstances that tended to point to Pollard’s involvement, but nothing to show a legally sufficient connection. We said, “Certainly, there is plenty of evidence that something may have been going on of a suspicious nature. However, when we apply the law to the facts in this case, where is the evidence . . . that Pollard planted or cultivated this marijuana on the island? It is simply not there.” That description of the proof is equally applicable to this case. The equipment found indicated it had been used for the manufacture of metamphetamine but at some location other than the van. The expired registration indicated the appellants were the owners of the van, but all other evidence pointed to individuals other than the appellants as being involved in the manufacturing process. Nothing else of substance was produced to show appellants’ involvement. The evidence of guilt does not meet the test of substantial evidence.

The case is reversed and dismissed.


author: P.A. Hollingsworth, Justice. George Rose Smith, Justice,

text:
    MACHEN FORD-LINCOLN-MERCURY, INC. v. Barbara MICHAELIS
    84-172
    681 S.W.2d 326
    Supreme Court of Arkansas
    Opinion delivered December 17, 1984
    [Rehearing denied February 11, 1985.]

      W. Frank Morledge, P.A., for appellant.

      Killough & Ford, by: Robert M. Ford, for appellee.
   P.A. Hollingsworth, Justice.

On December 11, 1981, the appellee, Barbara Michaelis, issued a check for $19.56 to appellant, Machen Ford-Lincoln-Mercury, Inc., for repairs to her 1981 Ford Escort automobile. After driving the automobile for several miles, the same problem appellee had paid to have corrected reoccurred. She immediately returned to the Ford dealer and talked to the service manager, Don Smith, about the problem. The two of them were unable to reach a resolution on how the repairs were to be made. Before her check reached her bank, appellee stopped payment on the check because she contends the appellant did not perform the repairs to her automobile. It is undisputed at the time the stop payment was directed the appellee had $315 in her checking account.

When the check was returned to appellant Machen Ford by the bank, an agent of the appellant signed an affidavit alleging that appellee had violated the Arkansas hot check law Ark. Stat. Ann. § 67-720 (Supp. 1983), a misdemeanor under the facts of the case. A warrant was issued. When the case was presented for trial in the municipal court, appellee’s motion to dismiss the charge was granted.

In April 1982, the appellee brought this suit against the appellant automobile agency for malicious prosecution. The appellee pleaded mistake as a defense in that the Municipal Clerk did not understand that there was a stop payment on the check rather than an account with insufficient funds. After a jury trial, the appellee was awarded $20,000 in compensatory damages. It is from that decision that this appeal is brought. This case is before us under Sup. Ct. R. 29 (l)(o) as it presents a question in the law of torts. We affirm.

The only issue raised in this appeal is the failure of the trial judge to give the appellant’s requested jury instruction number one. That instruction is worded as follows:

If you find from a preponderance of the evidence that a representative of Machen Ford-Lincoln-Mercury, Inc., disclosed in good faith to a public officer all facts within its knowledge having a material bearing on the question of the guilt of persons suspected and left it to the office to act on his judgment as a public officer, whether there shall be a prosecution, it is not liable in an action for malicious prosecution by reason of the erroneous conclusion of the office that the facts warrant him in instituting a criminal prosecution.

The facts are that Doris Hartman, an employee of appellant, signed an affidavit stating: “I swear that Barbara Michaelis . . .did. . .commit the offense of violation of Arkansas Hot Check Law by tendering to Machen Ford a check in the sum of $19.56 for merchandise, money, or services.” Municipal Judge John Bridgforth signed the warrant for her arrest. It was established that the Municipal Judge’s policy was not to allow charges to be dropped or dismissed once affidavits and warrants had been issued. It was also established that a “Notice of Payment Stopped Check” was sent to Barbara Michaelis threatening criminal prosecution if the check was not honored.

The appellant argues that since a layman is not charged with knowing the law, he cannot be held responsible for a mistake of law if he truthfully states the facts to a public officer. The .question then according to the appellant, is whether there is sufficient proof that such a disclosure was made. The appellant maintains that the proof was that the appellant disclosed the fact that payment had been stopped on the check by supplying the check itself and by submitting the notice form on which “payment stopped” appeared. This proof was sufficient to have allowed the disclosure question to be submitted to the jury in the form of a jury instruction, according to the appellant.

We have held that “[t]he law is well settled that, where one lays all the facts in his possession before the public prosecutor, or before counsel learned in the law, and acts upon the advice of such counsel in instituting a prosecution, this is conclusive of the existence of probable cause, and is a complete defense in an action for malicious prosecution.” L.B. Price Mercantile Co. v. Cuilla, 100 Ark. 316, 141 S.W. 194, (1911). In Cuilla, the evidence showed that the complainant went before a deputy prosecuting attorney before he filed suit and acted upon his advice in deciding to sue. Similarly, in Laster v. Bragg, 107 Ark. 74, 153 S.W. 1116 (1913), the complainant consulted a judge who sent him to a prosecuting attorney before he filed suit. The complainant then acted upon the advice he was given. See also Malvern Brick & Tile Co. v. Hill, 232 Ark. 1000, 342 S.W.2d 305 (1961), where an attorney was consulted before charges were filed. The rationale for this rule was explained in Kansas & Texas Coal Co. v. Galloway, 71 Ark. 351, 74 S.W. 521 (1903), where we said:

It may perhaps turn out that the complainant, instead of relying upon his own judgment, has taken the advice of counsel learned in the law, and acted upon that. This should be safer and more reliable than his own judgment, not only because it is the advice of one who can view the facts calmly and dispassionately, but because he is capable of judging of the facts in their legal bearings. A prudent and cautious man is therefore expected to take such advice; and when he does so, and places all the facts before his counsel, and acts upon his opinion, proof of the fact makes out a case of probable cause, provided the disclosure appears to have been full and fair, and not to have withheld any of the material facts.
That a prosecution was begun or a civil suit instituted under advice of counsel is frequently referred to as a complete defense to an action for malicious prosecution. This rule has been held to apply, although the facts stated to counsel did not warrant the advice given, or though the facts did not, in law, constitute a crime, or however mistaken or erroneous were the opinion expressed by the counsel and the course advised, (citation omitted).

In this case, the general rule does not apply because the appellant company did not consult either an attorney or a prosecutor before filing charges. In Kable v. Carey, 135 Ark. 137, 204 S.W. 748 (1918), we held that it was not a defense to a suit for malicious prosecution when the complainants claim they relied in good faith upon the advice of a justice of the peace after making a full and fair disclosure of the facts to him. In that opinion we reiterated the general rule, supra, and explained that because a justice of the peace is not necessarily a lawyer and has no duty to advise prospective litigants, “[tjhey are not usually learned in the law and on that account can not be safe advisers on important legal questions.” The same rationale applies to municipal court clerks. We feel where it is shown that the officer is not expected to exercise his: judgment and responsibility as a public officer, the defendant is responsible for the officer’s subsequent acts. The facts here indicate that once the agent swore to a statement that the appellee had violated the hot check law,... the warrant was issued to be signed by the judge. It was well established that the policy of the court was not to recall or dismiss charges once warrants were issued. There is a valid public policy reason for this as the municipal court is not to serve as a collection agency for private merchants. The fact that the judge signed the warrant should not be a defense since the policy of the law forbids a magistrate to act as an attorney, or give advice in regard to a prosecution intended to be instituted before him. This is the general rule in this country. 52 Am Jur 2d Malicious Prosecution § 89 p. 243-44 (1970).

Under the facts of this case, we hold that in an action ;for malicious prosecution, the defendant cannot justify his action in instituting the prosecution by pleading that he relied in good faith on the advice of a clerk of court and judge.

It was not error to refuse to give the instruction.

Affirmed.

Smith, George Rose and Purtle, JJ., dissent.

George Rose Smith, Justice,

dissenting. The majority states the facts fairly, but I do not agree with the conclusion that is reached in the case.

The opinion rests essentially on our holding in Kable v. Carey, a 1918 case, and on a sentence in American Jurisprudence, both cited to support the view that the appellant had no right to rely on a municipal court clerk for legal advice. In Kable we said: “A complainant may know the facts but not the law. Therefore he may obtain advice upon the latter from one learned in the law and be protected though a mistake be made by the legal adviser.” (My italics.) We pointed out that Kable was not protected in relying upon the advice of a. justice of the peace, because justices of the peace “are not usually learned in the law and on that account can not be safe advisers on important legal questions.” The American Jurisprudence citation echoes that view, stating that a complainant cannot “rely on the advice of a justice of the peace or magistrate, who is not usually learned in the law.” Only two cases are cited to support that statement. One is the Kable case. The other is a similar holding in Finn v. Frink, 84 Me. 261, 24 Atl. 851 (1892), where the complainant relied on the advice of a “trial justice,” but the Maine court said: “We know that trial justices are not learned in the law, nor safe advisers on important legal questions.” That is the identical phrase used in Kable.

Under our Criminal Procedure Rule 7.1 (b) an arrest warrant may be issued by a judicial officer if “from affidavit . . . it appears there is reasonable cause to believe an offense has been committed.” “Judicial officer” is defined in Rule 1.6 (c). Forrest City, where the warrant was issued, had a population of 13,803 in 1980. Its municipal judge, therefore, is required to be “learned in the law,... an attorney at law. in good standing, and shall have practiced law at least six years.” Ark. Stat. Ann. § 22-704 (Repl. 1962). This warrant was issued by Judge John D. Bridgforth, whom we know from our own records to be a practicing lawyer admitted to the bar in 1967.

The majority opinion says that the appellant should have taken the $19.56 check, on which payment had been stopped, to a lawyer or the prosecuting attorney. A lawyer would probably charge more than the amount of the check for 15 minutes of his time. Prosecutors do not file informations in trivial cases. The appellant’s employee, Doris Hartman, went exactly xvhere she was entitled to go, to the municipal clerk’s office. The clerk testified that her office handles 1,500 to 2,000 bad checks a year and that as many as 50 warrants, accompanied by copies of the checks, might be on Judge Bridgforth’s desk at one time, awaiting his signature.

The clerk attempted to assume full responsibility for the error. She knew that stopping payment on a check is not a criminal offense but a civil matter. She said it was the practice of the office not to process stopped-payment checks. She or someone in her office saw the check and made a copy of it. The check was stamped with the words PAYMENT STOPPED diagonally across its face, in large letters. She said a mistake was made. She supplied and filled out the printed form of affidavit stating that the appellee had violated the Hot Check Law. She notarized it. All Ms. Hartman did was to give correct information, produce the original check, and sign the affidavit.

All the foregoing facts were properly placed before the jury by the appellant. They were, however, to no avail, because the trial court refused to submit the appellant’s defense in a requested instruction which I regard as a correct statement of the law. This is not a case in which the complainant relied on someone not learned in the law. Judge Bridgforth is learned in the law. A mistake was made by him, by his employee on whom he relied, or by both. We said in Kable that the complainant is protected “though a mistake be made by the legal adviser.” Here the appellant is subjected to a $20,000 judgment without its defense even having been considered by the jury. It seems to me to be a miscarriage of justice, to be corrected by a new trial before a properly instructed jury.

Purtle, J., joins in this dissent.


author: P.A. Hollingsworth, Justice.

text:
    Christopher Scott EDWARDS, a minor, by and through his father and next friend, Robert Lloyd EDWARDS; Randy MOORE and Cindy MOORE, by and through their mother and next friend, Diane MOORE v. Janie VAUGHT
    84-239
    681 S.W.2d 322
    Supreme Court of Arkansas
    Opinion delivered December 17, 1984
    [Rehearing denied January 21, 1985.]

      Wright ir Chaney, P.A., by: Donald P. Chaney, for appellant.

      Rose Law Firm, A Professional Association, by: Phillip Carroll, for appellee.

      Purtle, J., would grant rehearing.

   P.A. Hollingsworth, Justice.

The issues presented by this appeal all involve a will contest. The appellants are the step-great-grandchildren of the decedent, Austin Napoleon Davis. On August 31, 1981, at the age of 90, the decedent wrote his first will which named the appellants as beneficiaries. Ten days later, on September 10,1981, the decedent wrote a second will which named the appellee, his next door neighbor, as the sole beneficiary. The decedent died on October 10, 1982, and the second will was admitted to probate. The appellants filed a petition to contest the probate of the second will and also filed a companion case in Chancery Court to remove the appellee’s name from two certificates of deposit that were owned by the decedent. The cases were consolidated for trial and the trial judge found that the second will was valid and that the certificates of deposit were not void. It is from that decision that this appeal is brought. This appeal is before us under Sup. Ct. R. 29 (1) (p).

The appellants raise numerous issues on this appeal, all of which basically involve the decedent’s alleged lack of testamentary capacity and the exercise of undue influence by the appellee in procuring the testator’s will.

Davis, the testator, married Florence Edwards in 1960. He had two children by a previous marriage with whom he had no contact for the last thirty years of his life and for whom he made no provision in either will. Mrs. Davis had two children by a prior marriage also. The appellents are her great-grandchildren through her son.

Considerable testimony was given about the close family relationship between the Edwards family and Davis. All the families lived in the vicinity of each other and spent many holidays and vacations together. The great-grandchildren were brought to spend time with Davis and his wife frequently. Mrs. Davis died in August 1981.

The appellee and her husband were next door neighbors of Florence and Austin Davis for about ten years. Testimony showed that they spent many evenings with the elderly couple, visiting and playing games. Shortly before Mrs. Davis died, the appellee began looking in on the decedent and mowing his lawn for him. In June 1981, a social worker made an official arrangement with the appellee whereby she would provide meals and general care for the decedent in exchange for $35 a week. This arrangement continued until Davis’ death.

The circumstances surrounding the making of the first will were as follows: Robert Lloyd Edwards, the father of the appellant, Christopher Scott Edwards, testified that the decedent asked him to recommend a lawyer. At Davis’ request, Edwards took him to see Jimmy Featherston, a lawyer in Murfreesboro. On the way there, Edwards testified that Davis told him he intended to leave his estate to Christopher and to Edwards’ sister’s children because “he said that he wanted to favor” his step grand-children without directly giving them anything as he said they did not need it. Edwards, accompanied by his father, Robert C. Edwards, helped Davis into the lawyer’s office and the three sat around Featherston’s desk while Davis made out a will. Edwards testified that he acted as an interpreter for Davis, who was hard of hearing, by repeating Featherston’s comments to Davis. After the will was prepared, Davis signed it and paid Featherston. The will, written August 31, 1981, stated: “I give my entire estate to Christopher Scott Edwards, Randy Moore, and Cindy Moore, per stirpes.” Edwards testified that Davis kept a copy of the will and he kept the original. The only time Edwards said that Davis mentioned the will after that was at the next Christmas when Davis said, “Won’t the children be surprised when they learn what I’ve done for them.” The Edwards family discovered the existence of the second will shortly before the testator died.

The second will was drawn up ten days after the first will. Kenneth Vaught, the appellee’s husband, testified that toward the end of the first week of September 1981, Davis spoke to him about making a new will. He testified that Mr. Davis said, ‘ ‘I don’t have much but I have a little. But, I want to leave it to somebody that helps me.” Vaught testified that he told the testator he and his wife did not want anything in return for caring for him, but Davis insisted and asked Vaught how he “wanted it to go.” Vaught stated that he told him to put it in his wife’s name since she would be caring for the testator more thari he would. Vaught also stated that he told the testator to wait until the next day and make sure that that was still what he wanted and, if it was, Mrs. Vaught would take him to a lawyer. The only reason Davis gave, according to Vaught, for his actions was that the Edwards family did not care anything about him and he did not want them to have his money.

The day after the testator’s statements to Vaught, Mrs. Vaught took Davis to Featherston, the same lawyer, to write a second will. She did not stay in the room when the will was written but rather left the testator alone with Featherston.

The second will reads as follows:

I, Austin Napoleon Davis, . . . being mindful of my children and descendants and being of sound and disposing mind and memory do hereby make and publish this my last will and testament revoking all prior wills made by me and especially revoking that will I made a few days ago. ... 2.1 give my entire estate to my neighbor who has looked after me and fed me ever since I have lived at Murfreesboro, Mrs. Janie Vaught ...”

For this appeal, the appellants claim generally that the trial court’s decision was against a preponderance of the evidence and was clearly erroneous. Specifically they argue that undue influence was presumptively established by the evidence since a confidential relationship existed between the decedent and the appellee; the appellee procured the making of the second will; the decedent suffered from mental and physical infirmities; and the second will made an unnatural disposition excluding the natural objects of the decedent’s bounty. The appellants also claim that the. appellee failed to rebut the presumption of undue influence after the burden of proof shifted to her and that the decedent suffered from an insane delusion when the second will was procured.

We review probate and chancery cases on appeal de novo and affirm the probate judge or chancellor unless the order is clearly erroneous. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). The burden of proving undue influence or lack of mental capacity is on the party challenging the validity of the will, the appellants here. Rose, supra. We said in Rose that when a will is procured by the primary beneficiary, “a rebuttable presumption of undue influence arises which places on the beneficiary the burden of proving beyond a reasonable doubt that the testator enjoyed both required mental capacity and freedom of will.”

Here, there was no direct evidence that the appellee procured the will. She did not participate in the writing of the will and merely transported the decedent to the lawyer’s office. The trial judge therefore correctly placed on the appellants the burden of proving the testator’s mental incompetency and any undue influence exercised by the appellee.

We defined undue influence in Greenwood, Guardian v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979), as:

[N]ot the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause deprives the testator of his free agency in the disposition of his property. And the influence must be specifically directed toward the object of procuring a will in favor of particular parties. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relation with them at the time of its execution.

See Short v. Stephenson, 238 Ark. 1048, 386 S.W.2d 501 (1965); Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963).

Furthermore, we pointed out in Rogers v. Crisp, Ex’x, 241 Ark. 68, 406 S.W.2d 329 (1966), that:

[I]t is well settled that influence, consisting of appeals, requests, entreaties, arguments, flattery, cajolery, persuasion, solicitations, or even importunity is legitimate and becomes “undue,” so as to invalidate the will, only when it is extended to such a degree as to override the discretion and destroy the free agency of the testator.

There is no evidence of that here. The chancellor was in a superior position to judge the witnesses’ credibility. We cannot say that his finding that the appellants failed to prove undue influence by a preponderance of the evidence is clearly erroneous.

As to the decedent’s testamentary capacity, the fact that the wills were executed in such a short time span is an important factor. In Union Nat’l Bank v. Leigh, 256 Ark. 531, 509 S.W.2d 539 (1974), two wills and a codicil were executed one year apart. We stated, “[i]f there had been any such abrupt cessation of testamentary capacity, we should expect it to be reflected in the testamony of the two doctors . . . There is, however, no such testimony.”

Similarly, here the decedent’s physician testified that his mental condition varied in that sometimes he was a little confused and sometimes he was “pretty clear.”

In Rogers, supra, we stated that:

It is not unusual for some member of a family to feel that he has been mistreated by other members of the family, and, whether right or wrong, it is apparent that Lewis had “fallen out” with his sister. Nor can it be said to be abnormal or unnatural for a testator, without wife and children, to leave property to a good friend rather that to a collateral relative.

In Sullivant v. Sullivant, supra, we stated:

Capacity to understand the effect of making one’s will, and not actual understanding is the test of mental capacity required of the testator . . . Testators are not required by law to mete out equal and exact justice to all expectant relations in the disposition of their estates by will, and the motives of partiality, affection, or resentment, by which they naturally may be influenced, are not subject to examination and review by the courts.

Here, the fact that Davis had the capacity to understand the effect of his second will is demonstrated by the language, “revoking all prior wills and especially that one I made a few days ago.” And as stated above, the fact that the appellants expected part of the estate and the testator disappointed them is not subject to judicial examination and review. The chancellor found that the testator had the requisite capacity and that finding is not clearly erroneous.

This same principle was stated in Abel v. Dickinson, 250 Ark. 648, 467 S.W.2d 154 (1971), where we said:

The expression “unjust and unnatural will” is usually applied when a testator leaves his estate, or a large portion of it, to strangers, to the exclusion of natural objects of his bounty without any apparent reason. A will cannot be said to be unnatural because a testator preferred one for whom she had developed a close and affectionate relationship ... or when the natural objects of the testator’s bounty are in no need of funds, aid or assistance.

As to the insane delusions that appellants claim the decedent experienced, we stated in Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981), that an insane delusion is:

Where one conceives something extravagent, and believes it as a fact, when in reality it has no existence, but is purely a product of the imagination, and where such belief is so persistent and permanent that the one who entertains it cannot be convinced by any evidence or argument to the contrary, such a person is possessed by an insane delusion . . .
Such a delusion must not only exist but the will must be a product of the delusion . . .If there is any basis in fact for the delusion, or if it is not proved that the will was a product of the delusion, such a delusion will not warrant setting aside a legal document.

We also stated in Huffman that there was conflicting evidence about the presence of an insane delusion, it was the role of the probate court to resolve the conflict. The appellants contend that the testator’s statement that the Edwardses did not care about him was an insane delusion; the probate court was in the better position to resolve such a contention.

The appellant’s remaining points on appeal are that the appellee should not be allowed to profit by her wrongful acts in causing the death of the decedent and that the certificates of deposit were void because of the fraud and undue influence exercised by the appellee. The first argument is without merit. We also uphold the chancellor’s finding that there was no fraud or undue influence by the appellee as regards the certificates of deposit and that they are therefore valid.

Affirmed.

Hubbell, C.J.„ not participating.


author: Richard N. Moore, Special Justice. Webb Hubbell, Chief Justice,

text:
    DIAMOND SHAMROCK CORPORATION v. John HARRIS and Betsy HARRIS ARKLA, INC., Crossappellee and Cross-appellant
    84-83
    681 S.W.2d 317
    Supreme Court of Arkansas
    Opinion delivered December 17, 1984
    [Rehearing denied January 28, 1985.]

      Warner é1 Smith, for appellant.

      McMath Law Firm, P.A., for appellees and cross-appellants Harris.

      Daily, West, Core, Coffman & Canfield, by: Jerry Lee Canfield and Douglas M. Carson, for cross-appellee Arkla, Inc.
   Richard N. Moore, Special Justice.

This case orb ginated as a suit by John Harris and Betsy Harris, herein referred to as “Harris”, against Diamond Shamrock Corporation and Arkansas Louisiana Gas Corporation, referred to as Arkla, Inc., and is before the Supreme Court of the State of Arkansas pursuant to Rule 29(1) (n). The subj ect of Appellee Harris’ complaint was an oil and gas lease executed between Harris and Diamond Shamrock on July 1, 1977, involving certain acreage purchased in May of 1974 and owned by Harris. At the time the oil and gas lease between Diamond Shamrock and Harris was executed, there was in existence a long-term gas purchase contract between Appellant Diamond Shamrock and Arkla, Inc., that had been executed on December 7, 1971, and covered an area which included the Harris property. By the terms of the long-term gas purchase contract, Arkla agreed to purchase at a specified price the gas produced by Diamond Shamrock from wells in several counties, including the area in Pope County, Arkansas, where the Harris lands are located. When Harris purchased the property in May, 1974, an abstract of the property was prepared but did not include nor reveal the existing long-term gas purchase contract between Diamond Shamrock and Arkla, Inc. Harris later discovered that a recording supplement, evidencing the material terms of the long-term gas purchase contract, had been recorded in the records of the Circuit Clerk of Pope County on December 15,1971, but appeared nowhere in his chain of title.

Subsequent to the purchase of the property involved herein, Harris executed an oil, gas, and mineral lease on July 1,1977, with Diamond Shamrock, this lease included, along with other acreage, the thirty-four (34) mineral acres located in Section 10, Township 9 North, Range 20 West, in Pope County, Arkansas, belonging to Harris. Unknown to Harris at that time, this area was also included by the terms of Diamond Shamrock’s 1971 gas purchase agreement with Arkla, Inc.

The gas lease contract between Harris and Diamond Shamrock was represented to Harris by Diamond Shamrock to be the same standard form that was used with other property owners in the area and contained the royalty clause as follows:

“Lessee shall monthly pay lessor as royalty owned gas, including casing head gas, and other gaseous substance produced from said land and sold or used off the premises, or for the extraction of gasoline or other products therefrom, the market value at the well of one-eighth of the ga^ so sold or used, provided that on' gas sold at the wells, the royalty shall be one-eighth of the amount realized from such sale.”

It is this clause that sets the price that Appellant Diamond Shamrock has contracted to pay Harris under their lease for any gas produced from the Harris property. The Appellant asserts that the market value, referred to in the quoted royalty clause, was actually established prior to the time of the 1977 lease agreement between Diamond Shamrock and Harris by the terms of the 1971 gas purchase agreement between Diamond Shamrock and Arkla, Inc. The agreement set the price that Arkla, Inc. would pay to Diamond Shamrock for gas produced and supplied from the area that included the property owned by Harris.

Harris alleged in the trial court that the amount he receives from Diamond Shamrock for the gas attributable to his property should not be set by the gas purchase contract between Diamond Shamrock and Arkla, Inc. Harris asks that his compensation be set by the market value of one-eighth of the gas produced as stated in his lease agreement with Diamond Shamrock or, in the alternative, that the court grant a cancellation of the gas lease between Harris and Diamond Shamrock due to Harris’ lack of notice of the 1971 gas purchase agreement at the time he entered into the lease agreement with Diamond Shamrock.

On November 14, 1983, the trial court held:

1. That the gas purchase contract between the Defendant Diamond Shamrock Corporation and Arkla, Inc., formerly Arkansas Louisiana Gas Company, executed on the 7th day of December, 1971, is not applicable to Plaintiff’s oil and gas lease executed to Diamond Shamrock Corporation on the 1st day of July, 1977.

2. That the pleadings are amended to conform to the proof and the Court finds that the oil and gas lease between Defendant Diamond Shamrock Corporation and Plaintiffs Harris provides for Plaintiffs to be paid monthly, as royalty on gas, one-eighth (1/8) of the market value thereof.

3. The best evidence of the market value is the price paid other paticipants in the Lynch No. 1 Well, as shown in Plaintiff’s Exhibit No. 15, which stated that the other participants as of January 5,1983, were being paid N.G.P.A. Section 102 3.249 cents/M.M.B.T.U.

4. Plaintiffs are not entitled to cancellation, but are entitled to performance of their oil and gas lease, just as if the gas purchase contract aforementioned did not bind them in any way.

5. Plaintiffs are entitled to an accounting for past due royalties at the market value, as determined'by what the other participants were paid on the same well as set out in Plantiffs’ Exhibit No. 15, which indicates that they were being paid N.G.P.A. Section 102 3.249 cents/M.M.B.T.U., as of the 5th day of January, 1983.

6. That Defendant Diamond Shamrock Corporation will pay Plaintiffs Harris future royalties at the same rate the aforementioned participants are being paid.

7. That Defendant Diamond Shamrock Corporation shall pay Plaintiffs Harris accrued interest at the rate of ten percent (10%) per annum on all past due royalties from the date they should have been paid.

8. That there is no contractual relationship between the Plaintiffs and the Defendant, Arkla, Inc., so that the Defendant, Arkla, Inc., is not responsible, nor is it obligated by any of the findings and orders made by this Court in favor of the Plaintiffs against the Defendant Diamond Shamrock.

9. The Plaintiffs shall have a lien on the oil and gas lease aforementioned and the gas produced therefrom to secure payments of past and future royalties, and said lien shall apply to both Defendant, Diamond Shamrock and Arkla, Inc.

10. This Court shall retain jurisdiction for accounting of the past due royalties and enforcement of this Order.

Diamond Shamrock contends on appeal that the trial court committed error when it found that Appellant’s royalty obligation was the market value of one-eighth (1/8) of the gas attributable to Appellee Harris’ lands and that the determination of this market value should not be anything other than the amount paid Diamond Shamrock for the gas produced from Appellee Harris’ land pursuant to the long-term gas purchase contract between Diamond Shamrock and Arkla, Inc. Appellant Diamond Shamrock also asserts that any other interpretation of the lease agreement actually rewrites the contract for the parties and, is therefore error. Appellees Harris cross appealed the trial court’s denial of their request for cancellation of the contract. Appellees Arkla, Inc. cross appealed the trial court’s refusal to dismiss Arkla, Inc. from the original lawsuit.

Appellee John Harris asked the representative of Diamond Shamrock specifically about the terms of the oil, gas, and mineral lease that Harris executed with Diamond Shamrock during his negotiation of the lease. His inquires were to determine if there was anything unusual about this particular lease in comparison to the leases Diamond Shamrock had previously executed with other lessors in the same area and Unit. Diamond Shamrock assured Harris that it was a standard lease and that the terms and provisions were not different or unusual. As aforementioned, Harris executed this lease in July, 1977, without knowledge that Diamond Shamrock had previously entered into the long-term gas purchase contract with Arkla, Inc. in December of 1971. Further, the Harrises had no reason to be on notice of that particular contract since though it was recorded, it was not in their chain of title and they had no reason to search nor manner by which to discover this contract. In Tisdale v. Gunter, 194 Ark. 930, 109 S.W.2d 1267 (1937), it states:

If one, to prove his title, must rely upon and make proof of a deed or decree to establish a title, then it is a link in the chain of title, and he is affected with notice thereof, whether he has knowledge or not and regardless of the fact that it may not be of record. If, to establish a title, it is not essential to prove and rely upon a deed of record, it is not a link in the chain of title, and in these circumstances one is not bound by the recitals of a deed or decree, unless he has actual knowledge thereof.

See also, Criner v. Ritchie, 212 Ark. 815, 208 S.W.2d 447 (1937).

The memorandum of the gas purchase contract between Diamond Shamrock and Arkla, Inc. that was recorded in 1971 was not notice to the Appellees Harris.

Appellant Diamond Shamrock prepared the oil, gas and mineral lease agreement that was executed between itself and Harris and included in this Agreement the language in the royalty clause which contained the reference to “market value”. During the time period that Harris and Diamond Shamrock were negotiating the lease agreement, there was never any attempt on the part of Diamond Shamrock to inform Harris of the gas purchase agreement with Arkla nor was there any explanation of why the pricing standard of the gas purchase agreement was not included in the royalty clause of the lease agreement. If Diamond Shamrock was relying upon the pricing standard found in the 1971 gas purchase agreement with Arkla, Inc., then this price should be clearly referred to in the lease agreement royalty clause. To hold otherwise would place Harris in the unfair position of being compensated for the gas produced from his property by a contract to which he was not a party nor had any notice of when negotiating his lease with Diamond Shamrock. This very gas purchase agreement that Diamond Shamrock attempts to rely on requires that Diamond Shamrock give specific reference and include notice to any other party with whom it might contract who would be covered by the gas purchase agreement. Diamond Shamrock not only failed to include this notice by specific reference in its lease agreement with Harris, it failed to disclose the prior agreement when questioned by Harris during the oil and gas lease negotiations. The royalty clause states that the valuation is to be made by the market value of one-eighth of the gas sold attributable to the Harris lands. If there is any uncertainty,, then this obligation should be resolved in favor of Harris against Diamond Shamrock, the party that drafted the instrument. Bradley v. Arkansas Louisiana Gas Company, 280 Ark. 492, 659 S.W.2d 180 (1983). Shelty v. Benton Savings & Loan Association, 279 Ark. 275, 651 S.W.2d 71 (1983); Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532(1974).

Arkla, Inc. cross appealed on the issue that the trial court was in error for denying Arkla’s motion to dismiss. Due to the fact that the Appellant Diamond Shamrock based the royalty payments that it was obligated to pay Harris upon the 1971 gas purchase agreement with Arkla, we hold that Arkla was properly included in the original lawsuit pursuant to Rule 19 of the Arkansas Rules of Civil Procedure.

For the reasons stated above, the trial court’s decision is affirmed on direct appeal and because of this holding, it is unnecessary to deal with the other issues raised on appeal.

Hubbell, C.J. and Dudley, J. dissent.

Hollingsworth, J., not participating.

Webb Hubbell, Chief Justice,

dissenting. The majority first ignores that the gas purchase contract between Diamond Shamrock and Arkla was of record in Pope County, Arkansas when the Harris lease was executed. The public records disclose the fact that the contract would cover the Harris’s lands. Although the contract was perhaps technically not in their chain of title, the Harrises were constructively notified of its existence.

The majority also ignores the plain meaning of the lease. First the gas was sold at the well. Butler v. Exxon Corp., 559 S.W.2d 410 (Tex. Ct. App., 1977); Skaggs v. Herd, 172 F. Supp. 813 (D.C. Tex., 1959). The lease provides that for gas sold at the wells, the royalty shall be one-eighth the amount realized from the sale. That is exactly what Diamond Shamrock paid the Harrises.

Apparently, the majority is finding the Harrises defrauded by Diamond Shamrock. This is contrary to the findings of the trial court. Had the court found otherwise, the trial court would have awarded rescission as requested by the Harrises. I certainly find nothing in the record or in the majority opinion which indicates that the chancellor was clearly erroneous on that issue.

I would reverse on direct appeal.

Dudley, J., joins in this dissent.