author: Conley Byrd, Justice.

text:
    William H. STALLINS v. STATE of Arkansas
    CR 73-3
    491 S.W. 2d 788
    Opinion delivered March 26, 1973

      Michael G. Rothman, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Frank B. Newell, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

The trial court without a formal hearing denied appellant William H. Stallins’ petition for post conviction relief from a 20 year sentence on a guilty plea to assault with intent to rape. The trial court’s action was proper under Criminal Procedure Rule No. 1 (c). See also North Carolina v. Alford, 400 U.S. 25 (1970).

The record shows that after an original plea of not guilty to a charge of first degree rape there was some negotiation between appellant’s employed counsel and the prosecuting attorney. On January 26, 1970, the State reduced the charge to assault with intent to rape but the trial court would not accept appellant’s plea because he stated that he used no force and that the girl consented. Thereafter the State amended the information to again charge first degree rape. February 1, 1970, appellant again requested that he be permitted to plead guilty to assault with intent to rape. Before accepting the plea and sentencing appellant to twenty years in the Department of Corrections, the trial court not only satisfied himself that appellant was voluntarily pleading guilty to a crime he had committed but caused a record to be made of the proceedings had. This record clearly demonstrates that there is no merit to the many contentions that appellant now makes.

Affirmed.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    NATIONAL CREDIT CORPORATION v. J. T. RITCHEY
    5-6225
    491 S.W. 2d 811
    Opinion delivered March 26, 1973

      Dickey, Dickey & Drake, Ltd., for appellant.

      Jones, Matthews & Tolson, for appellee.
   Frank Holt, Justice.

The appellee initiated this action against the appellant to recover damages for personal injuries allegedly caused by appellant’s negligence. A jury awarded him $37,500. Appellant, in support of its motion for a new trial, offered into evidence the affidavit of one of the jurors (there were other juror affiants) suggesting that the verdict was reached by lot. The trial court, concluding that it had no authority to accept the proffered affidavit, held it inadmissible and denied the motion for a new trial. On first appeal, we reversed and remanded “with instructions to accept the affidavits or hear testimony in connection with the appellant’s petition for a new trial and grant or deny the motion as the proof may require.” National Credit Corporation v. Ritchey, 252 Ark. 106, 477 S.W. 2d 488 (1972). On remand the trial court, after hearing the testimony of eight of the jurors, determined that the verdict was not arrived at by lot and, accordingly, again denied appellant’s motion for a new trial. Appellant first contends for reversal that the verdict was reached by lot. We must affirm the trial court’s finding on this issue of fact since there is supporting substantial evidence.

Of course, when a verdict is made by lot, the verdict should be set aside and a new trial granted. Ark. Stat. Ann. § 43-2204 (1964 Repl.). In National Credit Corporation v. Ritchey, supra, we distinguished a quotient verdict from a verdict by lot:

“When each juror first arrives at the amount he thinks the verdict should be and makes known that amount to the other jurors, if the jury then adds the amounts and divides the sum by their number and agree on the result as the jury verdict, then the verdict so made is a quotient verdict. While we in no wise approve of such procedure, a verdict so made cannot be later impeached by the testimony of a member of such jury. Where such procedure is agreed to by the jury in advance before each juror determines and reveals what amount he thinks the verdict should be, a verdict so made is no longer a mere quotient verdict, but amounts to a verdict by lot and each juror is in a position to control the odds.”

It appears that after deliberating for approximately 2 hours and 40 minutes, the jury was unable to agree. The court then instructed the jurors to continue their deliberation. A verdict was reached after further discussion of approximately 40 minutes. It is undisputed that the $37,500 verdict was reached by a quotient process. A blackboard in the jury room reflected that the jurors assessed appellee’s damages as follows: $100,000— 2; $25,000 — 8; $50,000 — 1; none — 1; the total of $450,000 was divided by 12 which resulted in the $37,500 verdict. In contending that the verdict was reached by lot, appellant asserts that at least five of the jurors testifiéd at the hearing “that the jurors agreed in advance to be bound by the results of the quotient process, and all of them signed the verdlctN Even if this be true, although some of their testimony is contradictory, there is other testimony that indicates that no such agreement was made to produce a verdict by lot. For instance, as abstracted, one juror stated “[A]fter it was deadlocked and we could-n’t make no decision, we waited and everybody decided, then we wrote it down and then passed it around to one another and everybody seen it and then the lady took it and went to the blackboard and I believe she multiplied and then divided it.” This juror testified that “after she figured on the blackboard then we all agreed on it.” Further, “[T]his was the only agreement” and “[T]here was no agreement prior to putting it down.” Another juror, as others, testified that they had great difficulty in reaching a verdict because some wanted figures that varied from $250,000 to nothing. This juror testified on cross-examination that she recalled the amounts had been written down several times and they had turned them in to the foreman. However, there were not enough agreeing on the same amount to render a verdict. In answer to a question as to whether she considered it a fair verdict, she stated “I voted for it.” Another juror testified that the jury had voted several times and kept “cutting the figure down.” Also, he knew the amounts that were being suggested by each member of the jury and his figure was known to the other members. Also, before the numbers were written on the board they were discussed three or four times and that he voted for the verdict. He further testified that he did not and would not have agreed in advance to be bound by “the final amount.” He voted to accept the $37,500 verdict after it was written on the board. There was other corroborating testimony that “the final amount” was voted and agreed upon after its determination.

The burden of proof was on the appellant to convince the trial court, the fact finder, by a preponderance of the evidence that it was a verdict by lot and not a quotient verdict. The determination of the preponderance was solely within the province of the trial court and on appeal it is well settled that we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee and we must affirm if there is any substantial evidence to support the trial court’s findings. Washington Natl. Ins. v. Meeks, 252 Ark. 1178, 482 S.W. 2d 618 (1972). There we said:

“***As indicated, it is well established that on appeal in determining the sufficiency of the evidence, we consider only the appellee’s testimony or that which is most favorable to him.***”

In Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W. 2d 822 (1968), we said:

“We do not disturb the finding of fact merely because of contradictions in the testimony and circumstances; we must be able to say there is no reasonable probability that the incident occurred as found by the trial court sitting as a-jury.”

In the case at bar certainly we cannot say, even though there is conflicting and contradictory evidence, that the finding of the trial court is not supported by substantial evidence when we view it and all reasonable inferences deducible therefrom in the light most favorable to appellee.

Quotient verdicts, although frowned upon, have long been established as permissible as distinguished from verdicts by lot. Ark. State Highway Comm. v. Vandiver, 240 Ark. 26, 397 S.W. 2d 802 (1966). In Lin Mfg. Co. of Ark. v. Courson, 246 Ark. 5, 436 S.W. 2d 472 (1969), we were urged to overrule Vandiver and its predecessors and we declined to do so. Ark. Stat. Ann. § 43-2204 (1964 Repl.) provides that a juror cannot be examined to establish a ground for a new trial except for the purpose of showing that the verdict was reached by lot. In Brock v. State, 237 Ark. 73, 371 S.W. 2d 539 (1963), we interpreted the stringency of that statute as follows:

“The policy of the statute, which affords the jurors the protection of secrecy in their deliberations and also gives stability to verdicts, needs no defense.”

Appellant makes the argument that “the better reasoned approach is set forth in the leading case of Benjamin v. Helena Light & R. Co., 79 Mont. 144, 255 P. 20 (1927).” Suffice it to say that the statute interpreted there is dissimilar to our own statute.

Appellant next asserts for reversal that the court erred in refusing to permit three witnesses to refer to their sworn statements to refresh their memories. It appears that a few days after the trial these three witnesses (jurors) signed affidavits that they had agreed in advance to be bound by the results by totaling die amount each juror wanted to give and then dividing it by 12. As we understand the record the appellant neither voiced surprise nor laid the proper foundation to examine the witnesses based upon these affidavits. They were appellant’s witnesses. Therefore, we think the trial court was correct. Jonesboro, L. C. & E. Rd. Co. v. Gainer, 112 Ark. 477, 166 S.W. 571 (1914), and Ark. Stat. Ann. § 28-706 (1962 Repl.). A sufficient answer to this contention, however, is that the matter is largely within the discretion of the trial court. 98 C.J.S. Witnesses § 358. It is not demonstrated that the court abused its discretion.

Affirmed.

Harris, C. J., not participating.

Jones, J., dissents.


author: Carleton Harris, Chief Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Robert SIMMONS and Alice SIMMONS, His Wife et al
    5-6194
    492 S.W. 2d 238
    Opinion delivered April 2, 1973

      Thomas B. Keys and George O. Green, for appellant.

      Kenneth C. Coffelt, for appellees.
   Carleton Harris, Chief Justice.

This is an eminent domain proceeding brought by the Arkansas State Highway Commission against Robert Simmons and Alice Simmons, his wife, for the acquisition of lands needed for the construction of Interstate Highway No. 430 and its facilities in Pulaski County. The lands condemned by the commission are designated as Tract No. 392 in the complaint and declaration of taking, and this tract consists of 1.23 acres, including 0.23 acre which is presently being used for a public road. The condemned tract has been used for both residential and commercial purposes, the total parcel consisting of 5.5 acres. On trial, the jury returned a verdict for appellees in the amount of $15,000, and from the judgment so entered, appellant brings this appeal. For reversal, it is simply asserted that the verdict is excessive as there is no substantial evidence to support the amount awarded.

In support of their case, appellees offered two expert witnesses, Mr. W. H. Pitcock of Little Rock and Mr. Fred A. Degear of Mabelvale. The State offered three witnesses in support of its theory that appellees’ remaining lands after the taking were qf greater value than before the taking, it being contended that the property was enhanced in value due to the location of the remainder adjacent to an interchange. We, of course, are concerned only with whether there was substantial evidence to support the award.

We agree that the witnesses did not sufficiently demonstrate, or give a satisfactory explanation, of how they arrived at the amount of damages to which they testified. Both witnesses reached the same identical figure, $20,700 as the amount of damage suffered by Simmons and wife, and they detailed the value of buildings, including a residence on the Simmons property. However, it is apparent that they were unfamiliar with various facts which are pertinent in determining the amount of just compensation. For instance, neither witness was familiar with the highway plans, and one apparently reached his conclusions without seeing the plans. Pitcock evidently derived his information as to the type of access, or the amount of access, to the property after the taking from what he was told by Simmons. In answer to a question relative to the type and amount of access Simmons would have to his property after the taking, Pitcock replied: “The way he showed it to us about fourteen feet on the east end of it right there at the corner. Right there by that gas meter.” Pitcock was also unaware of the fact that the Simmons’ south property line was in the middle of Colonel Glenn Road and he did not know that the 0.23 of an acre was in the Colonel Glenn Road. Of course, this portion of the property which was being used as a road still belonged to appellees, but it is important that this piece of property could not be utilized for private purposes. Pitcock answered numerous questions with regard to the land taken with statements bearing the words “he said”. As to making a study of comparative sales in the area, the witness stated, “No sales have been in the area to compare with this *** I didn’t find any.” He said that he made no search to ascertain if comparable sales had been made. Pitcock valued die land only at $5,000 an acre, and he finally stated that the only sale he knew of hadn’t “been too recent. Probably a couple of years ago. Right down below it there, on the corner of Bauman Road. Eight acres sold for $25,000.” The record further reveals:

“Q And how much is that per acre?
A I didn’t figure it out. I don’t know.
Q Maybe I can help you. Would that be approximately $3,000 an acre?
A Something like that. A little more.
Q You’re putting $5,000.00 on this, aren’t you?
A Yes. Yes.
Q It’s more valuable property?
A It’s what?
Q It’s more valuable property than this down on the corner?
A Well, it’s on the corner, yes.
Q Mr. Pitcock, let me see if I can ask it again. Which property do you consider more valuable — this property down on Bauman Road that you are talking about for $3,000.00 an acre or the subject property which you say is $5,000.00 an acre?
A A.t the time it was sold there it would be a toss-up between them because one of them would be worth more by a few more dollars because it was on the corner.
Q In other words, the property on Bauman Road would be worth more because it was on a corner?
A Very little.
Q But possibly a little bit more?
A More.”

Yet, though stating that the Bauman property was more valuable, the Simmons property was valued at approximately $2,000 more per acre. Further examination of the witness reflects a lack of knowledge on another matter that was very pertinent. From the record:

“Q Now, you’ve been in business for 30 years in Pulaski County, right, sir?
A Yes, sir.
Q Now, have you seen interchanges placed along the interstate highway in Pulaski County?
A Yes, sir.
Q What happens to these places that are fortunate enough to be right next to that interchange?
A (No response)
Q Do they have a sale value?
A They all try to get in business along there.
Q Do you know of any of those sales?
A Do I know what?
Q Of any of those sales around the interchange?
A No, I don’t know of any.
Q You don’t deal with that?
A I would if I got the opportunity.
Q All right. Do you know something about the price that these lands sell for next to. . .
A On these cloverleafs?
Q Yes, sir.
A No, I don’t.”

As previously stated, it was the position of the commission that the coming of the interstate had enhanced the value of the lands, and appellant’s proof was directed to that contention.

Degear testified that he and Pitcock made separate appraisals, though he stated that the latter held the tape for him while he was measuring.

The witness (Degear) testified that he looked at the plans but was not capable of reading them. He agreed that he would consider the property strategically located relative to the freeway if it had three or four hundred feet of frontage, “usable frontage”, but he insisted that it only had fourteen feet frontage and thus had little or no value for commercial purposes. From the record:

“Q All right. If I told you it had 145 feet of usable frontage for ingress and egress would that change what you are saying?
A That would give it a little more value, yes, sir.
Q You mean an ingress from 14 feet to 145 would only give it a little more value?
A Well, the man’s home there, he don’t want a business out in front of his home.”

There really is no need to discuss Degear’s testimony further to determine whether it constitutes substantial evidence for the reason that he and Pitcock discussed their figures and adjusted their differences to reach a common figure, but the record does not reflect what changes were made in order to do this. From the record:

“Q Mr. Degear, is it by coincidence only that you and Mr. Pitcock both arrived at the same figure of $20,-700?
A We went over it together. We went over those figures we have there and arrived at the figure together.
Q Did you not make an independent appraisal and he make and independent appraisal and you compared appraisals to see. . .
A Yes, sir, we went out there and we made our independent appraisals and then we put them together. . .
Q And you compromised and came up with the figure?
A Came up with the answer.
Q You compromised the figures and. . . ***
A No, we just came up with that figure. And I think it’s very justifiable and if I didn’t I wouldn’t be stating it.
QI appreciate that. But did you think that his figures were different from yours?
A When we first started out I believe we were a little apart. I don’t remember how much.
Q Well, did you adopt some of his figures or did he adopt your figures or how did you do it?
A There’s nothing wrong in discussing the thing and where I might be wrong and where he might be wrong. . .
Q I didn’t ask you that. I asked you if you adopted some of his figures. That’s all I asked you. Yes or no.
A If we did what?
Q Did you adopt some of his figures? Did you change some of the figures you had to his? Did he change some of his figures to what you had?
A Really we changed some of the figures that we both had.
Q Okay, both of you changed?
A Changed the figures.
Q You took part of his and he took part of yours and you both came up with the same figure of $20,700?
A Yes, sir. We absolutely did, yes, sir.”

Of course, even if it were found that Degear’s testimony could be considered substantial, the judgment would have to be reversed because in reaching its verdict, we do not know whether the jury was persuaded by the testimony of Pitcock or the testimony of Degear.

Reversed and remanded.

      "Q. Did you know that — how many acres was in the taking?
      A How many was in the taking?
      Q Yes.
      A One twenty-three.
      Q Did you know that twenty-three hundredths of that one point twenty-three is in the Colonel Glenn Road?
      A No, sir, I didn’t know that.
      Q You don’t know. So you really don’t know how much property is being taken from Mr. Simmons, do you?
      A According to the dope y’all put out it was one twenty-three.

        Q What else does it say? Will you show it to me.
      A Yes, sir, I’ll show it to you. There it is.
      Q Will you read on the bottom of that to the jury what it says there? ***
      A Containing one twenty-three hundredths acres more or less which twenty-three hundredths of an acre more or less being used for public road.
      Q And so we’re actually talking about one acre that’s being taken from Mr. Simmons that is in use at this time?”

      The western boundary of appellees’ land was cut off for entrance and exit purposes because of the Commission’s proposed right-of-way and limits of controlled access. The southern portion was also affected as to ingress and egress, and the witnesses are in disagreement as to the amount of footage available for access purposes. Appellees assert that the proposed right-of-way line only leaves fifteen feet for access purposes along the Colonel Glenn Road; however, the Commission contends that one hundred forty-five feet of frontage on Colonel Glenn Road for ingress and egress will be afforded, this by virtue of the fact that under the adopted plans, the Commission will only fence off the land condemned to the extent of the limits of controlled access, and not to the proposed right-of-way line. From the testimony in the record, it appears that appellees consider this footage to be of no value for the reason that it is felt the Commission could later also fence this portion.


author: George Rose Smith, Justice.

text:
    CITY OF PARAGOULD et al v. J. R. COOPER et al
    5-6239
    492 S.W. 2d 243
    Opinion delivered April 2, 1973
    C. B. Erwin, City Attorney, and Branch, Adair it Thompson, for appellants.

      Elbert Johnson and Kirsch, Cathey, Brown <tr Goodwin, for appellees.
   George Rose Smith, Justice.

This is a zoning dispute. The appellees, J.R. and Ruth Cooper and Titan Development Company, own contiguous tracts in Paragould, comprising about seven and a half acres. The property lies in the southwest quadrant of the intersection between Highway 1, running north and south, and Highway 25, running east and west. When the city’s zoning ordinance became effective in 1971 most of the appellees’ frontage along the two highways was zoned C-3, commercial, to depths up to 300 feet. The remaining 175 feet of frontage and the rear part of the property were zoned R-l, residential.

In January, 1972, the property owners sought to have the entire tract rezoned for commercial use, so that a large shopping center could be constructed upon the land. The City Planning Commission recommended the change by a 4-3 vote, but the City Council rejected the proposal by a 5-1 vote. The landowners then brought this suit to have the city’s refusal to rezone the property declared to be arbitrary and capricious. This appeal is from a decree sustaining the landowners’ position and granting the relief sought.

After studying the protracted record made in the case we are unanimously of the opinion that the trial court’s decree is against the weight of the evidence. We are unwilling to say that the City Council acted arbitrarily or capriciously in refusing to rezone the appellees’ property. To the contrary, in our judgment the city has acted consistently, fairly, and reasonably in taking the view that the area lying south of Highway 25 is essentially residential in character and should be protected from the proposed extensive commercial incursion.

Highway 25 appears to be a reasonable dividing line between the commercial areas to the north and the residential areas to the south. The northwest and northeast quadrants of the intersection in question are devoted to commercial use. The southeast quadrant is occupied by a large cemetery that will certainly not be put to commercial use. In the southwest quadrant there are a filling station on the corner (not owned by the appellees) and a small commercial building formerly used as a pizza parlor. Both those commercial uses had existed for ten years or longer before the zoning law went into effect. The city, in drafting the original zoning law, might defensibly have classified those two lots as nonconforming uses or have incorporated them in the comparatively small commercial zone that was in fact created. That choice was a legislative decision lying within the Council’s province.

For the most part the appellees’ seven and a half acres are vacant property formerly used for agriculture. The tract adjoins, to the south and west, what is shown without dispute to be the finest residential district in the city, occupied by scores of homeowners who are protesting the proposed rezoning. We cannot say that the city acted with no reasonable basis in deciding not to permit that area to be invaded by an extensive commercial development such as a shopping center or whatever else the appellees might eventually decide to put upon the property. It is shown that in other instances the city has consistently refused to permit commercial rezoning south of Highway 25.

At the trial the appellees introduced several real estate experts who testified either that the R-l part of the tracts could not be developed residentially or that it would be very costly to so develop it. That view, however, was refuted by two witnesses for the protesting homeowners. Pat Watson, a real estate broker actively engaged in developing and building residential and commercial properties, submitted an actual plan showing how the tract could be developed. Richard Spelic, the director of planning for 12 counties in the area, submitted two plans, one involving development of the property as R-l residential and the other involving its development if the rezoning were limited to R-2 residential, permitting such uses as quiet professional offices. After the defendants and intervenors rested their case the plaintiffs did not call any witness to attack any of the three plans proposed by Watson and Spelic. We are more favorably impressed by the positive testimony of the appellants’ witnesses than by the opinions expressed by the appellees’ witnesses, which are essentially to the effect that the development of residential property is ordinarily not as profitable as the development of commercial property. In this connection we should add that Titan Development Company, the principal appellee, did not own the tract when the zoning ordinance became effective in March, 1971. It was after that time that Titan acquired part of the tract in fee and contracted to acquire the rest of it from the Coopers. Consequently Titan deliberately took the risk involved in purchasing property not zoned to its liking.

The appellants, citing an article by Professor Gitelman, Judicial Review of Zoning in Arkansas, 23 Ark. L. Rev. 22 (1969), invite us to re-examine the rule first announced in Little Rock v. Pfeifer, 169 Ark. 1027, 277 S.W. 883 (1925), to the effect that a city acts arbitrarily in refusing to rezone property that stands in the path of an expanding business district. The appellees in turn rely upon the Pfeifer rule in urging that the decree be affirmed. We do not regard this as an appropriate case for a re-examination of Pfeifer, because the area south of Highway 25 was certainly not an expanding commercial district when the appellees sought rezoning. In fact, no new commercial structures had been built in that area for more than a decade before the passage of the zoning ordinance.

The appellees also complain that the zoning map adopted along with the ordinance does not show with complete precision the boundaries of the R-l and C-3 areas in their property. That defect, however, certainly does not invalidate the ordinance insofar as it affects the appellees’ property. If any clarification is needed petitioners must first exhaust their administrative remedies before seeking judicial relief.

Reversed.


text:
    James W. GALLMAN v. Charles N. CARNES et al
    73-28
    492 S.W. 2d 255
    Opinion delivered April 2, 1973

      Watson & Carter, for appellant.

      Putman, Davis ir Basset, Cockrill, Laser, McGehee, Sharpe & Boswell and Phillip Carroll, for appellees.
   George Rose Smith, Justice.

The appellees have filed a motion to dismiss this appeal, on the ground that the case was not docketed in this court within the time allowed by Act 206 of 1971; Ark. Stat. Ann. § 27-2127.1 (Supp. 1971). Since the motion raises a procedural point of interest and importance to lawyers and litigants alike, we are disposing of the motion by a written opinion rather than by a mere per curiam order.

Act 206 amended Act 555 of 1953, which had been in effect for 18 years and was familiar to the bench and bar. Section 20 of Act 555, Ark Stat. Ann. § 27-2127.1 (Repl. 1962), provided that the trial court, “in its discretion and with or without motion or notice,” might extend the time for docketing an appeal if the extension order was entered within any period previously allowed by the trial court. Under Act 555 it was customary for attorneys to obtain extensions of time without notice to opposing counsel and without specifying any particular reason for the extension.

Act 206 of 1971 amended Section 20 of Act 555 by introducing the additional condition that an extension of the time originally fixed for docketing the appeal could be granted only upon a showing that the appellant had ordered a transcription of evidence stenographically reported. The legislative intent was evidently to eliminate unnecessary delays in the docketing of appeals to this court.

In the case at bar no evidence was stenographically reported. Nevertheless counsel for the appellant, without notice to the appellees, obtained an order from the trial judge extending the time originally allowed for lodging the record in this court. The record was not filed here until after the expiration of the time initially allowed. In the motion to dismiss the appeal the appellees argue that under Act 206 the trial court was without authority to grant an extension of time when it was not needed for the filing of a transcription of testimony stenographically reported.

We appreciate the logical force of the appellees’ position, but we are unwilling to apply the provisions of Act 206 so harshly as to prevent a hearing of this appeal on its merits. In similar situations, when new procedural statutes have changed familiar steps involved in the appellate process, we have stretched our authority to its fullest extent to avoid hardships to lawyers and to litigants. For example, when Act 555 first introduced the jurisdictional requirement that a notice of appeal be filed, we entered a per curiam order allowing appeals to be taken under the former procedure for a limited time. That per curiam order remained in effect until it was rescinded in our 1954 revision of Rule 26, published in Volume 221 of our Reports, at page 973. Similarly, the rigid requirement that extensions of time for the docketing of appeals be entered within the original 90-day period was temporarily relaxed by our opinion on rehearing in West v. Smith, 224 Ark. 651, 278 S.W. 2d 126 (1955).

In the situation presented by Act 206 we have a twofold basis for avoiding the injustices that would certainly attend an inflexible application of the new statute. First, Act 555 itself, which Act 206 amends, provides that an appellant’s failure to take any further step in addition to the filing of the notice of appeal does not affect the validity of the appeal, being merely a ground for such appropriate action as this court may take. Ark. Stat. Ann. § 27-2106.1. Secondly, Act 38 of 1973, approved January 31, 1973, authorizes this court to prescribe procedural rules superseding existing statutes. We are aware that Act 38 is not yet effective, for want of an emergency clause, but it will be in effect when the rule which we are announcing in this opinion becomes operative.

We are in sympathy with the legislative intent, as embodied in Act 206, to reduce delay in the appellate process. Nevertheless, to avoid unnecessary hardship to litigants who are not themselves at fault, we think it best to allow a short period of grace before the provisions of Act 206 will be routinely applied. Moreover, we think it desirable that applications for extensions of time be considered by trial courts only after reasonable notice to other attorneys in the case. We are therefore adopting today by per curiam order a rule implementing Section 27-2127.1, as amended. That per curiam order will be published as an appendix to this opinion, to the end that it be made a part of our official and unofficial Reports and thus be available to the bench and bar during the period that must elapse before the new rule can be included in the Arkansas Statutes Annotated.

APPENDIX

PER CURIAM. For the reasons stated in the opinion delivered on this date in Gallman v. Carnes, 254 Ark. 155, 492 S.W. 2d 255 (1973), the following Rule is adopted:

SUPREME COURT RULE 26 A

(Rule Implementing Ark. Stat. Ann. § 27-2127.1)

Effective August 1, 1973, in the absence of a showing of unavoidable casualty all appellate records must be filed with the Clerk in compliance with Act 206 of 1971 (Ark. Stat. Ann. § 27-2127.1 (Supp. 1971]), which provides that a trial court may extend the time allowed for the docketing of an appeal if the court (a) finds that the extension is related to the inclusion in the record of evidence stenographically reported and (b) enters the order of extension before the expiration of the period for filing and docketing as originally prescribed or extended by a previous order. Counsel seeking such an extension shall give to opposing counsel notice of the application for an extension of time.


author: Lyle Brown, Justice.

text:
    Raymond DONALDSON v. Milton SOCIA
    5-6229
    492 S.W. 2d 253
    Opinion delivered April 2, 1973

      John F. Gibson Jr., for appellant.

      Paul K. Roberts, for appellee.
   Lyle Brown, Justice.

This is an appeal from an award by the workmen’s compensation commission for temporary total disability. The referee, the full commission, and the circuit court allowed the claim. The appellant contends, first, that he does not come under the compensation law in that he does not have five employees, and second, that appellee’s injury did not arise out of and in the course of his employment.

Appellant was in the business of buying and selling livestock in large quantities. In the course of that business livestock trucking was engaged in between Louisiana, Arkansas, Mississippi, and Texas. Appellee operated for appellant a semi-truck with a double-deck trailer, hauling hogs and cows to and from the points mentioned. Appellee drove the truck in April, May and June 1970. Sometime in June, appellee became ill. His symptoms included undulating fever, headaches, a swimming sensation in the head, overall weakness, and sweating. He was hospitalized and his condition was diagnosed as brucellosis suis, a type of brucellosis carried only by hogs.

Appellant contends that he did not have five or more employees regularly working in his business. Our Ark. Stat. Ann. § 81-1302 (b) (Repl. 1960) provides that an employee is “any person, including a minor, whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, written or oral, expressed or implied, but excluding one whose employment is casual and not in the course of the trade, business, profession or occupation of his employer”. Then, Sec. (c) (1) “Employment” means: “Every employment carried on in the State in which five or more employees are regularly employed by the same employer in the course of business”, excepting certain situations not here applicable. It is appellant’s position that the recited provisions exempt him from workmen’s compensatión because, when his casual employees are eliminated he does not have five persons employed in the course of his business of buying and selling livestock.

Audrey Withers is circuit clerk of Drew County. She also keeps the books for appellant. She does part of the work at home, part at her office, and part at appellant’s office. She reported that in June 1970 the quarterly report to the Internal Revenue Service listed ten employees. The status of those employees, according to her testimony, is as follows:

Johnny Donaldson is appellant’s son and works in a managerial capacity in the business;
Usa Bosley is appellant’s housemaid;
Mike Wilf was an employee on the appellant’s stockyard;
Floyd Donaldson was a truck driver;
The appellee Socia was carried as a regular truck driver;
Audrey Withers is part time bookkeeper;
Wilber Gene Haden is a young man who lived with appellant and wife and did chores around the house;
Williard Maines worked three weeks and walked off;
S. T. Hammot worked part of one week in June; and Billy Hayden was a laborer.

There was substantial evidence to support the commission’s finding that there were five employees, even after eliminating the casual employees who do not work in the course of the business. Under the liberal interpretation which we have given to the recited provisions of Sec. 81-1302, it is not at all difficult to name a minimum of five employees who qualify appellant as an employer. See such cases as Clarksville Meat Co. v. Brooks, 237 Ark. 717, 375 S.W. 2d 671 (1964); Aerial Crop Care, Inc. v. Landry, 235 Ark. 406; 360 S.W. 2d 185 (1962). This was a factual question for the commission and we cannot say its finding is unsupported by substantial evidence.

Appellant’s second and final point is that the evidence was insufficient to support the court’s ruling that appellee suffered an injury arising out of and in the course of employment. Appellant comments on a portion of appellee’s testimony which makes his evidence suspect to say the least. “At the hearing he (appellee) went into great detail about being butted by a cow on a trip to Louisiana for his employer. However, after hearing, his doctor testify that he did not suffer from the type of brucellosis that is contracted from cattle, he decided to change his story to say that he had hogs as well as cattle on that trip.” In support of appellee’s contention that he suffered the brucellosis from handling appellant’s hogs we abstract appellee’s testimony:

In May and June of 1970, I was hauling mixed loads of hogs and cows; I had hogs on the upper deck the day I was butted by the cow; I loaded the hogs last; to my knowledge I did not come in contact with cattle or hogs except while working for Mr. Donaldson. I do not have any kinfolks that have cattle or hogs that I might come in contact with.

Dr. Kirk testified there was no doubt that the suis organism came from swine. He explained that transmission was by contact with the skin of the infected animal.

The test, which we have so often pronounced, is whether the evidence before the commission would have sustained a jury verdict. The commission of course had a right to believe appellee and, that being true, they could conclude that appellee contracted brucellosis suis from the handling of appellant’s hogs.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Charlotte BROWN et al v. W. F. CURTIS, Circuit Clerk of Lee County, Arkansas
    5-6233
    492 S.W. 2d 235
    Opinion delivered April 2, 1973

      A. T. Goodloe and Walker, Kaplan & Mays, PA., for appellants.

      Jim Guy Tucker, Atty. Gen., by: Ralph C. Hamner Jr., for appellee.
   John A. Fogleman, Justice.

On or before May 23, 1972, appellants were convicted in the Municipal Court of Marianna of misdemeanors alleged to have been committed at the same time and place. On July 21, 1972, appellants filed a petition for mandamus to W. F. Curtis, Clerk of the Circuit Court of Lee County, to require him to accept notices of appeal without the prepayment of a filing fee of $15 each and without the posting of an appeal bond. They alleged that they were being denied the right of appeal from their convictions for no reason other than their poverty. No formal response was filed by appellee who was appropriately represented at the hearing by the prosecudng attorney for the judicial district.

When the petition was presented to the circuit court for hearing, appellants made a series of oral motions as follows: (1) That the clerk file the notices of appeal without the payment of any fee; (2) that affidavits in forma pauperis be accepted by the court and petitioners declared indigents; (3) that the court declare that the duty of the clerk was to be exercised in an equal manner; and (4) that a “paper” appeal bond be allowed and the judgments superseded. The prosecuting attorney responded that no notice of appeal by any of the appellants had been filed within 30 days, that no transcript of the record in the municipal court in any of the cases had been filed, even though the burden of doing so lay upon the respective parties appealing, that there was no evidence of the clerk’s arbitrary refusal to act, or of any proper request to him for action in the premises. The circuit judge specifically asked appellants’ counsel if he had any witnesses and received a negative response. After considerable discussion among the judge and the respective attorneys, the court denied the petition for the writ because it had not been filed within the time allowed for appeal. This time was 30 days after the judgment was rendered. Ark. Stat. Ann. §§ 26-1302, 26-1307 (Repl. 1962). See Craig v. State, 235 Ark. 563, 361 S.W. 2d 16; Sheridan v. State, 239 Ark. 322, 389 S.W. 2d 232.

Appellants present the following points for reversal:

I. Defendants made continuous efforts from the date of the judgment, May 23, 1972, to file the appeal but were unable to perfect the appeal unless a filing fee was prepaid. Defendants upon learning that the appeal had not been perfected filed a Writ of Mandamus within a reasonable time requesting the Circuit Court to direct the Clerk to file the Notices of Appeal.
II. The prepayment of a filing fee in a criminal misdemeanor appeal is a form of invidious economic discrimination violative of the Due Process and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
III. Placing a companion “burden” of lodging an appeal on the defendants when the defendants have given notice and timely requested the appeal, is violative of fundamental Due Process and the right of unhampered access to the Courts protected by the Fifth and Fourteenth Amendments to the United States Constitution.
IV. If a person cannot post an appeal bond, he must then serve the jail sentence and/or pay the fine imposed. Inability to post an appeal bond should not render an appeal impossible. Actually most criminal appeals take place without the posting of an appeal bond.

While these points might present interesting and pertinent questions if they were presented by the record before us, we do not reach any of them, however, because they were not presented to the trial court at a time or in a manner justifying resort to the extraordinary writ of mandamus, which is issued only when the right of the petitioner to the relief sought is clearly established. Arkansas State Highway Commission v. Otis and Company, 182 Ark. 242, 31 S.W. 2d 427. The purpose of the proceeding is not to establish a legal right, but to enforce one already established. Carter v. Marks, 140 Ark. 331, 215 S.W. 732.

In Hoelzeman v. State, 241 Ark. 213, 406 S.W. 2d 883, we traced the oscillation of the legal responsibility for the filing of a transcript by a justice of the peace or municipal court between the appellant and the court, as fixed from time to time by statute. We agree with appellants that we there concluded that, under Ark. Stat. Ann. § 26-1307, it was the duty of the court to file the transcript, but when it is clear that it will not do so, the party appealing must assume the burden of taking prudent and diligent measures to protect his right of appeal, eliminating burdens of a character completely beyond his control. Generally, these steps, in the form of a motion for a rule on the clerk, or a writ of mandamus, to file the transcript must be taken within 30 days after the rendition of the judgment from which the appeal is sought. Everett v. Coleman, 211 Ark. 515, 201 S.W. 2d 30. Filing within that period is excused only when, as indiciated in Hoelzeman v. State, supra, the taking of these measures is prevented by matters completely beyond the control of the appellant. In Hoelzeman, the appellant had diligently and persistently importuned the court to file the transcript and had been repeatedly and unequivocally assured that it would be timely filed. We there emphasized that appellant’s inability to timely file a petition for mandamus was due to the unkept promises made to him.

In this case the burden was upon appellants, even in the absence of an answer by appellee to their petition, to make a proper showing that they were entitled to the relief sought. Ark. Stat. Ann. § 33-107 (Repl. 1962); Mobley v. Scott, 236 Ark. 163, 365 S.W. 2d 122. No showing was made at all. From the record before us we find no evidence of the following critical facts:

(1) Any request to the municipal court for the preparation or filing of a transcript;
(2) any refusal on the part of the municipal court to prepare or file a transcript after request was made;
(3) the filing of any “notice of appeal” or affidavit for appeal in the municipal court;
(4) any refusal by the clerk of the circuit court to accept and file any properly tendered “notice of appeal,” affidavit for appeal or transcript from the municipal court;
(5) any tender by appellants of any “notice of appeal,” affidavit for appeal or transcript of proceedings in the municipal court to the clerk of the circuit court;
(6) and indigency on the part of any of the appellants;
(7) any request, prior to filing the petition for mandamus, to any court to permit an appeal without the payment of a filing fee or to .supersede the judgment of the municipal court without the filing of an appeal bond.

For the reasons stated, we affirm the judgment denying mandamus.

Byrd, J., dissents.

      It appears that 12 of the appellants were convicted on April 29, 12 on May 6, 10 on May 20, and 14 on May 23, all in 1972. The role of Nilia Jo Robinson as an appellant is not explained by the record, since it does not disclose her conviction of any offense at any time.


author: J. Fred Jones, Justice.

text:
    MOTOR QUEEN MOTEL v. Connie SANDLIN
    5-6232
    492 S.W. 2d 257
    Opinion delivered April 2, 1973

      Lewis 4r Mitchell, by: Michael Rothman, for appellant.

      Ben J. Harrison, for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case in which the employer, Motor Queen Motel, appeals from a judgment of the Garland County Circuit Court affirming an order by the Workmen’s Compensation Commission in favor of the claimant-appellee Mrs. Connie Sandlin. Mrs. Sandlin was awarded 31 weeks temporary total disability, 35 weeks permanent partial disability, and $1,105.12 for medical expenses incurred because of an injury she sustained to the inside portion of her left ankle when she accidently struck it on an iron stairway while in the course of her employment for the motel.

For reversal the appellant-motel first contends that there was not sufficient evidence to sustain the Commission’s finding that appellee’s injury arose out of, and occurred within the course of, her employment by the appellant. The appellee testified that on Sunday evening, May 10, 1970, while she was employed as desk clerk at the motel, she went some distance from her office in showing a room to some customers and as she was hurrying back to her desk, she accidently struck the inside portion of her left ankle on a wrought iron stairway at the motel. She said the injury broke the skin on her ankle and resulted in some bleeding; that she reported the injury to her employer that night and showed him the injury she sustained. She said it was necessary to seek medical attention for the injury the following day.

Mr. Lester E. Houston, the manager and part owner of the motel, testified that Mrs. Sandlin reported her injury to him but that she did not report it on the night of May 10. Dr. Onyx P. Garner reported on June 1, 1971, that he saw Mrs. Sandlin in his office on May 13, 1970, “after striking her ankle on an iron railing the night before.” So, we conclude that there was substantial evidence to sustain the Commission’s finding that on May 10, 1970, Mrs. Sandlin sustained an injury growing out of, and occurring within, the course of her employment by the appellant-motel.

The appellant next contends that the appellee failed to prove that her alleged injury contributed to, was causually connected with, or in any way aggravated, her pre-existing condition of varicose veins. The claim was not based upon aggravation, nor did the referee find that the injury aggravated a pre-existing condition of varicose veins. It could easily be assumed, however, that Mrs. Sandlin’s pre-existing condition of varicose veins and phlebothrombosis might well have prolonged or aggravated the healing process to her injured ankle but the aggravation is really not a point in issue.

Dr. Garner’s report of June 1 is as follows:

“Mrs. Connie Sandlin was seen in my office on May 13,1970, after striking her left ankle on an iron railing the night before. She has varicosities of the left leg with moderate phlebothrombosis. The ankle was ulcerated at site of injury. Treatment consisted of dressings and medication. Bed rest was advised.
On August 11, 1970, this patient was advised that she needed hospitalization and a graft to the affected ankle, in order to try to remedy the situation. I have not seen her since. .
Diagnosis: Varicose ulcer, small.”

On May 18, 1971, Dr. Vernon E. Sammons reported that he saw Mrs. Sandlin on August 12, 1970, with an ulcer over the medial aspect of the left lower leg just above the medial malleolus. He said that Mrs. Sandlin stated the ulcer had been there for about five months and that she had had some vein trouble in the past with thrombophlebitis of the deep system. He said that she had had recurrence of this ulcer on several occasions. Dr. Sammons then said that on August 16 he excised the ulcer with stripping of the long saphenous vein with the interruption of several deep communicating veins beneath the ulcer site and did a graft on the defect where the ulcer was excised. He said that because of long periods of lack of activity she had suffered some shortening of the achilles tendon. Mrs. Sandlin was referred by Dr. Sammons to Drs. Durham and Murray for evaluation. On May 20, 1971, Dr. Murray reported as follows:

“This patient was seen on October 2, 1970, in the office. She related that she had injured her left ankle, was originally treated by Dr. Garner and, at a later date, a skin graft and vein stripping was carried out by Doctor Sammons. The patient stated that she remained with pain, induration and swelling of the foot.
Examination at that time revealed 10 degree loss of motion of the ankle in all planes. There was also noted a moderate amount of swelling in both the foot and leg.
AP and lateral x-rays of the left ankle revealed no evidence of osseous injury, but there was noted a marked amount of osteoporosis suggestive of Sudeck’s dystrophy.
The patient was asked to secure support shoes, increase her walking and return in one month. The patient has not been seen and failed to return.”

On July 16, 1971, Dr. Murray reported as follows:

“Following our report to you of May 20, 1971, the above named patient was seen in our office on one occasion, July 6, 1971. At that time, she stated that she was attempting to work, but continued to have pain, swelling and disability in the left leg.
Examination at that time revealed that her gait on level ground was good. There remained some dependent edema in the left lower leg with continued pain around the area of the previous skin graft. There was also a 10 degree loss of motion in all planes of the left ankle.
AP and lateral x-rays of the left ankle revealed that the marked osteoporosis had cleared up.
The patient was discharged at that time with a 10% . permanent disability of the leg below the knee as a result of the injury of 1970.”

The appellant next contends that appellee failed to prove that she was entitled to a 20% permanent disability to her leg as awarded by the Commission, when her physician found only 10% permanent disability to the leg below the knee. We agree with the appellant on this point. The evidence is to the effect that Mrs. Sandlin was suffering with varicosities and thrombophlebitis attended by poor blood circulation in her lower extremities; that as a result of the injury to her ankle an ulcer formed which required skin graft, all of which resulted in a shortening of the achilles tendon and some loss of motion of the ankle joint. The full Commission on review simply affirmed the finding of the referee, and the referee found that Mrs. Sandlin sustained a compensable injury which arose out of and in the course of her employment; that as a result of the injury she paid out the sum of $1,105.12 in medical bills; that she was temporarily totally disabled for a period of 31 weeks and had sustained a permanent partial disability to her leg in the amount of 20%.

The injury alleged and proven in this case was a scheduled injury under Ark. Stat. Ann. § 81-1313 (c) (Repl. 1960) and is controlled by our opinion in Anchor Const. Co. v. Rice, 252 Ark. 460, 479 S.W. 2d 573. The appellee argues that the disability estimated by Dr. Murray in the amount of 10% below the knee was undisputed and we agree with this contention; however, the appellee further argues, that the Commission sustained the referee’s award, of 20% permanent disability to the leg on the basis of appellee’s testimony as to her age, her work experience and training, and to her lower wages since the injury, and as to her inability to do the same work she did before the injury without assistance. We agree with the appellee that such seems to be the situation in the case at bar, however, that was exactly the situation in Anchor Const. Co. v. Rice, supra, and in that case we said:

“We now come to the issue of whether the Commission in fixing partial loss or partial loss of use of a limb under schedule (c) can consider a wage earning loss in addition to the funcdonal loss. We hold that they cannot.”

In Anchor the attending physician had testified that the claimant-appellee had sustained a 15% functional disability to the left lower extremity. The Commission awarded him a 25% disability to the left lower extremity and in support of our statement as above set out we quoted with approval from Larson, Workmen’s Compensation § 58.10 in part as follows:

‘The typical schedule provides that, after the injury has become stabilized and its permanent effects can be appraised, benefits described in terms of regular weekly benefits for specified numbers of weeks shall be paid. . . . These payments are not dependent on actual wage loss. Evidence that claimant has had actual earnings, or has even been regularly employed at greater earnings than before, is completely immaterial.’ ”

In Anchor we then said:

“Since the Commission obviously used the wage earning loss to arrive at an award in excess of 15% to the left lower extremity below the hip, it follows that the Commission erred in entering an award in excess of the 15% functional loss.”

We had an entirely different situation in the case of Royal Shoe Mfg. v. Armstrong, 252 Ark. 1002, 481 S.W. 2d 737. While in Armstrong the initial injury consisted of a cut to a finger, it developed into a chronic disorder characterized by spasm of the blood vessels diagnosed as “causalgia,” and resulted, among other symptoms, in bursitis of the shoulder joint, “frozen shoulder,” and severe pain radiating into the neck and head. The condition was only responsive to temporary relief by blocking the stellate ganglion in the neck by injection. The functional disability was related to the body as a whole by medical evidence and we approved an award of permanent disability to the body as a whole.

In the case at bar there is no evidence, medical or otherwise, that Mrs. Sandlin’s scheduled injury resulted in more than loss in the use of her leg below the knee caused by the stiffening of the ankle joint and shortening of the achilles tendon, and there is no medical or other evidence that her permanent disability resulting from the injury amounted to more than the 10% to the leg below the knee as estimated by Dr. Murray.

The judgment as to the temporary total disability and medical expenses is affirmed and the judgment as to the permanent partial disability is reversed and this cause remanded to the circuit court with instructions to remand to the Commission for the entry of award based on 10% permanent partial disability to the leg below the knee, and for reaward of attorney’s fee based on amount involved.

Affirmed in part, reversed in part and remanded.


author: J. Fred Jones, Justice. Conley Byrd, Justice,

text:
    STATE of Arkansas v. Walter DAVIDSON
    5800
    492 S.W. 2d 246
    Opinion delivered April 2, 1973

      Ray Thornton, Atty. Gen., by: Lonnie A. Power, for appellant.

      Howell, Price, Howell if Barron, for appellee.
   J. Fred Jones, Justice.

The state prosecutes this appeal from a trial court order granting the appellee Davidson’s motion to dismiss a felony information filed against him in the Pulaski County Circuit Court because of lapse of court terms under Ark. Stat. Ann. § 43-1708 (Repl. 1964). This statute provides as follows:

“If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.”

The companion statute, § 43-1709, provides for the same relief where a defendant is free on bond and has not been brought to trial before the end of the third term of the court in which the indictment is pending.

From the record before us it appears that on March 6, 1969, a felony information was filed in Pulaski County Circuit Court by the prosecuting attorney charging Davidson with the crime of robbery. Davidson was not apprehended in Arkansas and upon request of the state, an unlawful flight warrant was issued for him by federal authorities and on March 19, 1969, the warrant was served on Davidson in Denver, Colorado. The state of Colorado also had felony charges pending against Davidson, só he was tried and convicted for felonies committed in that state and was sentenced to the Colorado State Penitentiary for a term of eight to twelve years. On May 25, 1970, the state of Arkansas filed a detainer warrant with the Colorado authorities and on December 9, 1971, Davidson filed a pro se motion with the Circuit Court of Pulaski County, Arkansas, entitled “Motion to Quash or Dismiss Indictment, Information and Warrant.” In his motion Davidson alleged that the state of Arkansas had failed to initiate proceedings within a reasonable time to have him returned to Arkansas for trial on the charges pending against him, and for that reason his constitutional rights to a speedy trial had been denied him and Arkansas had waived and lost jurisdiction to prosecute the charges pending against him. Davidson requested that counsel be appointed for him in connection with his motion to dismiss and this request was complied with. Mr. Davidson appeared in person with his attorney on July 17, 1972, at which time his motion was heard and granted by the trial court on the authority of our decision in Holland v. State, 252 Ark. 730, 480 S.W. 2d 597.

Mr. Davidson was not released on bond so the question presented on this appeal is whether he was entitled to the discharge under § 43-1708, supra. The statute applies equally to all persons indicted for any offense, but it does not start applying equally to all persons indicted, and under all circumstances. Where an accused is placed in prison or held on bond while awaiting trial under an indictment or information, he clearly comes within the provisions of the statute from the date of the indictment where is is simply awaiting the will of the state to bring him to trial. Such was the situation in Holland v. State, supra, but the same rule does not apply to a federal prisoner or one imprisoned for crime in another state as hereinafter pointed out. In the Holland case the accused was committed to bond after indictment and three terms of the court had expired prior to the state making any effort to bring her to trial. Mrs. Holland remained in the state; all she did was to wait, and we held in that case that she was required to do nothing more. In Holland we cited cases holding that the burden rests with the state in bringing an accused to a speedy trial without request from the accused, and we cited other cases holding that before a prisoner can invoke the constitutional sanction of a speedy trial he must be in the position of demanding a trial. Then in Holland we said:

“In view of the foregoing authorities, we must either take a new look at the plain language of the statute or take up the constitutional issue of whether appellant was denied a right to a speedy trial. Rather than pioneer in the yet undefined area of what constitutes a speedy trial in terms of days or years, we have concluded that appellant here demonstrated her right to a discharge within the plain meaning of our statute when she showed that three terms of court had elapsed since her arrest and that such delay has not ‘happened on her application.’ In so doing we readily recognize that this interpretation is contrary to the language of Stewart v. State, supra . . . (Emphasis added).

In the 1853 case of Stewart v. State, 13 Ark. 720, the accused acquiesced in the postponement of his trial and there was ample evidence of other good reasons why he was not brought to trial within the term times. But in that case this court did say:

“. . . we think the spirit of the law is, that for a prisoner to be entitled to his discharge for want of prosecution, he must have placed himself on the record in the attitude of demanding a trial, or at least of resisting postponements.”

The wording of our opinion in Holland, supra, was apparently confusing to the trial court in the case at bar, but in Holland our decision turned on the italicized portion quoted above as applied to the facts in that case.

We have actually adopted and followed two separate rules in applying §§ 43-1708 — 43-1709; the distinction being based on the facts of the case. Where an accused is in jail awaiting trial on the charge filed against him, the burden is on the state to bring him to trial within the terms of § 43-1708 and if he is free on bond, the burden still rests on the state to bring him to trial within the terms of § 43-1709, and it is no longer necessary for the accused to place himself on record in an attitude of demanding a trial or of resisting postponements. Holland v. State, supra. The rule is different where the accused is in prison for a different crime in another state or in a federal institution and in Randall v. State, 249 Ark. 258, 458 S.W. 2d 743, we pointed out the difference in these words:

“However, one incarcerated in an institution of the federal government or that of some other jurisdiction must affirmatively request a trial in order to activate the statute and to avail himself of its protection. Lee v. State, 185 Ark. 253, 47 S.W. 2d 11 (1932). See also, Bedwell v. Circuit Court of Lawrence County, 248 Ark. 866, 454 S.W. 2d 304; Pellegrini v. Wolfe, Judge, 225 Ark. 459 283 S.W. 2d 162 (1955). So, too, a fugitive (escapee) from this jurisdiction, once he has been recaptured and returned to prison, can thereafter claim a reinvestment of his rights under this statute. Merritt v. State, supra, [244 Ark. 921, 428 S.W. 2d 66 (1968)]”

The sound logic in the difference of the two rules is apparent when we consider that when an accused has been arrested and placed in jail, or released on bond, while simply awaiting trial for a determination of whether he is guilty or innocent, he is subject only to the will and convenience of the state in bringing him to trial for a determination of whether he is wrongfully incarcerated or held on bond. When an accused is incarcerated in a federal institution or another state, he is not incarcerated or held on bond awaiting a determination of whether he is guilty or innocent, but is incarcerated for the commission of another crime for which he has been found guilty. In such situation there is no good reason why the accused should not be required to place himself on record in the attitude of demanding a trial before he would be entitled to discharge under § 43-1708 or § 43-1709.

Futhermore, on October 1, 1969, the state of Colorado, under its Interstate Co-operation and Compacts Act, Colo. Rev. Stat., § 74-17-1, Art. III (Perm. Supp. 1969), entered into an agreement with other adopting states under which it is provided:

“(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections, or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.”

This Act then provides that the official having custody of the prisoner shall advise him of the contents of any detainer lodged against him and of the right to make a request of the final disposition of the indictment on which the detainer is based. The Act further provides that any request made by the prisoner for final disposition of the charges pending against him shall also be deemed to be a waiver of extradition with respect to the pending charges. The state of Arkansas became a party to this agreement by Act 705 of 1971 which became effective when signed by the Governor on April 18, 1971. Davidson was serving his prison sentence in Colorado at that time.

The detainer warrant was filed by Arkansas on May 25, 1970, and when Davidson filed his motion on December 9, 1971, instead of moving for a trial on the charges pending against him in Arkansas, he simply prayed that the charges pending against him in this state be dismissed with prejudice, because of the state’s failure to grant him his constitutional right to a speedy trial.

We conclude, therefore, that the trial court erred in granting Davidson’s motion. The judgment of the trial court is reversed and this case remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Fogleman and Byrd, JJ., concur.

Conley Byrd, Justice,

concurring. I concur because Davidson could not have been entitled to any relief under Ark. Stat. Ann. § 43-1708 (Supp. 1971), under any circumstances before the expiration of the March 1971 term of court which did not occur until the 4th Monday in September, 1971. On that date any relief to which Davidson could have been entitled to receive under Ark. Stat. Ann. § 43-1708, was superseded by the provision of the Interstate Agreement on Detainers, [Acts 1971, No. 705, Ark. Stat. Ann. § 43-3201 et seq. (Supp. 1971)], adopted by both Arkansas and Colorado. That Act requires a demand from the prisoner. A reversal on this ground makes unnecessary any discussion of whether a demand is a prerequisite to relief under Ark. Stat. Ann. § 43-1708, when applied to a prisoner serving time in another jurisdiction.

Fogleman, J., joins in this concurrence.


text:
    Dr. Harry HAYES v. Richard W. RICKETT, Jr.
    5-6211
    492 S.W. 2d 419
    Opinion delivered April 2, 1973

      Smith, Williams, Friday, Eldredge & Clark, by: W. A. Eldredge Jr. and /. D. Watson, for petitioner.

      Tom Gentry, for respondent.
   Conley Byrd, Justice.

In this petition for writ of certiorari, Dr. Harry Hayes contends that the trial court exceeded its jurisdiction in permitting the cause to be tried a second time when the respondent Richard W. Rickett, Jr. relinquished the right to take Dr. Stuckey’s pretrial deposition pursuant to our opinion in Rickett v. Hayes, 251 Ark. 395, 473 S.W. 2d 446 (1971), and in overruling his motion of October 10, 1972, to declare the judgment final.

The record shows that following our remand on the prior appeal, Rickett did not take a discovery deposition from Dr. Stuckey, petitioner’s expert witness as to the practice of physicians in treating persons having Rickett’s medical problems. The second trial lasted nine days with the jury again returning a verdict for Dr. Hayes on July 24, 1972. A judgment on the jury verdict was rendered on July 26th. On August 7th, Rickett filed a request for an extension to time to file a motion for new trial. This request for an extension of time contains a certificate that a copy thereof was served upon petitioner by placing a copy thereof in the United States mail properly addressed to his attorneys of record. However, since the request was granted on the same day by a special judge, who had not heard the case, we assume for purposes of this opinion that the extension of the time to October 15th to file a motion for new trial was made ex parte and without prior notice to petitioner. October 10th petitioner filed a motion to strike respondent’s motion to extend. October 13 th the motion for new trial was filed and on October 20th the trial court overruled petitioner’s motion to strike and respondent’s motion for new trial.

At the time petitioner presented his motion, we, by agreement of the parties, gave an extension for the filing of the record so that the issues raised in this petition could be disposed of before respondent has been out any expense in preparing the record on his direct appeal from the judgment of July 26th and the overruling of his motion for new trial on October 20th.

We find no merit in petitioner’s contention that the failure to take Dr. Stuckey’s deposition after remand, made the first jury verdict res judicata. The prejudicial error in limiting the discovery before the first trial was the lack of information Rickett had for purpose of cross-examination and in securing witnesses to rebut Dr. Stuckey’s testimony. Of course this information was acquired from the first trial but not necessarily in time for Rickett to meet the issues in the first trial.

Another collateral argument by petitioner is that the extension was made without notice to him as required by Ark. Stat. Ann. § 27-364 (Supp. 1971). Petitioner here shows no prejudice in the failure to have prior notice for the application for extension. The record shows that following the nine day trial and entry of judgment, the regular trial judge who heard the case went on a vacation and that was one of the reasons for requesting the special trial judge sitting in vacation to extend the time. Thus even if the failure to give notice is to be considered as error, on the record before us it appears to be a harmless error.

Petitioner’s main contention is that an extension of time to file a motion for new trial is not permitted by Acts 1963, No. 123 [Ark. Stat. Ann. § 27-2106.3 to § 27-2106.6 (Supp. 1971)]. The first section of that Act provides:

“Upon the filing in the trial court within the time and in the manner provided by law of a motion for new trial or to vacate, set aside, modify or correct a judgment or decree, or to make additional findings of fact or conclusions of law, or to enter judgment notwithstanding the verdict, or to obtain any other relief which would have the effect of setting aside, modifying or amending any judgment, decree or appealable order, provided such motion is filed before the expiration of the time provided by law for the filing of notice of appeal in a civil case, the time for filing of notice of appeal shall be extended as herein provided.”

In construing Act 123 in Old American Life Ins. Co. v. Lewis, 246 Ark. 321, 438 S.W. 2d 22 (1969), we pointed out that any doubt about Act 123 not affecting existing procedures for review by the trial court of its proceedings was dispelled by the last sentence of section four thereof which provides: “Nothing herein contained shall be deemed to limit the right of any party to review proceedings upon any motion which the law may permit to be filed after the expiration of the time for giving notice of appeal.”

Having determined that Acts 1963, No. 123 did not affect the trial court’s right to review its proceedings, it follows that we must look to the authority of the trial court with respect to motions for new trial for purposes of determining whether the extension of time to file a motion for new trial is permissible. In Peterson v. Brown, 216 Ark. 709, 227 S.W. 2d 142 (1950), we found that an extension of time for the filing of a motion for new trial was permissible. It follows that the trial court had jurisdiction to hear the motion for new trial and that the time for appeal had not expired.

Petition denied.


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    Laverne BARENTINE v. GLEGHORN OIL Company et al
    5-6217
    492 S.W. 2d 242
    Opinion delivered April 2, 1973

      McMillan, McMillan if Turner, for appellant.

      Smith, Williams, Friday, Eldredge if Clark, by: Frederick S. Ursery, for appellees.
   Frank Holt, Justice.

The only issue on this appeal is whether appellant’s disability is a result of an occupational disease as defined by our Workmen’s Compensation Law. By stipulation the claim is barred as an accidental injury by the statute of limitations, Ark. Stat. Ann. § 81-1318 (1960 Repl.). It is agreed that appellant, a bookkeeper, suffers from Tardy Ulnar Neuritis, a disability resulting for repeated pressure upon appellant’s elbow and ulnar nerve, and that the disability arose in the course and scope of her employment. However, the commission unanimously affirmed the referee’s opinion denying appellant’s claim for compensation finding that appellant’s disability was not an occupational disease as defined by the statute. The circuit court affirmed. Although appellant acknowledges her disability is not specifically named by the statute, she contends for reversal, urging our rule of liberal construction, that her disability is included within the provision of §81-1314 (a):

“(5) The following diseases only shall be deemed to be occupational diseases ****
(4) Synovitis, Tenosynovitis, or Bursitis due to an occupation involving continual or repeated pressure on the parts affected.”

Appellant persuasively makes the argument that Synovitis, Tenosynovitis and Bursitis are caused by inflammation, pressure or irritation of the musculature of the body and, therefore, the statute should be construed to include Tardy Ulnar Neuritis since it results from a repeated pressure or irritation of a nerve which controls the muscle.

It is true, as we have often held, that our Workmen’s Compensation Law is to be liberally construed. However, appellant asks, in effect, that we add an additional disease to the above mentioned three pressure type occupational diseases which limitation has existed unchanged since the enactment of our Workmen’s Compensation Act.

Appellant cites three Tennessee cases to support her position that we should enlarge the schedule of occupational diseases through judicial interpretation. Whitehead v. Holston Defense Corporation, 205 Tenn. 326, 326 S.W. 2d 482 (1959), Buck & Simmons Auto & Electric Supply Company v. Kesterson, 194 Tenn. 115, 250 S.W. 2d 39 (1952), and Smith v. Tennessee Furniture Industries, 208 Tenn. 608, 348 S.W. 2d 290 (1961). However, these decisions were apparently calculated to offset an unusually short schedule list. Larson’s Workmen’s Compensation Law, Volume 1A, § 41.40, Footnote 24. To the contrary, our statute enumerates a large number of different types or classes of occupational diseases. § 81-1314. Also, this statute provides that “the following diseases only shall be deemed occupational diseases.” (emphasis added). Furthermore, it is significant that our Workmen’s Compensation Act delegates authority to the commission “[T]o make surveys and to determine the existence and prevalence of occupational disease hazards within this State, to determine the measures necessary to eliminate or reduce such hazards, and to add to the schedule of Occupational Diseases subject to appropriate conditions and after public hearing.” § 81-1343 (11).

Therefore, we must agree with Larson that “[T]he schedule list is exclusive, and it is not within the power of the courts to add new items, however obvious an occupational disease the omitted item may be.” Larson, supra, § 41-40, page 622.118. The plain wording of our statute together with the authority vested in the commission to made additions to the schedule of occupational diseases requires us, as did the circuit court, to uphold the commission’s action.

Affirmed.


text:
    Russell FELKER and Frank ENGEL v. STATE of Arkansas
    5815
    492 S.W. 2d 442
    Opinion delivered April 9, 1973

      Charles E. Davis and Sam Robinson, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Gene O’Daniel, Asst. Atty Gen., for appellee.
   Carleton Harris, Chief Justice.

This is a case of first impression in this state. Appellants, Russell Felker and Frank Engel, were convicted in the Washington County Circuit Court of receiving stolen property, such property consisting of musical tapes and a tape player. The jury fixed the punishment of each at eighteen years confinement in the Arkansas Department of Correction. From the judgment entered in accordance with the verdict, appellants bring this appeal. For reversal, three points are asserted, but since we find Point Three to be dispositive of the case, there is no need to discuss the first two points. Appellants’ third point is that the evidence shows conclusively that no crime was committed by either defendant.

To understand the contention, it is necessary that we review the evidence. Gary Sidman, twenty-three years of age, testified that he broke into a Firebird automobile on the Wal-Mart parking lot in Springdale and took from the automobile a tape player and some tapes. He testified that this was his own idea, but he needed money and he knew he could sell the tapes at the Trade Winds Motel in Springdale to Frank Engel, further testifying that he had sold “other stuff” to that appellant. Sidman then testified:

“Well, Frank told me that I could sell them this stuff on Saturday and this was the first of the week. Between the first of the week and Friday, I was arrested and when I told Sgt. Swearingen what I — you know, what my intentions were — anyway it worked around to that the highway patrolman was to go with me on Saturday. We went down Saturday morning, and Mr. Engel said he didn’t have the cash to buy all the stuff.”

This testimony had reference to the fact that after Sidman was arrested, admitted the theft, and the property had been recovered by the police, arrangements were made by the police department for a state trooper, Larry Imboden, who was stationed at Lonoke, to go to Springdale and act in an “undercover” capacity. Accordingly, Imboden went to the Springdale Police Department on the morning of December 12, 1970, met Sidman, and the two shortly before 2:00 P.M., went to the Trade Winds Motel, Imboden being in plain clothes. After drinking beer, and sitting around in the lounge for a while, they went into the kitchen area and met Engel. The officer then testified:

“We was to sell him some tape players that we had in a sack in a vehicle outside. We priced them and told him that we had the tape players and that the price, which was agreed on prior, which was $15.00 a tape player, I believe, something like that, and he said he didn’t have the money at the time. He said he’d offer me $10.00 as down payment on them and get the money later and I refused to take the $10.00 at the time because we didn’t figure it was enough for us. He said if we would come back later — approximately three o'clock, he would have someone who would probably give a hundred dollars for the whole merchandise, so we left — came back around two-fifty. He told us to go to Room 126 in the Trade Winds and that the man there would buy the merchandise from us. We went to the room and knocked on the door. Mr. Felker came to the door. I told him that we had the stolen merchandise, stolen tape players, in the back of the car, and he told me to bring them inside and I did, and set them down by the mirror on the dresser. He pulled out a hundred dollar bill and gave it to me, and I, in turn, pulled my pistol on him and pulled my identification out at the same time, and I placed him under arrest, put him against the wall and searched him for weapons.”

The officer testified that both men were told that the property was stolen property and this testimony was corroborated by Sidman.

The purchase was admitted by appellants, Engel testifying that Sidman had been “hanging around” the Trade Winds, stating that he (Sidman) was very much in need of money and that he owned a couple of tape players and some tapes that he would like to sell. Engel said that on the Saturday afternoon when Sidman and Imboden came to the Trade Winds, the two stated that the property had not been stolen and when Felker later came in, he (Engel) asked if the former would like to buy them and Felker replied, “If you are sure they are not stolen.” Engel said that Felker said he would give $100.00 for them. Thereafter, Engel sent the two to Felker’s room.

Felker testified that he had told Engel that if the equipment was the right price, not stolen, and in good shape, he would purchase same and Engel replied, “Well, they tell me they are not stolen”; he went on to his room and later the telephone rang, answered by his wife, and she turned to Felker and said, “Frank said to give the boy $100.00.” The purchase was then made.

Appellants argue that due to the fact that the property had been recovered by the police before it was sold, such property had lost its character as stolen property, and they accordingly could not be guilty of the offense of which they were convicted. This argument must be sustained. The question has been passed upon in several jurisdictions, and the unanimous holding is that, under the circumstances we have set forth, one cannot be guilty of receiving stolen property. In fact, the Attorney General cites no cases to the contrary and our own research has produced none. One of the earliest cases that dealt with this subject was the 1906 New York case of People v. Jaffe, 78 N.E. 169. Although the case deals with the actual offense of attempting to receive stolen property, a portion of the discussion deals with the substantive offense. In its discussion, the court said:

“In passing upon the question here presented for our determination, it is important to bear in mind precisely what it was that the defendant attempted to do. He simply made an effort to purchase certain specific pieces of cloth. He believed the cloth to be stolen property, but it was not such in fact. The purchase, therefore, if it had been completely effected, could not constitute the crime of receiving stolen property, knowing it to be stolen, since there could be no such thing as knowledge on the part of the defendant of a nonexistent fact, although there might be a belief on his part that the fact existed.”

In the 1935 case of Farzley v. State, 163 So. 395, the Supreme Court of Alabama stated:

“But it is essential to the crime here charged that the goods received by defendant were stolen and retained that status until they were delivered to defendant. If they were stolen, they continued to be stolen goods until they were recovered by their owner or some one for him.”

There is a lucid discussion by the United States Court of Appeals (Third Circuit) of the subject in the 1958 case of United States of America v. Cawley, 255 F. 2d 338. There, Cawley was convicted of buying parcel post packages stolen from the United States mail, knowing that they were stolen, and of possession of the stolen packages. The conviction was appealed and the opinion sets out the facts upon which Cawley was convicted, and the holding of the court, as follows:

“The facts which led to defendant’s arrest were these. On March 27, 1957, two thieves were apprehended in the process of stealing a number of parcel post packages from the United States mail. The thieves had taken the packages from a railroad conveyor belt and had hidden them in an underground passageway. It was while they were removing the packages from their secret hiding place that the thieves were detected by the postal inspectors.
“After the arrest of the thieves, the postal inspectors took them and the packages to the post office. The packages were opened and their contents checked. Upon interrogation of the thieves the inspectors discovered that they had intended to sell the contents of the stolen parcels to defendant Cawley. The inspectors then requested cooperation of the thieves to continue their original design and to contact defendant to make the sale. The thieves agreed. They approached defendant with the goods, and defendant purchased them under circumstances which would justify the inference that he thought the goods were stolen.
“The only question for resolution by this court is whether at the time defendant purchased the goods they had lost their character as stolen goods by reason of their previous recovery by the postal inspectors.
“The government agrees, as indeed it must, that it is a legal principle of long standing that when stolen goods are recovered by the owner or his agent before they are sold, the goods are no longer to be considered stolen, and the purchaser cannot be convicted of receiving stolen goods. The rule was recognized by this court in United States v. Cohen, 3 Cir., 1921, 274 F. 596, 599:
'* * * When the actual, physical possession of stolen property has been recovered by the owner or his agent, its character as stolen property is lost, and the subsequent delivery of the property by the owner or agent to a par deeps criminis, for the purpose of entrapping him as the receiver of stolen goods, does not establish the crime, for in a legal sense he does not receive stolen property.’ ”

See also Copertino v. United States, 3 Cir., 1919, 256 F. 519.

“The government urges that it is essential to the rule set forth above that the goods, to lose their stolen character, must be recovered by the owner or his agent. It is argued in this case that since the railroad was carrying the United States mail and the United States postal inspectors are not the agents of the railroad, the goods retained their stolen character even after having been recovered by the postal inspectors. With this we cannot agree. If it is necessary that goods be recovered by the owner’s agent, then the postal inspectors here, recovering parcels stolen from the United States mail, are agents for the owner regardless of the fact that the railroad is the carrier for the postal department. [Our emphasis] The rule that goods cease to be stolen if recovered by the owner or his agent means that such goods cease to be stolen if recovered by the owner or anyone who has a right to possession or control over them (Citing case). Here the postal inspectors certainly had a right to possession of the parcel post packages. It is in fact their explicit duty to recover packages stolen from the United States mail. When the inspectors took possession of the packages, the goods ceased to be stolen, and the subsequent purchase of the goods by defendant Cawley, even though he thought they were stolen, did not violate Section 1708 of Title 18.”

Under the cited reasoning, the court reversed the conviction.

See also the 1961 California case of People v. Rojas, 358 P. 2d 921, where the State unsuccessfully contended that because the thief stole the property pursuant to prearrangement with defendants, the crime of receiving stolen property was completed.

One of the most recent cases is the Oklahoma case of Booth v. State, 398 P. 2d 863 (1965), where the Oklahoma Court of Criminal Appeals reached the same conclusion, citing 76 CJS Receiving Stolen Goods, § 5, Page 7, as follows:

“In order to convict of receiving stolen goods, the goods in question must have retained their stolen character at the time they were received by accused; if they were stolen, they continue to be stolen goods until they are recovered by their owner or some one for him. Hence, where the actual physical possession of stolen goods has been recovered by the owner or his agent and afterwards carried to the receiver either by the original thief or the instrumentality through which the thief originally intended to convey it, at the express direction of the owner or his agent, for the purpose of entrapping the receiver, his receiving of the goods is not a receiving of stolen goods.”

As previously stated, no case holding contrariwise is cited by the State, and we know of no case where a contrary ruling was rendered. The law appears to be settled that when stolen property is recovered, it loses its character as stolen property, and one purchasing such goods thereafter cannot be guilty of the offense of receiving stolen property.

Reversed.

       The plural evidently has reference to some stolen property that Sidman had obtained from a man in Rogers, Sidman testifying that he knew this property was also stolen.

      Fred Champlin had identified a player and tapes as belonging to him, having been taken from his Firebird Pontiac while it was parked at Wal-Mart in Springdale. This property was subsequently returned to Champlin by the police, and these facts were recited by the witness in his testimony at the trial.

      The same argument was presented in People v. Rojas (hereafter cited) and rejected. From the opinion:
      “The People would have us go farther and hold that the evidence here supports the finding' that defendants are guilty of the consummated offense of receiving stolen property. In this regard the People advance two theories. The first is that the goods, when they came into the hands of defendants, had not lost their stolen character because Officer Saville, the ‘undercover man,’ was acting as ‘agent’ of the city and not of the true owner. We believe that both the owner and the police would take unkindly to the suggestion that property which has been the subject of larceny and has then been recovered by law enforcement officers remains ‘stolen’ while it is under the surveillance of the police. It seems obvious that stolen property, recaptured by the police, no longer has the status of stolen goods but, rather, is held by the police in trust for, or for the account of, the owner.”

      In Booth, as well as People v. Jaffe, supra, the actual offense for which the defendant was tried, was an attempt to receive stolen property. In both instances, the court held that that offense had not been committed on the rationale that one cannot be convicted of an attempt to receive stolen goods if he could not be guilty of receiving stolen goods. In People v. Rojas, supra, the conviction was for receiving stolen property. The Supreme Court of California, on the basis of the fact that the property, after its recovery by the police, had lost its character as stolen property, reversed this conviction, but on the basis of a California statute, held that the defendants were guilty of an attempt to receive stolen property.


text:
    SOUTHLAND THEATERS, Inc. et al v. STATE of Arkansas ex rel Jim Guy TUCKER, Prosecuting Attorney
    5-6230
    492 S.W. 2d 421
    Opinion delivered April 9, 1973

      Judith Rogers and of counsel, Frierson M. Graves Jr., Memphis, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Gene O’Daniel, Asst. Atty. Gen., for appellee.

      Morton Gitelman, for American Civil Liberties Union, Amicus Curiae.
   George Rose Smith, Justice.

This proceeding in the chancery court was brought by the Prosecuting Attorney of the Sixth Judicial District to enjoin the appellants, Southland Theaters, Inc., and its employees, from showing four assertedly obscene motion pictures at Southland’s theater in North Little Rock. The complaint asserts that the exhibition of the films constitutes a public nuisance, that the State’s criminal remedy is inadequate, and that the showing of the films should be enjoined pursuant to Ark. Stat. Ann. § 34-101 (Repl. 1962). This appeal is from a decree finding the exhibition of the films to be a public nuisance and enjoining the appellants from showing either the four films in question or any similar films in the future.

We must sustain the appellants’ contention that the chancery court has no jurisdiction in a proceeding such as this one. Act 411 of 1967 makes the showing of obscene films a felony, punishable by a fine of not more than $2,000 and imprisonment for from one to five years. Ark. Stat. Ann. §§ 41-2729 et seq. (Supp. 1971). Act 411, however, is an exclusively criminal statute, containing no reference to any civil remedy.

We find no merit in the appellee’s argument that the exhibition of the films may be abated as a public nuisance under the provisions of Ark. Stat. Ann. § 34-101. The only pertinent language in that statute has to do with the operation of “roadhouses and similar places of entertainment” in violation of law. The statute is penal and must be strictly construed. Mini-Art Operating Co. v. State, 253 Ark. 364, 486 S.W. 2d 8 (1972). When sp construed, the statutory reference to roadhouses and similar places of entertainment cannot be interpreted to include motion picture theaters.

Laying the statute aside, there is no basis for equitable jurisdiction in a proceeding of this kind. In a parallel case, involving an attempt by the prosecuting attorney to enjoin the operation of a gambling house in violation of the criminal law, we said: “A chancellor has no criminal jurisdiction. Something more than the threatened commission of an offense against the law of the land is necessary to call into exercise the injunctive powers of the court. There must be some interferences, actual or threatened, with property or rights of a pecuniary nature . . . Persons charged with crime are entitled to a jury trial, and this right must not be taken from them under guise of an injunction against a nuisance.” State v. Vaughan, 81 Ark. 117, 98 S.W. 685, 7 L.R.A. (n. s.) 899, 118 Am. St. Rep. 29, 11 Ann. Cas. 277 (1906); see also Lyric Theater v. State, 98 Ark. 437, 136 S.W. 174, 33 L.R.A. (n.s.) 325 (1911). Here neither the pleadings nor the proof shows any independent nonstatutory basis for equity jurisdiction. The State’s remedy lies in the enforcement of the criminal law rather than in a resort to the civil courts.

Reversed and dismissed.