author: Steele Hays, Justice.

text:
    William WORCH and Carolyn WORCH v. William Webb KELLY
    82-60
    633 S.W.2d 697
    Supreme Court of Arkansas
    Opinion delivered June 1, 1982

      Don R. Brown of Lambert ir Brown, for appellants.

      Thompson & Arnold, for appellee.
   Steele Hays, Justice.

This suit was brought by William Kelly, appellee, to rescind a contract to purchase appellants’ 80 acre farm in Sharp County. Shortly before trial the regular chancellor recused himself and the parties entered into a stipulation pursuant to Act 357 of 1981 agreeing that Chancellor Carl B. McSpadden would sit as temporary judge and would hear the case in Fulton County. Act 357 permits the parties in civil cases to stipulate to the appointment of a temporary judge who shall be compensated by the parties. Following trial the chancellor found appellants Worches failed to deliver possession on April 30, 1981, as agreed, and therefore Kelly was entitled to a rescission of the contract and the return of his earnest monty of $12,500.00.

Appellants argue four points for reversal: First, Act 357 of 1981 is unconstitutional, rendering the decree in this case void; second, the decree is also void because the trial was held outside the judicial boundaries of Sharp County; third, the chancellor erred in holding the Worches breached the contract of sale; and fourth, the chancellor erred in not finding the provision for possession on April 30 was waived. We affirm the chancellor.

The first two points were not raised at trial and consequently will not be considered on appeal. Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980); Harris v. Byers, 212 Ark. 1026, 208 S.W.2d 991 (1948). Further, appellants were not required to enter into the stipulation for a special chancellor, or to agree to try the case outside the district in which the suit was pending, but having chosen to do so for reasons they found sufficient, they cannot now repudiate their agreement because the result was not to their liking.

The third argument is the chancellor erred in finding a breach of contract by the Worches. Under the written contract executed April 11, 1981, Kelly was required to deposit $500.00 as earnest money and was entitled to possession on April 30, 1981. The contract fixed the closing date as April 22, contingent upon Kelly’s obtaining a loan from Federal Land Bank. There was testimony that on the day before the agreed closing Kelly had a telephone conversation with the real estate broker handling the sale, Mr. Cruthis, who told Kelly the Federal Land Bank loan had not yet been approved and that the Worches were having difficulty moving out. He suggested Mr. Kelly put up an additional $12,000.00 toward the purchase price to expedite their moving. Mr. Kelly was anxious to get possession by April 30, and on April 22 he gave Mr. Cruthis $12,000.00 upon the assurance, according to Kelly, that possession would be surrendered by April 30.

On April 30 Kelly called Cruthis and learned the loan had still not come through and was told they could not close nor could he take possession. With that, Kelly informed Cruthis he was no longer interested in purchasing the property and demanded his money back. A few days later Kelly consulted a lawyer as to how to rescind the contract and recover the $12,500.00 he had deposited with Cruthis. Around May 12 Kelly’s lawyer called Cruthis and asked if clear title could be obtained that day. After checking with the title company Cruthis told him a title commitment could be issued that day.

The Worches contend there was no breach and the chancellor erred in finding that the $12,000.00 payment was made to insure possession by April 30, and also in finding there was a failure to deliver possession. These determinations were findings of fact properly within the province of the trial court and will not be set aside unless clearly erroneous. ARCP Rule 52. The evidence to support these findings is substantial. Mr. Kelly’s testimony that the additional $12,000.00 payment was made to insure possession by April 30 was corroborated at trial by other testimony and by circumstantial evidence. The evidence is uncontroverted that Mr. Cruthis knew possession was important to Mr. Kelly and that on April 30 Mr. Cruthis told Mr. Kelly he could not take possession because the loan had not yet been approved. The Worches argue they did not fail to deliver possession because Kelly did not demand possession directly from them but only through the broker. However, they had not vacated the property on April 30 and Mr. Worch said he left it up to Mr. Cruthis, who handled the negotiations between Mr. Kelly and the Worches. Mr. Cruthis testified the April 30 closing was not meant to be definite, but was merely a "target date, more or less.” But Mr. Cruthis prepared the contract and the provision for possession was clear and absolute. If it was meant to be conditioned on closing, it would have been easy to say so, but it did not and the chancellor found a material breach of contract by the Sellers. The chancellor also construed the circumstances surrounding the $12,000.00 advance as making the time of delivery "the essence” of the contract with respect to performance and we concur in that view.

Finally, appellants argue the telephone inquiry by Mr. Kelly’s lawyer about clear title waived the provision in the contract máking the time of delivery of possession essential. We disagree. We are not convinced that a single telephone call to ask if Sellers could furnish a clear title should be construed as a waiver in the face of Mr. Kelly’s unequivocal renunciation of the sale at the time of the Sellers’ breach, but whatever may be said of the argument, it was not raised by the pleadings as required by ARCP Rule 8 (c), nor presented to the trial court.

The decree of the chancellor is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Charles E. GRIFFIN v. STATE of Arkansas
    CR 82-67
    633 S.W.2d 708
    Supreme Court of Arkansas
    Opinion delivered June 1, 1982

      Jesse L. Kearney of Kearney Law Offices, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

This is the second appeal of appellant’s conviction of class A felony kidnapping (Ark. Stat. Ann. § 41-1702) and his sentencing pursuant to the Arkansas habitual offender statute (Ark. Stat. Ann. § 41-1001 [Repl. 1977]). Appellant was sentenced in a bifurcated trial to 25 years. In the first appeal, Griffin v. State, 2 Ark. App. 145, 617 S.W.2d 21 (1981), the Court of Appeals found the evidence sufficient to support the conviction but held the punishment should have been imposed under the class C felony provision rather than the class A provision. Ark. Stat. Ann. § 41-1702 (2). In remanding for resentencing the court stated at 148:

The trial court’s error in this instance had no bearing upon the jury’s determination of guilt or innocence. It affected only the extent of the punishment to be imposed. We have a choice among several corrective measures, viz., we may reduce the punishment to the maximum for the lesser offense, reduce it to the minimum for the lesser offense, fix it ourselves at some intermediate point, remand the case to the trial court for assessment of penalty or grant a new trial. Clark v. State, 246 Ark. 876, 440 S.W.2d 205 (1969). In this case, we choose to remand the case to the trial court for imposition of the penalty. (Our italics.)

On remand, the trial court imposed a 15 year sentence, the maximum provided for a class C felony under the habitual offender statute.

In this appeal, appellant contends he is entitled to a new trial and the trial court erred in sentencing him to an extended term of 15 years. We disagree. On remand, the trial court merely followed the instructions of the Court of Appeals by fixing the sentence within the limits provided for a class C felony where the Arkansas habitual offender statute (Ark. Stat. Ann. § 41-1001 [1] [c]) applies, that is, 15 years. The Court of Appeals did not direct a new trial and the circuit judge was not bound to provide one.

Citing Estes & Colburn v. State, 258 Ark. 597, 528 S.W.2d 138 (1975), appellant also contends he should have received either the minimum sentence (3 years) for a class C felony under the Arkansas habitual offender statutes, or a new trial. He relies on Mathis v. State, 267 Ark. 904, 591 S. W.2d 279 (1979), for the proposition that he has the choice of having the presiding judge impose the punishment or have a new trial.

But both arguments must fail, as our review is limited to the record before the trial court in the resentencing stage of this case. We do not consider arguments settled by the opinion of the Court of Appeals in the first appeal. No petition for review or rehearing was filed and consequently the Court of Appeals opinion is res j udicata. Matters decided in one appeal become the law of the case and govern the reviewing court upon a second appeal. Wilson v. Rodgers, 256 Ark. 276, 507 S.W.2d 508 (1974); International Harvester Co. v. Burks Motors, 252 Ark. 816, 481 S.W.2d 351 (1972).

We will not reverse the trial court on remand from the Court of Appeals where its actions in resentencing were in accordance with the directive of the Arkansas Court of Appeals.

Affirmed.


author: Charles B. Roscopf, Special Justice.

text:
    HANDY DAN IMPROVEMENT CENTER, INC. et al v. Charles G. ADAMS et al
    81-233
    633 S.W.2d 699
    Supreme Court of Arkansas
    Opinion delivered June 1, 1982

      Rose Law Firm, for appellant Handy Dan.

      Owens, McHaney ér Calhoun, for appellant The Kroger Co.

      House, Holmes ér Jewell, P.A., for appellant Safeway Stores, Inc.

      Wright, Lindsey ér Jennings, for appellant Skaggs.

      Tucker ér Cuff man, for appellee Adams.

      Steve Clark, Atty. Gen., by: R. B. Friedlander, Asst. Atty. Gen., for appellees.
   Charles B. Roscopf, Special Justice.

This case concerns the constitutionality of the Sunday closing law, Ark. Act 135 of 1965 (codified as Ark. Stat. Ann. Sections 41-3852 through 41-3863 [Repl. 1977]). The Plaintiffs, seven private individuals and five retail establishments residing and doing business in Pulaski County, brought this action to enjoin the Defendants, five competing retail establishments, from engaging in retail sales on Sunday in violation of the act. The attorney general was made a party to this action as required by Ark. Stat. Ann. Section 34-2510 (Repl. 1962). While the Sunday closing law is a criminal law providing criminal penalties, Section 7 declares the Sunday sale of prohibited articles to be a public nuisance subject to injunctive action. The Defendants filed Answers challenging the constitutionality of the act.

After a trial of the issues, the chancellor found that all of the Defendants were in violation of the Sunday closing law and that the law was constitutional. The Defendants were permanently enjoined from selling the prohibited articles on Sunday.

The issue on appeal is whether Act 136 of 1965 is constitutional. The questions presented are (1) whether the Sunday closing law is so vague that it fails to give reasonable notice of the forbidden conduct and therefore violates due process as guaranteed by the U.S. Constitution, Amendment XIV, and the Arkansas Constitution, Article 2, Section 8; (2) whether the classifications within the law deny equal protection as guaranteed by the U.S. Constitution, Article XIV, and the Arkansas Constitution, Article 2, Section 3; (3) whether the enforcement of the act amounted to constitutionally prohibited discriminatory enforcement, and (4) whether the trial court erred by enjoining all of the Defendants’ stores in the County.

It should be made quite clear at this point that Appellants do not invoke the religious establishment challenge which is so often connected with Sunday closing cases.

Before the questions raised are discussed, it is appropriate to consider the presumptions and burdens of proof involved in cases which challenge the constitutionality of legislative acts. This Court has always held that before it may strike down an act of the legislature on the basis of unconstitutionality, it must clearly appear that the act is at variance with the Constitution. An act of the legislature is presumed to be constitutional, and any doubt on the question of constitutionality must be resolved in favor of the act. Davis Warehouse Company v. Bowles, 321 U.S. 144, 64 S. Ct. 474, 88 L. Ed. 635 (1943); Baratti v. Koser Gin Co., 206 Ark. 813, 177 S.W.2d 750 (1944); Bush v. Martineau, 174Ark. 214, 295 S.W. 9 (1927); State v. Moore, 76 Ark. 197, 88 S.W. 881 (1905). Further, the party who alleges the unconstitutionality of a statute has the burden of proving that claim. State ex. rel. Kimberlite Diamond Mining and Washing Company v. Hodges, 114 Ark. 155, 169 S.W. 942 (1914); and Rice v. Lonoke-Cabot Road Improvement District No. 11, 142 Ark. 454, 221 S.W. 179 (1920).

The arguments pressed by the Appellants are not new in the area of Sunday closing cases, and the tests prescribed are well established. Four landmark Sunday closing cases, relied on heavily by the Appellees, were decided by the U.S. Supreme Court in 1961. McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S. Ct. 1135,6 L. Ed. 2d 551 (1961); Braunfeld v. Brown, 366 U.S. 599, 81 S. Ct. 1144, 6 L. Ed. 2d 563 (1961); and Gallagher v. Crown Kosher Super Market, 366 U.S. 617, 81 S. Ct. 1122, 6 L. Ed. 2d 536 (1961). A fairly recent scoreboard on Sunday closing cases has been conveniently compiled in Caldor’s Inc. v. Bedding Barn, Inc., 177 Conn. 304, 417 A.2d 343 (1979).

It will be seen from these cases that in applying the tests and interpreting the cases, each case is controlled to a great extent by statutory development over many decades, sometimes centuries. This accounts, in part, for the wide diversity of results reached in different jurisdictions. State cases decided since McGowan, supra, and the other 1961 landmark cases continue to be divided. This is because the precedential value of these landmark cases is limited by the particular legislative schemes involved. The constitutional challenges made by the Appellants are not new to this court either, and likewise the language of the ordinance or act being considered must be carefully scrutinized in the process of case interpretation.

Sunday closing laws have their roots in the very earliest stages of human history. Justice Wood in Rosenbaum v. State, 131 Ark. 251, 199 S.W. 388 (1917) recites a classic statement of the evolution of the original Arkansas Sunday closing laws. See, e.g., Two Guys From Harrison, Inc. v. Furman, 32 N.J. 199, 160 A.2d 265 (1960): Note, “Sunday Closing Laws in The United States: An Unconstitutional Anachronism”, 11 Suffolk U. L. Rev. 1106 (1977).

Contained in our Revised Statutes adopted in 1837 were comprehensive Sabbath Breaking Laws that prohibited not only all sales on Sunday but also all labor on Sunday with some minor exceptions for acts of daily necessity and charity. Rev. Stat., ch. 44, div. 7, Art. II. Justice Wood in Rosenbaum, supra, points out that these Sabbath Breaking Laws are almost a literal copy of an act adopted during the reign of Charles II. Incredibly, these Sunday laws stayed on our books almost unchanged until the labor proscription section (Ark. Stat. Ann. Section 41-3801 [1947]) was repealed by Ark. Act 554 of 1953 and the sales proscription section (Ark. Stat. Ann. Section 41-3802 [1947]) was repealed by Ark. Act 367 of 1957. From 1957 until the enactment of Ark. Act 135 of 1965, Arkansas had no Sunday closing laws applicable generally to the entire state. It is important to note that the Sunday closing laws which were effective in Arkansas from 1837 to 1957 prohibited the retail of “any goods, wares and merchandise” on Sunday with the only exception being “charity or necessity on the part of the customer”. This brief statutory history is included in order that Act 135 may be considered in the proper historical perspective.

We will consider the questions presented in the order set out above. First, we will discuss Appellants’ contention that Act 135 is unconstitutionally vague. The core provision of this act is Section 2 (Ark. Stat. Ann. Section 41-3853 [Repl. 1977]), which provides that it shall be unlawful to sell or offer to sell on Sunday the following commodities: (1) clothing and wearing apparel; (2) clothing accessories; (3) household utensils, glassware and china; (4) home, business or office furniture; (5) mechanical or electrical household or office appliances; (6) hardware, tools and paints; (7) building and lumber supply materials; (8) jewelry, silverware, watches and clocks; (9) luggage and leather goods; (10) musical instruments and recordings; (11) radios and television sets, receivers, record players, recording devices and components and parts therefor; (12) lawnmowers and other manual and power driven outdoor gardening equipment; (13) cameras, projectors and parts and equipment therefor (except film, flashbulbs and batteries); and (14) linens, yard goods, trimmings and sewing supplies.

It is fundamental that a criminal statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process. Connally v. General Construction Company, 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322 (1925). The rationale behind this rule was clearly expressed in Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972):

First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

The most recent Arkansas case involving the point is Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979), which reiterates the due process requirements in the criminal law field as in Grayned, supra, and cites Papa Christou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972), and Herndon v. Lowry, 301 U.S. 243, 57 S. Ct. 732, 81 L. Ed. 1066 (1937). It is against these basic rules of fair play that Act 135 must be tested.

The facts for the most part are undisputed. The Plaintiffs proved the unlawful sale of prohibited articles and explained the effects on their businesses of such sales on Sunday when.Plaintiffs were closed. They offered excerpts from the minutes of the Board of Directors of the City of Little Rock which instructed the city manager to put blue laws last on the priority list of enforcement. The Defendants offered store managers and clerks to show their inability to identify clearly articles prohibited by the act and to show the pervasive confusion which exists in the interpretation of Section 2 of Act 135. Walter E. Simpson, Chief of the Little Rock Police Department, called by the Defendants, testified that enforcement of the act had been sporadic and that “usually a couple of times a year we take enforcement action”. He confirmed the testimony of other witnesses that identification of prohibited articles had been rendered more difficult since 1977 and 1978 by reason of the development of large full-service stores which sell thousands of different articles. In this connection store managers testified that they had for sale fifty thousand to seventy thousand articles and that only a cursory survey revealed that scores of articles could not be identified as prohibited or permitted. Simpson candidly admitted that only articles in clear violation were purchased when enforcement action was taken and that there were three categories of articles, those clearly prohibited, those clearly permitted, and those not clearly defined as either prohibited or permitted. In the latter category, he stated, were hundreds and hundreds of articles.

From a cursory reading of the fourteen prohibited categories it would seem that a man of common intelligence could steer a safe course on the side of lawful sales, but a studied analysis quickly reveals that the prohibitions are vague and do not meet constitutional standards. Indeed, the act raises more questions than it answers. For example, are yard sprinklers and high pressure hoses within the category “other manual and power driven outdoor gardening equipment”? Can a merchant sell an electronic strobe light for a camera, which performs the same function as a permitted flashbulb? Is a slide viewer within the category of “cameras, projectors and parts and equipment therefor”? Is a non-musical comedy phonograph record within the classification of “musical instruments and recordings”? Is the sale of a toy drum prohibited, even though sales of toys are not? Does “china” include paper, plastic or crockery dishes, or only items (whatever their purpose) made of highly fired translucent porcelain? Are artists’ paints, oils, acrylics, water colors, etc. prohibited under the category “paints”? Does “paints” include wood stains and fingernail polish? Is a portable outdoor barbecue grill, with or without a motor-driven rotisserie unit, within the category of “household appliances”? A fertile mind, with seventy thousand articles to work with and only fourteen categories in which to place them, could no doubt extend this list of perplexities ad infinitum.

It can be seen that public confusion as to the meaning of this act is well justified. That same lack of understanding exists even with law enforcement personnel. If the top law enforcement officer in the largest city in the state cannot definitely identify the prohibited articles, how can it be argued that the act is not vague? Citizens of this state are guaranteed, both under the U.S. and Arkansas Constitutions, the right to clear notice and fair warning of prohibited conduct before they can be subjected to loss of liberty. Act 135 does not satisfy the basic principle that no man shall be held criminally responsible for conduct which he could not reasonably understand to be prohibited. From the record herein and from the argument of counsel it would clearly appear that the ordinary citizen is incapable of determining what is prohibited and what is not under Act 135.

Appellees make a vigorous argument that the issues presented in this case have already been decided contrary to the contentions of Appellants in the following cases: H. V. Hickenbothan v. Williams, 227 Ark. 126, 296 S.W.2d 897 (1957); Green Star Supermarkets, Inc. v. Stacy, 242 Ark. 54, 411 S.W.2d 871 (1967); Lockwood v. State, 249 Ark. 941, 462 S.W.2d 465 (1971); Bill Dyer Supply Company, Inc. v. State, 255 Ark. 613, 502 S.W.2d 496 (1973).

Act 135 has been before this court only one time before. Bill Dyer, supra. The issue of vagueness was not considered in Bill Dyer, and the case provides no precedent on this issue. Hickenbothan, Green Star, and Lockwood, supra, had under consideration the early Sunday closing law and city ordinances which provided an entirely different legislative scheme than Act 135. These schemes generally provided for the prohibition of all Sunday sales with certain well-defined exemptions. Such schemes are not vague for they clearly and specifically define the commodity exempted. Act 135 prohibits the sale of fourteen broad categories of articles and then provides certain exemptions. In effect, it creates two classes of exempt articles, those not included in the prohibition and those included in the specific exemptions. This difference, in our view, clearly distinguishes not only the Arkansas cases cited by Appellees but also McGowan, supra. Moreover, the vagueness issue, though discussed in McGowan, was finally not considered because it was not properly raised in the Maryland Court of Appeals.

A statute similar to Act 135 prohibiting Sunday sales of a broad category of commodities was tested for vagueness and found wanting in State v. Target Stores, Inc., 279 Minn. 447, 156 N.W.2d 908 (1968).

The Connecticut and Utah Sunday closing laws were tested for vagueness in State of Connecticut v. Anonymous, 33 Conn. Super. 55, 364 A.2d 244 (1976); State v. Anonymous, 33 Conn. Super. 141, 366 A.2d 200 (1976); and Skaggs Drug Centers, Inc. v. Ashley, 26 Utah 2d 38, 484 P.2d 723 (1971). In these cases the statutes were so riddled with exceptions that the Courts held that they were not sufficiently intelligible to pass the vagueness test.

This court holds that Appellants have clearly demonstrated that Act 135 fails to meet the minimal requirements of due process in regard to vagueness and that both of the evils inherent in vague laws, as mentioned in Grayned, supra, are present in Act 135.

The second question presented is whether Act 135 denies equal protection of the law. This issue was considered by this court in Bill Dyer, supra, albeit perfunctorily. The rules involved in testing Sunday closing laws were fully discussed in the 1961 landmark cases of McGowan, Krown Kosher, Two Guys, and Braunfeld, supra, and have been further developed in the scoreboard of cases referred to in Caldor, supra. As will be seen, state cases go both ways on the equal protection challenge. In Bill Dyer this court found that on its face Act 135 did not contravene equal protection, but held that the constitutional challenge failed for want of proof. In light of the strong presumptions favoring constitutionality, we must likewise hold that Appellants have not clearly demonstrated, to the extent necessary, that Act 135 violates the equal protection clauses of either the U.S. or Arkansas Constitutions.

Chief Justice Warren established the broad perimeters of state discretion in the following language in McGowan, supra\

Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the States’ objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.

We simply hold on this issue that Appellants have not borne the strong burden required of them sufficient to overturn Act 135.

In light of our conclusion that Act 135 is unconstitutionally vague, it is not necessary for us to address questions 3 and 4 raised by the Appellants. Act 135 contains a severability clause, but we find that all of its provisions are so mutually connected with and dependent on Section 2 that the legislature would not have adopted the residue independently. The act is not severable and the entire act must fall on account of the invalidity of Section 2. Pryor v. Lowe, 258 Ark. 188, 523 S.W.2d 199 (1975); Borchert v. State, 248 Ark. 1043, 460 S.W.2d 28 (1970).

For the reasons stated, the Decree of the Chancery Court is reversed and the action remanded with directions to enter a Decree in accordance with the views herein expressed.

Reversed and remanded, with directions.

George Rose Smith, J., not participating.


author: George Rose Smith, Justice.

text:
    Gerald BAKER et al v. Frank MANN et al
    82-64
    634 S.W.2d 125
    Supreme Court of Arkansas
    Opinion delivered June 7, 1982

      E. Alvin Schay, for appellants.

      Michael Rainwater of Gill, Skokos, Simpson, Buford & Owen, for appellees.
   George Rose Smith, Justice.

This action for libel was brought by the four appellants — a former police chief and three former part-time police officers of the city of Shannon Hills. All four of the plaintiffs had left the city’s employment by January 1, 1981. The six defendants — the mayor and five of the six members of the city council — are essentially the incoming city administration that took office on that date. At the close of the plaintiffs ’ case the trial j udge directed a verdict for the defendants on the ground that they were immune from liability. The judgment recites that the court found no substantial evidence to support the plaintiffs’ allegations.

The assertion of libel is based upon a letter sent by the six defendants to the prosecuting attorney on February 20, 1981. We quote the body of the letter:

We, the undersigned city council members of Shannon Hills, Saline County, Arkansas, respectfully request you order a state police investigation of the following conditions at Shannon Hills, Arkansas:
1. Missing public records, specifically police records, have been removed from the files. Records which former Police Chief Willie Gerald Baker had previously shown to present council members and Mayor Max Foster, are no longer in the file. They were removed before the present administration assumed office on January 1, 1981.
2. Attorney John Hall of Little Rock, alleges that over 100 guns and other weapons were confiscated by the former police department. If these allegations are correct, all of these weapons are missing.
3. Numerous and sundry reports of confiscation of illegal drugs and drug paraphernalia by the late police department have been authenticated, specifically noted in the city court records. No record of disposition of those drugs and paraphernalia is on hand. Former Police Chief Baker has alleged that the drugs were “flushed down the toilet,” however, other knowledgeable individuals have indicated that such was not the case. Under either condition, the drugs and paraphernalia were not disposed of as prescribed by state law.
4. Many “hard copy” of tickets are on hand in the file, and in some cases both copies of the ticket were on hand. Since the “hard copy” should be given to the offender, the presence of this copy in the file could well indicate mishandling of bond and fine monies.
5. Missing police equipment is obvious. Vouchers for purchase of equipment are on hand, but the equipment is missing.
6. Informal contact with two former members of the police department revealed a willingness on their part to turn state’s evidence and/or cooperate with state police officials to resolve the problems.
In view of item 6, expedient action to conduct a thorough investigation of these allegations is essential to the health and welfare of all the citizens of Shannon Hills, especially the aforementioned members of the police force.

The letter is signed by Max Foster as mayor and by the others as aldermen.

Gerald Baker was police chief from August 1979 until January 1, 1981. The other three plaintiffs each worked for from five to fourteen months as part-time policemen. No one testified about the size of the police force; so it is impossible to determine how many other policemen were formerly employed in the department. Each of the four plaintiffs testified that he himself had not been guilty of any wrongdoing. They did not deny that some records and equipment might be missing. Baker said that he had flushed cocaine down the commode, but he had made a record of it in a folder that was in the files when he last saw it. The plaintiffs said that only a few guns had been confiscated, not as many as ten.

We hold that in the circumstances the letter was conditionally privileged. It was sent by public officers to another public officer, the prosecuting attorney, and pertained to public property and to the conduct of former public employees. In McClain v. Anderson, 246 Ark. 638, 439 S.W.2d 296 (1969), we held that school board members were conditionally privileged in discussing the conduct of a school teacher, at a meeting at which her discharge was being considered. In Thiel v. Dove, 229 Ark. 601, 317 S.W.2d 121 (1958), we held that a witness to a city policeman’s asserted misconduct was conditionally privileged in testifying about the matter during the city police committee’s investigation and at a public city council hearing. We noted in Thiel that “the committee and the council were discharging a public duty in inquiring into Rogers’ fitness to act as a policeman, and in the public interest it was desirable that they have as much information as possible about the incident.”

In the present case the mayor and aldermen were discharging a public duty in asking the prosecuting attorney to initiate an investigation of former public employees’ possible mishandling of public records, public property, and public funds. We do not see that it makes any difference that the letter was taken around by one alderman for the others’ signatures instead of being signed at a council meeting. In either situation the defendants were acting in the public interest.

Both McClain and Thiel state that a conditional privilege is lost if a defamatory statement is made by one who knows it to be untrue or who is motivated by malice rather than by the public interest that created the privilege. Here neither basis for the loss of the privilege was established by the plaintiffs’ proof. Hardly any statement in the letter is actually shown to have been untrue. Each plaintiff testified primarily about his own conduct, not that of others. Records and equipment were in fact missing. Drugs and drug paraphernalia had in fact been destroyed. Hard copies of tickets were in fact on hand. It is not shown whether Hall did or did not make the statement about 100 guns. Moreover, even if falsity could arguably be said to have been established, there is no showing that the six defendants knew any of the statements to be untrue.

Nor is it shown that the sending of the letter was actuated by malice. Except for the reference to Baker, which was true, the letter did not name anyone. If the mayor and aldermen believed, as they apparently did, that an investigation was appropriate, their communication to the prosecuting attorney could not have served its purpose without some description of the areas to be inquired into. We find no substantial evidence that would have justified the jury in concluding that the six defendants were motivated by actual malice in sending the letter.

Affirmed.


author: Frank Holt, Justice.

text:
    Floyd Junior COTTON, a/k/a Junior COTTON and Bud COTTON v. STATE of Arkansas
    CR 81-48
    634 S.W.2d 127
    Supreme Court of Arkansas
    Opinion delivered June 7, 1982

      Terry Jones of Jones & Reynolds, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was charged by information with capital felony murder. A jury found him guilty of first degree murder and assessed his punishment at life imprisonment. Appellant first asserts the trial court erred in permitting the prosecuting attorney to argue, in the presence of the jury, the merits of admitting testimony concerning a polygraph test taken by a defense witness.

During cross-examination by the state of Dorothy Taylor, widow of the victim and sister of the appellant, the following exchange occurred:

(Prosecuting attorney): Okay. Is there any particular reason why on July 27th of ’78, eight months later, you felt compelled to come in and give these stories?
(Reporter’s Note: Mr. Butcher [Taylor’s counsel] talking with Dorothy Taylor off the record.)
Ms. Taylor: At the time I came in and told you about the drugs and the beatings and stuff and you-all were wanting me to take a polygraph test, and I agree that I had not been honest with you, so I told you about the beatings and the drugs and the other thing and then I took the polygraph test.
(Prosecuting attorney): All right. Did you pass the polygraph test?
(Defense counsel): Objection.
(Prosecuting attorney): Your Honor, this was a totally uncalled for response after advice of counsel, and if she’s gonna talk about taking a polygraph test then I’d like to get the results in.
The Court: Well, the Court will admonish the Jury to ignore any reference to a polygraph test. Under the present state of the law and the state of the art, the law does not consider polygraph examinations to be reliable and any — anything concerning a polygraph test will be ignored primarily because of the fact that a man is being charged with a crime here and we’re not going to go into polygraphs so let’s get off of that and go on to something else.

It is well recognized that any reference to a polygraph test in the absence of agreement or other justifiable circumstances would constitute error. Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980); Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981); and Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978).

The appellant argues this exchange had an adverse and prejudicial impact on his defense witness’ credibility. However, the witness, after conferring with her personal counsel, initiated the subject by making the unsolicited statement that she had taken a polygraph test. The question by the state as to the result of the test was improper. However, the appellant promptly objected to the state’s question, which was never answered. The court, sua sponte, immediately admonished the jury to disregard any reference to the test. Apparently the court’s admonition was acceptable to the appellant inasmuch as he made no objection nor asked for a mistrial. No prejudicial error is demonstrated.

Appellant asserts that the trial court’s admonishment to the jury was unclear, equivocal, and did not remove the taint of the episode. We cannot agree. Apparently, appellant did not perceive the court’s admonition as being deficient since he did not ask for a clarification nor object to the adequacy of the admonishment.

Appellant’s final contention for reversal is that the trial court erred in admitting into evidence two color photographs of the victim. He argues that the photographs were more inflammatory than informative, and they were not corroborative of any issue. He insists there was no question as to the identity of the victim, the scene where he was found, nor that an autopsy was performed. Further, appellant was willing to stipulate that the victim suffered gunshot wounds.

Ordinarily, photographs are admissible if they have any relevance. Lacy v. State, 272 Ark. 333, 614 S.W.2d 235 (1981); and Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). In order for a photograph, asserted to be inflammatory, to be excluded, the prejudice must outweigh the probative value. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979); Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979); and Ark. Stat. Ann. § 28-1001, Rule 403 (Repl. 1979). Neither isa photograph inadmissible because it is cumulative or unnecessary due to admitted or other proven facts. Prunty v. State, 271 Ark. 77, 607 S.W.2d 374 (1980); and Spillers v. State, 272 Ark. 212, 613 S.W.2d 387 (1981). Finally, the decision to admit photographs lies within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Gruzen v. State, supra, and Robinson v. State, supra.

Here, one photograph corroborated the witness’ identification of the victim and also could fairly give rise to the inference that, after the victim suffered three fatal gunshot wounds to the head, the body was dragged to the location where it was found. The second photograph depicts a “slit” in the victim’s chin, the nature and location of which were described by the state medical examiner as resulting from a blow by a blunt instrument. In our view, the nature, extent and location of the deep gash were relevant to the questions of intent and state of mind of the appellant. Appellant’s willingness to agree that the victim suffered gunshot wounds did not relieve the state of its burden of proving every element of first degree murder which included premeditation, deliberation and intent beyond any reasonable doubt. We find no abuse of discretion.

Pursuant to Supreme Court Rule 11 (f), Ark. Stat. Ann. Vol. 3A (Repl. 1977), we have reviewed the transcript for rulings adverse to appellant and find no error prejudicial to his rights.

Affirmed.


author: John I. Purtle, Justice.

text:
    Maria J. WALTERS and Cristina WALTERS v. Ola Jean LEWIS et al
    81-262
    634 S.W.2d 129
    Supreme Court of Arkansas
    Opinion delivered June 7, 1982

      Terry R. Kirkpatrick, for appellants.

      Walter B. Cox of Davis, Cox ir Wright, for appellees.
   John I. Purtle, Justice.

The Washington County Chancery Court dismissed appellants’ complaint wherein they sought to have the estate of the decedent, Walter G. Walters, recovered and partitioned for their benefit as widow and sole surviving child.

Maria Walters, as widow, and Cristina Walters, as only surviving child of Walter G. Walters argue three points on appeal. First, they allege the chancellor erred in applying Ark. Stat. Ann. § 62-2902.1 to the facts of this case. Second, they contend that the court erred in finding the above statute barred their claim even if it was applicable. Third, it was argued that the court erred in dismissing the purchasers of the decedent’s land from the case.

The facts reveal that Maria and Walter G. Walters were married in Guadalajara, Mexico on December 23, 1964, residing there for a number of years. Decedent adopted his wife’s daughter, Cristina, on May 17, 1967, while all three still lived in Mexico. The family visited Mr. Walters’ relatives in Washington County, Arkansas on a fairly regular basis until December 1969 when the decedent returned to the United States to renew his visa. However, he never returned to Mexico. Plaintiffs and the decedent corresponded fairly regularly at first but later only sporadically. Through the Walters’ various visits in this country the appellees were all aware that Maria and Walter were married and represented themselves to be man and wife.

On February 23, 1976, Walter G. Walters died intestate in Washington County, Arkansas. About March 16, 1976, Ola Jean Lewis, sister of the decedent, filed an action in probate which resulted in her appointment as personal representative of the decedent’s estate. She listed only the brothers, sisters, nieces and nephews of the decedent as hifc surviving relatives. She listed neither Maria nor Cristina as relatives although she knew that Walter and Maria had been married in Mexico. She had Maria’s address, which was the same since she married Walter in 1964. On October 5, 1976, Ola Jean Lewis caused the distribution of the estate and had it closed. Prior to closing the estate she sold property to her relatives, the Groces, for the sum of $8,000. She had obtained permission of the court to sell the property. The appellants were not notified of the closing of the estate.

Christmas, 1977, Maria sent Walter a Christmas card. It was returned to her in Mexico with the written notation on the envelope, "deceased.” The envelope bore a Guadalajara postmark dated January 11, 1978. Shortly thereafter Maria wrote Ola Jean Lewis a letter inquiring about Walter. Maria claimed she wrote several letters in 1978 and denied receiving any response. Ola Jean Lewis admitted she received one letter from Maria but decided not to answer because she didn’t think Maria had shown enough interest in the decedent. Sometime in July, 1979, Maria was able to go to Chicago to visit a relative, and while there she applied for social security benefits as the widow of Walter G. Walters. She presented the returned Christmas card to the authorities and explained she had written the Bureau of Vital Statistics of the State of Arkansas and requested a death certificate if one was on file. This action was taken at the request of the American Consul in Mexico. A three dollar check was enclosed with the request for the death certificate but neither the certificate nor the money were ever returned. There is no question but that on March 31, 1980, Maria learned that Walter was dead. This is the date she commenced receiving social security widow’s benefits. In October of 1980, appellant was able to go to Washington County, Arkansas where she learned that her late husband’s estate had been distributed to his relatives. She filed the present suit on January 23, 1981 and the court rendered its decision on August 31, 1981, finding constructive fraud on the part of appellee, and dismissing appellants’ complaint due to the running of the statute of limitations.

We first consider the question of whether Ark. Stat. Ann. § 62-2902.1 (c) (Supp. 1981), Ark. Stat. Ann. § 62-2912 (Repl. 1971), or Ark. Stat. Ann. § 37-213 (Repl. 1962) applies to the facts in this situation. Under the foregoing statutes we find that the claim of the appellants is not barred. We so find because the personal representative breached her duty of trust and was guilty of fraud in: 1) failing to notify the appellants of Walter’s death, 2) failing to disclose to appellants her appointment as personal representative, and 3) failing to advise appellants when the estate was closed. Further, appellee, Ola Jean Lewis, perpetrated a fraud upon the court by leaving appellants’ names off the list of heirs as required by her position of administratrix to the estate. We find no basis for the excuse used that she thought Maria had divorced Walters. Maria had lived at the same address all of the time since the administratrix had become acquainted with her. She even admitted receiving a letter from Maria Walters sometime in 1978 but decided not to answer it.

We agree that the statute of limitations must commence to run at some time. Therefore we look to prior decisions for guidance in this area. We considered a matter relating to the tolling of a statute of limitations based on grounds of fraud in Williams v. Purdy, 223 Ark. 275, 265 S.W.2d 534 (1954), where we stated:

Mere ignorance of one’s rights does not prevent the operation of the statute of limitations, but where the ignorance is produced by affirmative and fraudulent acts of concealment, the statute of limitations does not begin to run until the fraud is discovered.

Silence on the part of one who is under no duty to speak will not prevent the statute from running. However, if there is some positive act of fraud which would conceal a plaintiff’s cause of action then the statute is tolled, Williams v. Purdy, supra. There must be some affirmative action on the part of the person charged with fraud before the statute will be tolled. Nicklaus v. McClure, 244 Ark. 23, 423 S.W.2d 562 (1968). In the case of Wrinkles v. Brown, 217 Ark. 393, 230 S.W.2d 39 (1950) we stated:

The cases hold that in actions to recover money paid because of fraud, the cause of action accrued when the fraud was discovered, or should have been discovered, with the exercise of reasonable diligence.

We find that the personal representative committed fraud by failing to notify the appellants of her appointment and by not listing them as heirs on her petition for letters of administration. We think the appellants were put on notice requiring them to investigate the matter in January of 1978 when the Christmas card was returned with “deceased” written on the envelope. Maria immediately wrote the presonal represenative who intentionally refused to respond. She contacted the American Consulate in Mexico and was told to write the Bureau of Vital Statistics in Little Rock. She did not receive a death certificate nor was her money refunded. We think she used due diligence in investigating Walter's death after having been put on notice that he may have been dead. She received no cooperation from the people who were in the best position to assist her. Maria Walters was able to get to Chicago in July of 1979 at which time she applied for social security benefits as the widow of Walter G. Walters, perhaps with the idea in mind that this would resolve once and for all the question of whether he was deceased. We think she had learned at this time or learned during this proceeding that her husband was dead. She would have known positively that he was dead in March of 1980 when she received a social security check as the surviving widow.

In essence, this is a suit for damages based on the fraudulent actions and inactions of the personal representative of the estate. We find that there was a duty on the part of the personal representative to notify the appellants of her appointment and of the closing of the estate. We also hold that there was a duty on the part of the appellants to verify the death of the decedent. We think that these duties on the part of the respective parties were resolved in July, 1979, when Maria applied for social security benefits. The fact that she did not actually learn of the distribution of the estate until October 1980 may be attributed to her failure to proceed in a more reasonable manner. Since we hold that the statute of limitations commenced to run in July of 1979 when the fraud was discovered the appellants were well within the time limits in filing their action pursuant to any of the foregoing statutes.

Appellants also argue that the court erred in dismissing the purchasers of the real property from the action. We agree with the chancellor’s holding in regard to this portion of the case because the purchasers were in no way responsible for the fraudulent acts of the personal representative and, from the record as we see it, were bona fide purchasers for value, without notice of a defect in the title.

The case is remanded to the trial court with directions to enter the appropriate judgment against the personal representadve and her surety, Fidelity and Deposit Company. The decree as to all other defendants is affirmed.

Affirmed in part, reversed in part, and remanded.


text:
    BANK OF YELLVILLE, CITIZENS BANK & TRUST COMPANY OF FLIPPIN, and FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF HARRISON v. FIRST AMERICAN SAVINGS & LOAN ASSOCIATION and ARKANSAS SAVINGS & LOAN ASSOCIATION BOARD
    82-76
    634 S.W.2d 122
    Supreme Court of Arkansas
    Opinion delivered June 7, 1982

      James W. Lance, for appellant First Federal Savings and Loan Association of Harrison.

      Hermann Ivester, for appellants Bank of Yellville and Citizens Bank and Trust Company of Flippin.

      Lee Thalheimer, Savings and Loan Board Supervisor; Kelley ¿r Luffman; and Gill, Skokos, Simpson, Buford ir Owen, for appellees.
   John I. Purtle, Justice.

This appeal is from a Pulaski Circuit Court decree which affirmed the ruling of the Arkansas Savings & Loan Association Board in granting a charter to First American Savings and Loan Association. The appellant argues that there was not substantial evidence to support the board’s findings and that the board’s findings as required by Ark. Stat. Ann. § 67-1824 (2) and (5) (Repl. 1980) are not accompanied by concise and explicit statements of underlying facts supporting the findings. We disagree with the appellant on both points.

A group of people in Marion County filed an application with the Arkansas Savings and Loan Board to charter an organization called First American Savings and Loan Association. The Bank of Yellville, Citizens Bank and Trust of Flippin, and First Federal Savings and Loan Association of Harrison protested the petition for a charter. The board held extensive evidentiary hearings and considered a number of depositions at the hearing on April 15, 1980. At the conclusion of the hearing the board voted, 3 to 1, to approve the application. The board made findings of fact which were included in the order of June 18,1980. The protesting parties petitioned for a rehearing which was granted and held on October 10, 1980. An order was issued by the board on December 15, 1980, adopting findings of fact in support of the board’s decision. Appellants appealed to the Circuit Court of Pulaski County which entered an order upholding the board on August 21, 1981. This appeal is from the order of the Pulaski County Circuit Court.

We will consider all of appellants’ points at the same time. The argument is so interwoven that we deem it to be in the interest of clarity and brevity to address them together. In considering cases involving a charter application for a bank or savings and loan association we review the evidence to determine if it is substantial enough to support the decision of the board. Cases supporting this standard of review are: First State Building & Loan Assn. v. Arkansas S. & L. Assn. Board, 261 Ark. 482, 549 S.W.2d 274 (1977); Northwest S. & L. Assn. v. Fayetteville S. & L. Assn., 262 Ark. 840, 562 S.W.2d 40 (1978) and Independence S. & L. Assn. v. Citizens Federal S. & L. Assn., 265 Ark. 203, 577 S.W.2d 390 (1979); Arkansas S. & L. Board v. Central Arkansas S. & L. Assn., 260 Ark. 58, 538 S.W.2d 505 (1976).

We will now consider whether there was substantial evidence to support the decision of the board in the case before us. The present case is not unlike Independence S. & L. Assn. v. Citizens Federal S. & L. Assn., supra, wherein we observed that there was conflicting evidence. We found that some of the board’s specific findings of underlying facts were weak and possibly could not support the board’s conclusion. Nevertheless we held that there was enough substantial evidence to support the finding of the board. The appellants’ dissatisfaction involves whether the board fulfilled its obligation under the provisions of Ark. Stat. Ann. § 67-1824. Appellants argue that there was not substantial evidence to support the board’s findings as required by the above statute. The order of the Arkansas Savings and Loan Association Board dated December 15, 1980, includes the findings upon which the order is based. The findings are contained in ten pages and seem to us to adequately support the conclusion reached by the board. We are not unmindful that the appellants strenuously argue that two of the proposed directors or officers of First American Savings and Loan Association did not meet requirement (2) of Ark. Stat. Ann. § 67-1824, alleging that they fraudulently obtained subscriber signatures. It is true that some eight of the 229 alleged subscribers to the new institution said they had signed the papers without full knowledge of what was contained therein. Admittedly there is some evidence which would support a decision contrary to the action of the board. The board heard and observed the witnesses as they testified. The credibility and weight to be accorded witnesses is the prerogative of the board and not that of reviewing courts.

Appellees have set forth the names and qualifications of the organizers of the proposed institution. Without going into the lengthy details of each of the arguments we note that the board found that all of the organizers were of good character, responsible, and generally fit to perform the duties involved in a savings and loan association. One had been a municipal judge, prosecuting attorney, state representative, and circuit judge. Another had managed a hardware company for 25 years and served as chief of the volunteer fire department and as a member of the Yellville Planning Commission. Additionally, one was president and chief executive officer of the largest industry in the county and had served 11 years on the school board. Another was a practicing dentist who also operated a turkey farm. One owned a real estate company, had served on the County Quorum Court, was president of the local chamber of commerce and was a member of the board of directors of the Bank of Yellville. Finally, one of the organizers had been named man of the year by his local chamber of commerce in 1977. He was one of the organizers of the Citizens Bank of Flippin and had served seven years as secretary and vice chairman of the bank’s board of directors. All of the organizers had other qualifications which we will not mention here. About 16 witnesses appeared on behalf of the appellee savings and loan association at the board hearing and all testified favorably. The witnesses included the Mayor of Yellville as well as the Superintendent of the Yellville and Summit School District. Many other prominent witnesses testified.

There is no requirement that the board’s findings of fact be stated separate from the order by the board. Citizens Bank v. Arkansas State Banking Board, 271 Ark. 703, 610 S.W.2d 257 (1981). The order in the present case was circulated to all board members who were given an opportunity to make any changes in the finding of facts. Since the primary purpose of the underlying facts is to assist the courts in understanding the case, we believe the findings in the present case are adequate for that purpose. Arkansas S. & L. Board v. Central Arkansas S. & L. Assn., 256 Ark. 846, 510 S.W.2d 872 (1974). Without going through each and every requirement which must be found by the board before a charter is granted, we can see from a careful review of the record that the board considered each organizer’s background and determined that none of the proposed directors or officers had an affiliation with another financial institution, or closely related business, which would affect the independence of the proposed association. We recognize that this was a hard fought case and feelings obviously ran high on both sides. Nevertheless, we find there is substantial evidence to support the decision of the board as affirmed in the circuit court.

Affirmed.

Holt and Hays, JJ., not participating.


text:
    Dessie WARREN and Sylvia KYLE v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY
    82-79
    634 S.W.2d 133
    Supreme Court of Arkansas
    Opinion delivered June 7, 1982

      Zolper & Everett, by: Michael Everett, for appellants.

      Barrett, Wheatley, Smith & Deacon, by: Jack Deacon, for appellee.
   John I. Purtle, Justice.

At the close of the plaintiffs’ testimony in a personal injury suit the trial court directed a verdict in favor of the appellee (defendant). The only argument presented on appeal is that the court erred in granting the motion for a directed verdict at the close of the plaintiffs’ case. We disagree with the appellants’ contention and affirm the judgment of the trial court.

Plaintiffs, Dessie Warren and Sylvia Kyle, sisters and residents of Poinsett County, were injured about 10:00 p.m. on May 5, 1980, when an automobile driven by Sylvia Kyle collided with the wheels of a flat car sitting on a railroad track which crossed Judd Smith Road in Crittenden County, Arkansas. The automobile was damaged and the passenger, Dessie Warren, was seriously injured.

Mrs. Kyle stated she was familiar with the road and knew the railroad crossing was there. She admitted seeing what looked like a board across the road. She told her sister that she had never seen that before and her sister replied that it might be a detour sign. In any event, they did not attempt to stop until they were within 100 feet of the flat car at which time Mrs. Kyle hit her brakes and the automobile “slid casually into the wheel.” There was a crossing signal sign on the other side of the railroad tracks which both appellants had seen before. The driver testified her headlights were working properly, she had good brakes and her vision was good. There was no oncoming traffic meeting her nor any traffic signals beyond the track to indicate that vehicular travel was controlled. The appellant driver said she was driving very slowly and indicated that her speed was in the neighborhood of 30 miles per hour. The windows of the automobile were up and it was a clear night. Mrs. Kyle was looking for the railroad track because she was familiar with the area and knew it was nearby. She admitted knowing a crossbuck sign was located at the crossing. Dessie Warren, the passenger, testified essentially the same as her sister had testified. One of her statements regarding Mrs. Kyle’s actions was, “She was driving slow, because we were trying to figure out what we were going to hit.”

Although not impossible, the cases have been few and far between in allowing a recovery by someone running into a stopped train. A case relied on heavily by the appellants is Missouri Pacific Railroad Co. v. Purdy, 263 Ark. 654, 567 S.W.2d 92 (1978). The Purdy case is cited by the appellants for the proposition that it is not a settled rule of law that a plaintiff can never recover when running into a parked train. This is still the law; however, the facts of the present case do not constitute the situation described in Purdy.

The other case relied upon by the appellants is Hawkins v. Missouri Pacific Railroad Co., 217 Ark. 42, 228 S.W.2d 642 (1950). In Hawkins the trial court directed a verdict for the defendant just as occurred in the present case. However, we reversed on the theory that there was sufficient evidence to permit a jury to find negligence in the defendant and a lesser degree of negligence in the plaintiff who drove his automobile into the side of a standing freight train at a railroad crossing during the night. In Hawkins the accident occurred about 2:00 a.m., November 11, 1948, in Paragrould, Arkansas. The facts reveal that the crossing was a 90 degree one such as exists in the present case and it was a nighttime accident. Both Hawkins and his driver stated they were facing an oncoming car which had its lights on bright and blinded them somewhat. Also, they saw an operating traffic light in the middle of the street ahead of them on the other side of the tracks. They said they thought they had an unobstructed view down the highway, that there were no active signals at the crossing and that there was no brakeman or anyone to warn them that the boxcar was across the tracks. The boxcar had the doors on both sides open. Also, the track was elevated some two to three feet thereby causing meeting traffic to be somewhat hindered by the lights of an approaching vehicle. The Hawkins decision stated:

In the instant case we believe there was evidence from which the jurors might reasonably have found that the defendant through its employees failed to exercise the care which an ordinary prudent man would have exercised under the same or similar circumstances. The time of night, the lights visible across the track, the open space in the line of an autoist’s vision above the raised tracks and beneath the bottoms of the stopped freight cars, the wide open doors of the boxcar through which lights across the track shone while the boxcar stood motionless and silent, the absence of active crossing signals of any kind, the absence of guard or watchman, the fact that this was on a principal street in the business section of a goodsized city, and the fact that the train was then moved a distance down the track with neither sign nor signal given — all this was included in the evidence and if believed by the jury would indicate that defendant created, unintentionally but perhaps carelessly, something like a trap for unwary night drivers . . .

We do not see Hawkins v. Missouri Pacific Railroad Co., supra, as being comparable with the present case to the extent that the appellants should be allowed a recovery. The two ladies both saw the flat car on the track and wondered what it was doing there. One of them thought it was probably a board and the other one said she just wondered what it was they were going to run into. Therefore, both of them admitted failure to use proper care and that they were negligent to the extent of being responsible for this accident. The court made the judgment that the plaintiffs’ evidence would not support a judgment against the defendant. A review of the evidence presented shows that the court’s ruling was correct and was not an abuse of discretion. Therefore, we agree with the trial court and affirm this judgment.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Theresa Lynn HILL, Sherry Laverne LEDFORD, Marsha Gail OVERTON and Dayna J. SNYDER v. STATE of Arkansas
    CR 81-135
    634 S.W.2d 120
    Supreme Court of Arkansas
    Opinion delivered June 7, 1982

      Robert E. Irwin of Irwin ér Kennedy and Bullock, Harding & McCormick, for appellants.

      Steve Clark, Atty. Gen., by: William C. Mann, 111, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

The appellants, four girls ranging in age from sixteen to twenty, were charged with the aggravated robbery of Louis Daniels at the New Hope Grocery in Pope County in February, 1981. A jury found all four guilty and fixed the sentence of each at six years. The applicable statute, Ark. Stat. Ann. § 41-2102 (Supp. 1981), provides a minimum mandatory sentence of six years without suspension of execution of sentence. The jury added to its verdict form the phrase, “we the jury recommend leniency according to the Court’s judgment by consideration of the partial suspension.” No details of the aggravated robbery are known to this court as none of the evidence has been designated to be a part of the record. The record before us consists of only the instructions, requests for instructions and rulings of the trial court with regard to the constitutionality of the mandatory serving of sentences. Jurisdiction is vested in this court pursuant to Rule 29 (1) (c) as one of the issues involves the constitutionality of an act of the General Assembly. We uphold the constitutionality of the act and affirm the trial court.

The trial court instructed the jury only on the offense of aggravated robbery. Appellants contend that the trial court erred in refusing to instruct on lesser included offenses and they argue that theft and robbery are lesser included offenses.

Our general rule on instructing the jury on lesser included offenses was stated in Caton & Headley v. State, 252 Ark. 420, 479 S.W.2d 537 (1972):

* * * We have consistently held that a trial court commits reversible error when it refuses to give a correct instruction defining a lesser included offense and its punishment when there is testimony on which the defendant might be found guilty of the lesser rather than the greater offense. (Citing cases.) * * *

The questions in this case become; are theft and robbery lesser included offenses within aggravated robbery and, if so, is there evidence upon which appellants might be found guilty of the lesser rather than the greater offense? Theft is not a lesser offense included within the definition of aggravated robbery. Higgins v. State, 270 Ark. 19, 603 S.W.2d 401 (1980), Hence no additional discussion of the need for an instruction on theft is necessary. However, robbery is a lesser offense included within the definition of aggravated robbery as those offenses are defined in the Arkansas Criminal Code of 1976. Ark. Stat. Ann. §§ 41-2102 and 41-2103 (Supp. 1981). Hamilton v. State, 262 Ark. 366 at 373, 556 S.W.2d 884 (1977). If there is any evidence to support the giving of the instruction on the lesser included offense, it must be given. Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981). But, if there is no rational basis for acquitting appellants of aggravated robbery and convicting them of the lesser offense of robbery, the lesser instruction need not be given. Ark. Stat. Ann. § 41-105 (3) (Repl. 1977); Hamilton v. State, supra. In this case the trial judge, in refusing the instruction on the lesser included offense, commented that he was going to give only the aggravated robbery instruction “because there is no question — there is no conflict in the testimony that a deadly weapon was used...” The statement is conclusive of the fact that there was no rational basis for acquitting appellants of aggravated robbery and convicting them of robbery because none of the evidence given at trial has been made a part of the record on appeal. Thus, we affirm on the issue of instructing the jury.

Appellants next contend that a statute containing a mandatory minimum sentence with a provision prohibiting the suspension of execution of the sentence is an unconstitutional legislative usurpation of judicial powers. The relevant portions of § 41-2102 are:

(3) (a) Upon ... being found guilty ... of aggravated robbery... such person shall be imprisoned for not less than six (6) years;
(4) The sentences provided for . . . are mandatory and shall not be subject to suspension.

The trial court ruled that the statute made the imposition of the sentence mandatory and that he could not suspend execution of sentence even though the jury had recommended partial suspension. The trial court was correct in its ruling for we have long held that courts have no inherent authority to suspend indefinitely the execution of a sentence. In Davis v. State, 169 Ark. 932, 277 S.W. 5 (1925), we stated:

It is evident that, when a court undertakes on its own motion to suspend a sentence indefinitely, it really refuses to enforce the punishment provided by statute, unless it shall at some future time conclude that it is proper to do so. The power to exercise discretion as to the enforcement of the punishment provided by law and pronounced by the court is vested in the Governor.
We are therefore of the opinion that the circuit court in each instance erred in holding that it had inherent power or any power at all to suspend the execution of the sentence during the good behavior of the defendant. ***

We have consistently held that statutory authority is necessary for a court to suspend the execution of a pronounced sentence. Joiner v. State, 94 Ark. 198, 126 S.W. 723 (1910); Wolfe v. State, 102 Ark. 295, 144 S.W. 208 (1912); Davis v. State, supra; Stocks v. State, 171 Ark. 835, 286 S.W. 975 (1926); Denham v. State, 180 Ark. 382, 21 S.W.2d 608 (1929); Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980). We decline to overrule these cases. The power to grant or withhold the authority of trial judges to suspend the execution of a pronounced sentence properly lies within the General Assembly.

Appellants’ final argument is that during the course of the trial the judge expressed doubts about the constitutionality of the act but, at the time of sentencing, upheld the act. This does not constitute reversible error for a trial judge is at liberty to reconsider earlier rulings. Arnold, Sheriff v. State, ex rel Burton, 220 Ark. 25, 245 S.W.2d 818 (1952); Nance v. Flaugh, 221 Ark. 352, 253 S.W.2d 207 (1952). In addition, on the abbreviated record before us, no prejudice can be demonstrated. In Arkansas we have long held that a

judgment of conviction will be reversed for prejudicial errors only. Lee v. State, 73 Ark. 148, 83 S.W. 916 (1904). This is still the law. We do not reverse for non-prejudicial errors. Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977).

Affirmed.


text:
    DILLARD DEPARTMENT STORES, INC. v. Donnie R. FELTON
    82-56
    634 S.W.2d 135
    Supreme Court of Arkansas
    Opinion delivered June 7, 1982

      Wright, Lindsey é1 Jennings, for appellant.

      Lanny K. Solloway, for appellee.
   Steele Hays, Justice.

Appellee was formerly employed at a warehouse of appellant Dillard Department Stores, Inc., and brings this action for defamation based on statements by supervisory employees of Dillard accusing him of theft. The trial court sitting with a jury awarded appellee $2,000 compensatory damages and $5,000 punitive damages. For reversal, appellant contends, first, the defamatory statements relied upon by the appellee did not exceed the qualified privilege existing under the law and there was no substantial evidence that the statements were made with express or implied malice; and second, the evidence does not support an award of punitive damages. We sustain the argument with respect to punitive damages but affirm the judgment as to compensatory damages.

Stating the facts most favorably to the appellee: On June 28, 1981, at quitting time, a Dillard security officer observed a box of Dillard merchandise in appellee’s car in the parking lot. Appellee was unable to produce a sales receipt, as required of employees who make cash purchases from the company. The following morning he was called to the office of the warehouse supervisor, George Burger. Mr. Burger, Emory Martin, appellee’s immediate supervisor, and the appellee were present. Mr. Burger asked appellee to explain his possession of the merchandise without a sales receipt and his having been seen leaving the warehouse with the merchandise by an unauthorized exit. Appellee’s response was that the exit rule was not enforced and that he had bought the articles the previous week at a company warehouse sale and had left them in Mr. Martin’s office over the weekend. He said the merchandise and sales receipt were in a Dillard’s sack but somehow during the interval the sack was destroyed and the receipt lost. Mr. Burger said, “I think you’re a liar and a thief.” He told appellee he had received an anonymous telephone call that appellee had been attempting to sell two stereo speakers missing from the warehouse, suggesting the evidence might justify criminal prosecution. At this point appellee became angry and walked out of the meeting. Outside Burger’s office as he was leaving, appellee told a fellow employee, Alonzo Waller, that he had been accused “of taking some things.” When Mr. Martin came out of Burger’s office, Waller asked him what had happened and in the presence of several employees Martin said appellee had been fired because he had been caught stealing.

Sometime later appellee’s wife called Mr. Martin to ask why appellee was fired. She testified Mr. Martin said all he knew was “there was an anonymous phone call about some speakers that Ronnie was selling and that there was nothing he could do. ...”

Appellee went immediately to the Employment Security Division to seek unemployment benefits. Appellee testified he told an unidentified woman interviewing him, “... I was fired and accused of theft and dishonesty.” When the ESD interviewer called Mr. Burger to verify appellee’s termination, Burger testified:... “She said, ‘I want to verify that Mr. Felton was fired for alleged theft’ and I just said ‘no,’ that he was going to be terminated for violation of company rules.” This testimony of this conversation is uncontradicted as the unidentified ESD employee did not testify.

Still later Mrs. Willis of the Employment Security Division telephoned Carl Williams, appellant’s Director of Personnel, requesting a letter stating the reasons for appellee’s termination. Mr. Williams wrote in response: “The circumstances leading up to this involves Mr. Felton having possession of merchandise for which he could not produce a receipt.”

First, we consider whether the publication of these communications exceeded the scope of the qualified privilege. The relevant law is summarized in the Restatement (Second) of Torts § 595 (1981):

(1) An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that
(a) there is information that affects a sufficiently important interest of the recipient or a third person and,
(b) the recipient is one to whom the publisher is under a legal duty to publish the defamatory matter or is a person to whom its publication is otherwise within the generally accepted standards of decent conduct.
(2) In determining whether a publication is within the generally accepted standards of decent conduct it is an important factor that
(a) the publication is made in response to a request rather than volunteered by the publisher or
(b) a family or other relationship exists between the parties.

Prosser explains the qualified privilege as follows:

There remain a group of situations in which the interest which the defendant is seeking to vindicate is regarded as having an intermediate degree of importance, so that the immunity conferred is not absolute, but is conditioned upon publication in a reasonable manner and for a proper purpose. The privilege is therefore spoken of as “qualified,” “conditional,” or “defeasible.” It is difficult to reduce these cases to any single statement, and perhaps no better formula can be offered than that of Baron Parke, that the publication is privileged when it is “fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.” W. Prosser, The Law of Torts, § 110, p. 805 (3rd ed. 1964).

One important condition attaches to the qualified privilege, such communications must be exercised in a reasonable manner and for a proper purpose. The immunity does not protect a defendant from publication to persons other than those whose hearing is reasonably believed to be necessary or useful for the furtherance of that interest. Prosser, supra, at p. 819.

We believe the statements made at the June 19 closed-door meeting come within the qualified privilege afforded an employer. Merkel v. Carter Carburetor Corp., 175 F.2d 323 (8th Cir. 1949), 53 C.J.S. Libel and Slander, § 109 (1948). The only persons present other than the appellee were the warehouse manager and a supervisor, both of whom had a legitimate interest on behalf of appellant to investigate appellee’s possession of merchandise without the required receipt.

Nor does the communication from Mr. Martin to appellee’s wife strike us as excessive. The communication was factual and was in response to her inquiry. (See Restatement, supra.) She had an interest in learning the reason for her husband’s termination, making this communication neither unnecessary nor excessive. Thomas v. Kaufman’s, 436 F. Supp. 293 (W.D. Penn. 1977), 53 C.J.S. Libel and Slander § 120 (1948).

We next examine those statements made by appellant’s employees to the Employment Security Division. The trial court held these not to be within the qualified privilege. We disagree. These communications fall within the general rationale for which the qualified privilege was created by protecting statements made in good faith with reasonable grounds for believing them to be true on a subject matter in which the author has a public or private duty to a person having a corresponding duty. 53 C.J.S. Libel and Slander § 89 (1948). Similarly, this privilege extends to reporting agencies. Dun & Bradstreet, Inc. v. Robinson, 233 Ark. 168, 345 S. W.2d 34 (1961). Under the Employment Security Act a discharged employee’s entitlement to benefits depends in part on the circumstances of his termination and plainly the employer’s duty to report accurately to the ESD carries a qualified privilege. We find no evidence that the content of all of the communications, oral and written, to the Employment Security Division was factually inaccurate, beyond what was necessary, or was lacking in good faith.

Finally, the statement by Emory Martin to Alonzo Waller and others that appellee was “fired because he was caught stealing” cannot be similarly disposed of, as we find no justification in fact for Martin’s statement, nor any reason for the recipients (Waller and the other employees) to have an important interest affected by the investigation. Notwithstanding the fact that Waller, rather than Martin, initiated the communication and that some privilege applies to an employer’s right to inform other employees that one of their number has been discharged for theft, nevertheless, when viewed in the light most favorable to the appellee we find the statement exceeds that which was necessary to the sitaution. Martin did not simply state that appellee was under investigation for theft, or for violation of rules, but that appellee was fired because he was caught stealing. The statement was factually incorrect and obviously injurious to the appellee. He was not caught stealing and according to appellant’s argument on appeal he had not even been fired, but had quit. The most that Martin could have said in truth was that appellee had been found to be in possession of goods without a receipt and was suspected of theft. Since we find no legitimate interest necessitating Martin’s statement and find it to have been factually inaccurate at the expense of appellee’s reputation, we think it excessive and therefore supportive of the award of compensatory damages.

Appellant argues that any defamatory impact was effectively nullified by the fact that Waller had already been told essentially the same thing by appellee on leaving the warehouse. But we disagree. There is a vast difference in saying someone is accused of stealing, as opposed to saying that someone has been fired because he was caught stealing. The former plainly implies the possibility of error — the latter, unquestioned guilt. Mr. Martin was under no obligation to divulge anything to other employees, at least at that point, and having chosen to speak, his communication should have been strictly accurate. When this evidence is given its fullest import it exceeds the privilege afforded under law. In Arkansas Associated Telephone Company v. Blankenship, 211 Ark. 645, 201 S.W.2d 1019 (1947), we approved the following language:

“The protection of the privilege may be lost by the manner of its exercise, although the belief in the truth of the charge exists. The privilege does not protect any unnecessary defamation. In order for a communication to be privileged, the party making it must be careful to go no farther than his interest or his duties require. Where the party exceeds his privilege and the communication complained of goes beyond what the occasion demands that he should publish, and is unnecessarily defamatory of plaintiff, he will not be protected, and the fact that a duty, a common interest, or a confidential relation existed to a limited degree is not a defense, even though he acted in good faith.” (At p. 651.)

Turning to the question of malice, the trial judge expressly found no actual malice. The appellee acknowledged that he did not believe either Burger or Martin “had it in for him.” In fact, he admitted that Mr. Martin suggested appellee use his name as a reference for future employment. Appellee argues malice may be inferred from appellant’s failure to further investigate the alleged theft after the June 19 meeting. The argument is unsound. Appellant’s action or inaction in this respect is consistent with its contention that the appellee had quit and consequently there was no reason to continue the investigation or take further steps in the matter.

Although it is said that express malice requires no extrinsic proof and can be inferred by the jury from all of the circumstances of the case, nevertheless where the totality of the evidence is such that fair-minded men could not infer malice, an award of punitive damages cannot be upheld. We find no evidence that any ill-will was harbored by appellant’s employees, or that they were motivated by malice or bad intent toward the appellee, as his own testimony sustains. It is significant that Martin’s statement was not volunteered, but made in response to Waller’s question, an important element in mitigation (Restatement, supra). We conclude the award of punitive damages cannot be upheld. Braman and The Gus Blass Co. v. Walthall, 215 Ark. 582, 225 S.W.2d 342 (1949); Stallings v. Whittaker, 55 Ark. 494, 18 S.W. 829 (1892); Luster v. Retail Credit Co., 575 F.2d 609 (8th Cir. 1978).

Affirmed as to compensatory damages; reversed as to punitive damages.


author: Per Curiam.

text:
    Merril Lee CURRY v. STATE of Arkansas
    CR 80-142
    634 S.W.2d 139
    Supreme Court of Arkansas
    Opinion delivered June 7, 1982
    Appellant, pro se.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Per Curiam.

Petitioner Merril Lee Curry was convicted of murder in the first degree in February 1978 and sentenced to life imprisonment in the Arkansas Department of Correction. We affirmed. Curry v. State, 272 Ark. 291, 613 S.W.2d 829 (1981). This Court later denied petitioner’s petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. Curry v. State (not designated for publication, March 8,1982). She has now filed a petition for credit for the time spent in jail prior to trial.

In the absence of any showing to the contrary, it will be presumed that a sentence is pronounced according to the statutes. Coleman v. State, 257 Ark. 538, 518 S.W.2d 487 (1975). Petitioner does not allege, and it does not appear from the face of the record, that the trial court did not afford her the opportunity to ask for credit for jail time prior to sentencing.

Postconviction relief is not available to an accused who could have asserted the ground of her collateral attack in the trial court before sentence was pronounced but did not. Coleman, supra.

Furthermore, there is no way to credit jail time against a life sentence since a life sentence is for the natural life of the person. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979).

Motion denied.


text:
    Lionel GREEN v. STATE of Arkansas
    634 S.W.2d 140
    Supreme Court of Arkansas
    Opinion delivered June 7, 1982

      Appellant, pro se.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee. -
   Per Curiam.

Appellant Lionel Green, acting pro se, has filed a motion for belated appeal. His attorney Julius Kearney filed a motion for belated appeal in the case which was denied on May 10, 1982. In his motion appellant also asks this Court to declare him indigent and grant him permission to proceed pro se on appeal.

The appellant alleges that within 30 days of the date of his conviction, he informed his attorney that he wished to appeal. In his affidavit in response to appellant’s motion, the attorney admits that he received a letter from the appellant expressing his desire to appeal. Instead of filing a notice of appeal, he asked the trial court to relieve him as counsel and declare the appellant indigent. The trial court has not acted on the motion. Appellant subsequently filed an untimely pro se notice of appeal.

Arkansas Rules of Criminal Procedure, Rule 36.26, provides that trial counsel, whether retained or appointed, shall continue legal representation of a criminal defendant until permitted to withdraw by the trial court or this Court. Counsel has shown no good cause for his failure to continue in his representation of the appellant. Although he avers that he attempted to explain to the appellant “how to get into court” and states that the appellant knew how to prepare legal documents from his previous incarceration, he does not demonstrate that he took any affirmative steps to see that the appellant understood the process whereby the appeal could be perfected. See Houston v. State, 263 Ark. 607, 566 S.W.2d 403 (1978).

This Court will accept an appeal in a criminal case where to do otherwise would deprive the appellant of the constitutional right to effective assistance of counsel. Moore v. State, 268 Ark. 191, 609 S.W.2d 894 (1980). Since we'find that the attorney did not act to protect his client’s right to appeal, and has shown no good cause for his failure to do so, we must grant the appellant’s pro se motion for belated appeal. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See our Per Curiam opinion relating to belated appeals dated February 5, 1979.

Appellant’s request to be declared indigent is denied without prejudice as he has provided no proof of indigency. Appellant’s motion to proceed pro se cannot be granted until such time as he has provided this Court with an affidavit in accordance with Supreme Court Rule 8 (d), Ark. Stat. Ann. Vol. 3A (Supp. 1981), stating that he knowingly and intelligently waives the right to the services of an attorney on appeal. He should be aware that if he insists on proceeding pro se, he will be required to fully comply with the rules of this Court, including the requirement that all abstracts and briefs be printed or typed. If appellant cannot comply with the rules of this Court, he should so state and counsel will be appointed to represent him.

Motion for belated appeal granted.


text:
    John DeCLERK et al v. Bob TRIBBLE
    82-81
    637 S.W.2d 526
    Supreme Court of Arkansas
    Opinion delivered June 14, 1982
    [Rehearing denied July 12, 1982.]

      Wilson, Grider ér Castleman, by: Murrey L. Grider, for appellants.

      Barrett, Wheatley, Smith ir Deacon, and/. F. Sloan, III, for appellee.

      Dudley, J., not participating.

   George Rose Smith, Justice.

The principal issue in this action for damage to a garage building is whether the trial court was right in refusing to enter a default judgment against the appellee, Bob Tribble, after his failure to file an answer within the time allowed. At a trial on the merits the jury found for Tribble. Our jurisdiction is under Rule 29 (1) (c).

The question is whether Tribble’s default was due to “excusable neglect” on the part of his attorney. ARCP Rule 55 (c); Sparks v. Shepherd, 255 Ark. 969, 504 S.W.2d 716 (1974). The only proof to justify the attorney’s neglect is his affidavit that he prepared a timely answer, but upon its completion his secretary put it in a place where it was covered by other papers and was not brought to the attorney’s attention until four days after its due date. If such carelessness is excusable, then any attorney can shift the responsibility for filing any pleading to his secretary by simply dictating the pleading and dismissing the matter from his mind. The trial judge clearly abused his discretion in condoning such negligence.

It is argued by the appellee that the notice of appeal was defective in referring only to the court’s denial of a motion for a new trial instead of to the original judgment on the verdict. No greater specificity was necessary. An order refusing a new trial is final and brings up for review any preceding order involving the merits. Rules of Appellate Procedure, Rule (2) (a) (3) and (b). Moreover, the appellants designated the entire record for the appeal; so the alleged defect in the notice of appeal could not have prejudiced the appellee.

Reversed and remanded for the entry of a default judgment and for the determination of damages alleged in the complaint on file when the default occurred. See S. R. Morgan & Co. v. Pace, 145 Ark. 273, 224 S.W. 483 (1920).

Dudley, J., not participating.


text:
    Joe Willie REED v. STATE of Arkansas
    CR 82-17
    635 S.W.2d 472
    Supreme Court of Arkansas
    Opinion delivered June 14, 1982
    [Rehearing denied July 19, 1982.]

      Robert B. Wellenberger, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was arrested September 27, 1977, on charges of rape, burglary, and theft of property. The next day an information charging him with these offenses was filed, and he was arraigned. Shortly before his arraignment, he was appointed counsel. Following a brief consultation with his attorney, he entered a guilty plea to the three charges, pursuant to a negotiated plea, and was sentenced to 30 years for rape and 10 years on each of the other charges. The sentences were to run concurrently.

On May 15, 1980, appellant initiated proceedings for postconviction relief pursuant to A. R. Cr. P., Rule 37, Ark. Stat. Ann. Vol. 4A (Repl. 1977). He alleged, inter alia, that his sentence was imposed in violation of A. R. Cr. P., Rule 24 and, therefore, his plea was not voluntarily nor intelligently made. After an evidentiary hearing, the court, in written findings of fact and conclusions of law, found to the contrary and denied relief. The court concluded any deficiencies in the September 28, 1977, plea proceeding were supplied at the postconviction relief hearing. Hence this appeal.

We need only to consider appellant’s contention, through present appointed counsel, that the court erred in finding his guilty plea was entered voluntarily, knowingly, and intelligently. He argues that the judgment was imposed in violation of A. R. Cr. P., Rules 24.4, 24.5, 24.6 and 24.7, which provide:

Rule 24.4 in pertinent part:
The court shall not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally, informing him of and determining that he understands:
(a) the nature of the charge;
(b) the mandatory minimum sentence, if any, on the charge;
(c) the maximum possible sentence on the charge, including that possible from consecutive sentences;
Rule 24.5:
The court shall not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. The court shall determine whether the tendered plea is the result of a plea agreement. If it is, the court shall require that the agreement be stated. The court shall also address the defendant personally and determine whether any force or threats, or any promises apart from a plea agreement, were used to induce the plea.
Rule 24.6:
The court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish that there is a factual basis for the plea.
Rule 24.7:
The court shall cause a verbatim record of the proceedings at which a defendant enters a plea of guilty or nolo contendere to be made and preserved.

We are hampered in our review of this matter as the court reporter was unable to supply the court with a record of the September 28, 1977, proceeding which is required by Rule 24.7. In the absence of the required record, the state has the burden of proving the plea was voluntarily and intelligently entered. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980); and Deason v. State, 263 Ark. 56, 562 S.W.2d 79 (1978). We will not reverse the findings of the trial court unless clearly against the preponderance of the evidence. Mitchell v. State, 271 Ark. 512, 609 S.W.2d 333 (1980).

Here, the state introduced the court’s docket. However, it merely reflected the appointment of counsel to represent appellant and to advise him of his rights to a trial by jury and counsel; that the trial court read the charge to the appellant and again explained his rights to which the defendant stated that he understood them following which .he pled guilty to the charges and received the sentences of 30 years for rape, 10 years for burglary and 10 years for theft, the sentences to run concurrently. The appointed attorney, who represented the appellant when he pled guilty, testified that when he was appointed on the day of arraignment he reviewed the investigating officers’ file, talked with them and conferred with and explained to appellant the possibilities of conviction upon a jury trial, including the range of sentences. The appellant had signed a confession to the crimes charged, the attorney was convinced that the confession was voluntary, and that appellant had committed the alleged offenses. He did not remember asking the appellant about prior convictions or possibilities of parole. He did not discuss the crimes of burglary or theft except as to additional punishment. Appellant appeared coherent, although he was upset, afraid and didn’t know what might happen to him. He never complained about any coercion. The court "pretty well left everything” to him as appointed counsel "to advise him of his rights and so on.” He did not remember the questions the trial judge asked the appellant but stated: “He [the court] didn’t go into details of the event. He merely arraigned the defendant again ... he asked him if he pled guilty or not guilty — ” The prosecutor then made a recommendation as to the sentence and the trial judge “didn’t hesitate and rendered judgment right then, and wrote it in the docket.” The trial judge did not ask the appellant anything about the voluntariness of his plea nor the factual basis.

The state’s evidence clearly shows that the trial judge, upon accepting appellant’s plea of guilty, failed to comply with our rules. We have said that compliance with Rule 24.6 is mandatory. Irons v. State, supra. Rule 24.5, which requires that the trial judge himself ascertain whether a plea of guilty is voluntary, is mandatory. McGee v. State, 262 Ark. 473, 557 S.W.2d 885 (1977); Irons v. State, supra; see also Boykin v. Alabama, 395 U.S. 238 (1969); and Byler v. State, 257 Ark. 15, 513 S.W.2d 801 (1974). It is the duty and responsibility of the trial court to determine beyond doubt that a plea of guilty is voluntary, and in order to do so, he should inquire of the defendant personally, substantial compliance being sufficient. Simmons v. State, 265 Ark. 48, 578 S.W.2d 12 (1979). However, reversal is not mandated where the deficiencies in the proceeding are supplied at a postconviction hearing. Deason v. State, supra. See Byler v. State, supra.

Here, on the record presented, when we view the totality of the circumstances, we cannot say with confidence that the state has met its burden of showing that the plea of guilty was voluntarily and intelligently entered.

The judgment of the trial court is reversed and remanded with directions to vacate the sentences imposed and for further proceedings against the appellant as may be appropriate.

Reversed and remanded.