author: George Howard, Jr., Judge. M. Steele Hays, Judge,

text:
    Roy E. MATHENY v. FARMERS INSURANCE COMPANY OF ARKANSAS
    CA 79-16
    586 S.W. 2d 246
    Opinion delivered August 15, 1979
    and released for publication September 25, 1979

      James Howard Smith, P.A., for appellant.

      Laser, Sharp, Haley, Toung & Huckabay, P.A., for appellee.
   George Howard, Jr., Judge.

We are to determine whether the following exclusions contained in an automobile insurance policy shield the insurer, Farmers Insurance Group, from liability on a judgment, in the sum of $4,420.96, obtained against its insured, Elgin and Alan Canley, father and son, respectively, by appellant for damage sustained to appellant’s 1974 Oldsmobile in a one car accident while driven by Alan Canley, age 17 years:

This policy does not apply under Part I (Liability Insurance Coverage): “(10) to damage to (a) property owned or transported by the insured, (b) property rented to or in charge of the insured other than a residence or private garage, or (c) property as to which the insured is for any purpose exercising physical control.
This policy does not apply under Part IV (Coverage for Damage to the Insured’s Automobile):
“(4) with respect to a non-owned automobile (a) to any loss against which the owner of such automobile is covered by other insurance, or (b) arising out of its use in any other business or occupation of the insured, except a private passenger automobile operated or occupied by the named insured or a servant;”

THE FACTS

On April 7, 1974, appellant and Alan Canley were traveling through Lincoln County enroute to Crossett from a weekend trip. Appellant was the owner of the vehicle. Alan, while operating the automobile, fell asleep and, as a consequence, drove off the highway causing property damage in the amount of $4,420.96.

At the time of the one car accident, Farmers Insurance Company of Arkanaas provided automobile liability and collision coverage for Alan and his father, Elgin Canley. When Farmers Insurance Company denied liability for the property damage, appellant’s own collision carrier, Thurston National Insurance Company, paid appellant for the loss sustained. Subsequently, appellant filed his action against Alan and Elgin Canley resulting in a judgment against the Canleys in the sum of $4,420.96. Upon Farmers Insurance Company’s failure to pay the judgment, appellant instituted this action against Farmers Insurance Company. Farmers Insurance Company affirmatively asserted the exclusions contained in its policy issued to Canley as a defense.

After discovery had been completed, both appellant-plaintiff and appellee-defendant filed their motions for summary judgment.

The trial court entered a summary judgment in behalf of Farmers insurance Company stating, in relevant part, as follows:

“The parties have agreed and the Court doth find that there are no material issues of fact in dispute in this cause. It is the finding of the Court that the damages sought to be recovered by the plaintiff in this cause from the defendant are expressly excluded from coverage under the policy of automobile liability insurance by the two exclusions relied upon by defendant.”

THE DECISION

Appellant’s argument for reversal of the trial court may be briefly summarized as:

“. . . a non-owner operator of an automobile is subject to liability for negligence in a suit by an owner-occupant. The present suit against Farmers Insurance Company simply carries the Walton [Walton v. Tull, 234 Ark. 882, 351 S.W. 2d 20] one step further. If a non-owner operator is subject to liability for his negligence in causing collision damage, then that person’s insurance policy ought to be construed, if reasonably possible, to protect him when such liability does occur.”

We are not convinced by appellant’s argument that the trial court committed reversible error. We are persuaded that the issues involved in this case are controlled under the pronouncements of the Arkansas Supreme Court in Farm Bureau Insurance Company v. Lubin, 265 Ark. 536, 580 S.W. 2d 447 (1979) and MFA Mutual Insurance Company v. Wallace, 245 Ark. 230, 431 S.W. 2d 742 (1968).

In Lubin, the Arkansas Supreme Court made it clear that a policy provision excluding property damage coverage for property owned by, transported by, rented to, or in charge of insured was applicable to exclude coverage for property damage, under provisions creating coverage with respect to liability for injury to or destruction of property caused by accident arising out of ownership, maintenance or use of any automobile; and that the insurer owed no duty to defend the insured in automobile owner’s action against insured.

In Wallace, the Arkansas Supreme Court upheld the validity of the “other insurance clause” with reference to uninsured motorist coverage. We are persuaded that this rule indeed is dispositive of the defense asserted in this action relative to “other insurance coverage.”

Moreover, it seems clear that parties are without restraint to agree upon any conditions that are reasonable and not against public policy. MFA Mutual Insurance Co. v. Bradshaw, 245 Ark. 95, 431 S.W. 2d 252.

Appellant argues that Mutual Liability Insurance Co. of Wisconsin v. Puryear Wood Products Co., 247 Ark. 673, is controlling. We do not agree. In Puryear the Arkansas Supreme Court affirmed the trial court in holding that an exclusion contained in a policy did not apply because the exclusion was ambiguous and, accordingly, should be construed strictly against the insurer who prepared the policy.

Affirmed.

M. Steele Hays, J., dissents.

M. Steele Hays, Judge,

dissenting. I do not agree with the affirmance. I recognize that there is authority in support of appellee’s interpretation, which the majority accepts, of those provisions of its policy (set out in the majority opinion), including Farm Bureau Insurance Company v. Lubin, 265 Ark. 536 (April 23, 1979). But there is respectable, and better reasoned, authority to the contrary in the context presented in this case. The provisions are, at best, ambiguous, as was found in Employer’s Mutual Liability Insurance Company of Wisconsin v. Puryear Wood Products Co., 247 Ark. 673, 447 S.W. 2d 139 (1969).1 (See also Aetna Life Insurance Company v. Spencer, 182 Ark. 496, 32 S.W. 2d 310 [1930]). The interpretation accepted by the majority view leaves an insured with both liability and collision coverage uninsured and undefended. At the very least, appellee owed its insured, Elgin Canley and Alan Canley, a defense. I would reverse.


source: Caselaw Access Project

author: George Howard, Jr., Judge. David Newbern, Judge,

license: Public Domain

text:
    Ken HIXSON v. STATE of Arkansas
    CA CR 79-14
    587 S.W. 2d 70
    Opinion delivered August 15, 1979
    and released for publication October 4, 1979

      Douglas W. Parker, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Judge.

The central question presented for review by this appeal is whether the jury’s verdict finding appellant guilty of theft of property by deception is supported by substantial evidence. While a finding that there is substantial evidence requires an affirmance of appellant’s conviction, a finding to the contrary dictates a reversal.

THE FACTS

On October 23, 1978, appellant was accused by information with violating Ark. Stat. Ann. § 41-2203 (Repl. 1977), between March 1, 1977, and January 5, 1978, inclusive, in Sebastian County, Arkansas, Fort Smith District, of unlawfully, feloniously and knowingly obtaining an aggregate sum of money in excess of $2,500.00 by deception, with the purpose of depriving the owners, the membership of three churches in Fort Smith, of their funds by promising to deliver church directories to the churches.

The case was tried to a jury. The jury found the appellant-defendant guilty of the charge and, after deliberating upon the charge, as well as a habitual criminal count (Ark. Stat. Ann. § 41-1001) (Repl. 1977), the jury assessed appellant’s confinement to the Arkansas Department of Correction for a period of 12 years and imposed a fine in the sum of $2,500.00.

Appellant asserts the following points for reversal of his conviction:

1. The evidence submitted is insufficient as a matter of law to support the verdict, and the Court erred in not directing a verdict in favor of the appellant at the close of the State’s case.
2. The Court erred in denying appellant’s motion in limine.
3. The Court erred in refusing to specially instruct the jury prior to permitting evidence to be presented in behalf of the State which involved acts which occurred outside Sebastian County, Arkansas.
THE DECISION
The relevant statutory provisions that appellant was accused of violating are:
“(1) A person commits theft of property if he:
(b) knowingly obtains the property of another by deception or by threat, with the purpose of depriving the owner thereof.
“(2)(a) Theft of property is a class B felony if:
(i) the value of the property is $2,500.00 or more.” (Emphasis added)

We are persuaded that it was incumbent upon the State to establish the following in order to convict the appellant-defendant of the charge brought under the above provisions:

1. That appellant-defendant, at the time he received the monies from the owners, did not intend to carry out his promise to deliver church directories to the churches and the membership thereof in return for the monies received by him.
2. That appellant-defendant knew, at the time he promised to deliver church directories to the churches and the membership thereof that the promise or representation was false and that the promise was made for the purpose of depriving the owners of their property-

We now turn to the record before us, which is rather voluminous, consisting of 87 exhibits and three volumes of testimony, for analysis in order to determine if the evidence presented by the State may be characterized as substantial.

(3) ‘Deception’ means:
(a) “creating or reinforcing a false impression, including false impressions of fact, law, value or intention or other state of mind that the actor does not believe to be true; or
(4) ‘Deprive’ means:
(a) “to withhold property or to cause it to be withheld either permanently or under circumstances such that a major portion of its economic value, use, or benefit is appropriated to the actor or lost to the owner;' and
(c) “to dispose of property or use it or transfer any interest in it under circumstances that make its restoration unlikely.”

Mrs. Rita Sue Rogers, Secretary of Trinity Baptist Church, Fort Smith, Arkansas, testified that on January 16, 1977, appellant entered into an agreement with Trinity Baptist Church and its members to take pictures of the membership and in return for the sale of the pictures to the members, appellant would supply pictorial directories to the church free of charge. The number of church directories to be supplied was 125% of the number of members who had their pictures taken. In other words, the church would receive at the rate of 125 directories for every 100 members who purchased portraits. No money was to be paid by the church.

The evidence clearly shows that appellant received $1,-700.00 from the membership of Trinity, but the church has never received any directories, although appellant promised to deliver the directories within 60 days after the pictures were taken. The photographing of the membership was completed on April 3, 1977.

Mrs. Rogers further testified that the project created such interest and enthusiasm among the members that a group of ladies volunteered to serve as a committee to inform the entire membership of the project and to solicit their support; that the committee scheduled the time for the individual and family sittings for the portraits; and that if shut-ins already had photographs, these photographs were to be placed in the directory for a fee of $5.00.

Mrs. Rogers also stated that appellant delivered a $500.00 personal check to the church, drawn on Sequoyah State Bank, Muldrow, Oklahoma, and made payable to Trinity Baptist Church to guarantee the delivery of the portraits to the membership; that when the pictures were not delivered, as scheduled, the check was deposited for collection, but was subsequently returned marked “account closed.”

Rev. J. Elton Pennington, Pastor of Temple Baptist Church, Fort Smith, Arkansas, testified that appellant received $1,600.00 from his membership for individual and family portraits; that appellant promised to deliver directories within 90 days after the photographic work had been completed. Rev. Pennington further testified that his church would not have participated in the project if it were not for the promise made by appellant to deliver church directories at no cost to the church.

Rev. Willis Truman Moore, Pastor of East Side Baptist Church, Fort Smith, Arkansas, testified that appellant agreed to supply pictorial directories to the church in return for the purchase of individual and family portraits by the members; that 150 families were photographed and paid approximately $3,000.00 to appellant; that the church has never received any directories; that appellant offered one excuse after another when inquiries were made about the directories and that the portraits of the membership were of a very poor quality.

Dan Wilmoth, a representative of Photo World of Memphis, Tennessee, testified that his firm specialized in photographic processing for professional photographers; that appellant came to Memphis in April or May, 1977, to have a roll of film developed and that appellant advised him that appellant was just getting started in business for himself; that appellant discussed the prospects of Photo World printing church directories for appellant’s firm and that while Photo World had never printed church directories, an agreement was made with appellant whereby Photo World would print the directories for $1.50 a copy with a minimum of 200 copies; that Photo World received the necessary materials for only one church directory and that was for Bethany Presbyterian Church. However, Mr. Wilmoth testified, the directory was never printed because appellant owed Photo World $1,200.00 for work previously done in which Photo World received an insufficient fund check that had not been made good; that appellant told Photo World that appellant could not pay the $1,200.00 at that time because appellant had paid $5,000.00 on a property note. Mr. Wilmoth further testified that Photo World printed its first directory, during its 11 years of existence, in 1978.

Testifying further, Mr. Wilmoth stated that when appellant requested Photo World to commence work on the materials supplied for the one church directory, appellant was advised to “send me Three Hundred Dollars ($300.00) Cashiers’ Check and I’ll get it printed for him.”; that a day or two later, appellant called and stated, “hey, I can’t get the money, you know, can you do it, please?” Wilmoth replied, “I’ll tell you what, you send me One Hundred Fifty Dollars ($150.00) and I’ll do it.” Wilmoth testified he never heard anymore from appellant.

Dan Wilmoth also stated that the cost for printing a color 8 x 10 ranges from .75 cents to $4.50.

Don Hixson, uncle of the appellant, testified that he began working for appellant on May 15, 1977; and that he has been a photographer most of his life and that appellant did not know anything about photography and that he, Don Hixson, endeavored to teach and help appellant in appellant’s new venture; that no directories were ever delivered while he worked for appellant; that appellant paid him a salary of $250.00 per week.

Don Hixson also stated that appellant’s firm is still soliciting business and holding itself out as a specialist in church directories and guaranteeing deliveries.

The record contains, as exhibits, brochures, flyers and business cards circulated by appellant containing the following declarations designed to induce churches and church members to sponsor appellant’s project:

1. Pictorial Enterprise specializes in pictorial church directories with instant proofs which means only one trip to the church for the family.
2. We will put up a bond if necessary.
3. Plenty of references from other churches.
4. Portraits — living color-$24.95 value — $8.95 plus tax.

Appellant argues essentially, for the reversal of his conviction, that his promise to deliver church directories within 30 to 90 days after the termination of the photographic work was “mere puffing” and, moreover, the failure of appellant to perform a “promised future act” is not criminal.

We are not persuaded by appellant’s argument inasmuch as it is plain from the evidence in this record that appellant’s conduct exceeded the conduct of a seller or a dealer in praising the virtues of something that he has to offer for sale and which is not calculated to, or is unlikely to deceive ordinary persons addressed. The evidence is crystal clear that the representations and promises made by appellant to deliver the church directories, which was an intricate part of the entire project and was the sole motivating factor that induced the churches and the membership to participate in the project, were false as a matter of fact and as to the value of the articles that the churches and members were to receive in return for delivering their monies to the appellant. Moreover, it is plain from this record that appellant had no experience or expertise either in photography or in the compilation of church directories; and that at the time that appellant made the promises to deliver the directories, appellant did not possess the facilities to print a directory, nor had he made arrangements with any other firm or source for the preparation of the directories.

The evidence establishes clearly that appellant made use of the funds received for purposes other than for what was promised by appellant. Consequently, the membership of the churches involved have been deprived of the use and benefit of their property; and it seems obvious that restitution is unlikely.

Appellant further argues that the trial court erred in denying appellant’s motion in limine. Here, appellant sought to prevent the introduction of testimony concerning the total amount of money spent for photographs and directories ordered by each church. We deem it sufficient to state that the evidence of the money spent was relevant and was admissible to establish the scheme or plan of the appellant.

Appellant finally argues that the trial court committed reversible error in refusing to give cautionary or limiting instructions to the jury, prior to permitting evidence to be presented involving acts which occurred outside of Sebastian County. It is well recognized that the granting or refusal of a cautionary instruction lies within the discretion of the trial court. After carefully reviewing this record, we find no abuse of discretion on the part of the trial court in refusing to specifically instruct the jury prior to the reception of evidence involving other similar acts. See: Rule 404(b) of the Uniform Rules of Evidence. Moreover, the record reflects that the-trial court did give a cautionary instruction to the jury prior to its deliberation as follows:

“The Court has admitted testimony of other conduct similar to that charged in the information. You will not be permitted to convict the defendant upon such testimony. Evidence of other similar conduct, if you believe another offense has been proven, is admitted solely for the purpose of showing motive, design and particular criminal intent, habits and practices, guilty knowledge, good or bad faith, and you should consider such evidence for this purpose alone and it shall not be considered in fixing any punishment that might be imposed.
“The Defendant is not on trial for any offense except the alleged offense for which he is on trial.”

We conclude, after carefully reviewing the evidence in the light most favorable to appellee, as we must, Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975), the verdict of the jury is supported by substantial evidence. Accordingly, we affirm.

Newbern, J., dissents.

David Newbern, Judge,

dissenting. Appellant stands convicted of theft of property, having obtained it by deception with the purpose of depriving the owner of it. Ark. Stat. Ann. § 41-2203 (1) (b) (Repl. 1977). This alleged theft was charged as a class B felony because in the information and bill of particulars the State accused Appellant of having taken property of a value in excess of $2500.00. See Ark. Stat. Ann. § 41-2203 (2) (a) (i) (Repl. 1977).

The evidence of the intent of the Appellant to deceive was extremely weak. The record presented a picture of a person struggling to succeed in a business he thought would make a profit. It is true he lacked experience as a photographer, and he was an abysmal failure as a businessman, but his failure is not a crime. The majority opinion refers to instances in which he pleaded with a printer to get directories printed, and the record shows a great deal of effort expended in trying to get the directories together. The “substantial evidence” to which the majority refers is really nothing more than Appellant’s failure to deliver the directories. The argument seems to be that Appellant must have intended to deceive with respect to the agreements he entered to produce directories after he had failed so miserably to produce in accordance with some of his prior agreements. In quoting the statutory definition of “deception,” the majority opinion leaves out the part of subsection (3) (e) of the statute which is as follows:

“Deception as to a person’s intention to perform a promise shall not be inferred solely from the fact that he did not subsequently perform the promise.” Ark. Stat. Ann. § 41-2201 (3) (e) (Repl. 1977).

Assuming there was substantial evidence of deception here, however, I believe this record is devoid of evidence that the Appellant obtained property in excess of a value of $2500.00 as a result of the offenses charged. As the majority opinion points out, the churches were to pay nothing for the directories. Those institutions were out the value of whatever their services (no pun intended) might have been worth, but there was no attempt whatever to produce evidence of the value of the efforts they expended in getting their constituent families rounded up for the photography sessions. Nor was any attempt made by the State to show the difference between the value of what the church members received (the photographs) and what they were promised (the photographs plus the “free” directories).

The argument could be made that regardless of the fact that many if not most of the church members received photographs for their money, their money — all that was paid to Appellant for photographs and directories — was obtained by deception. The logical extension of that argument, and its fallacy, is perhaps best demonstrated by these illustrations which bear degrees of analogy:

1. X promises A a one-carat diamond in exchange for $1000.00. A gives X $1000.00, but X then delivers to A a chunk of glass which is completely without value and which X intended all along to deliver to A instead of a diamond.
2. X promises A a one-carat diamond in exchange for $1000.00. A gives X $1000.00, but X then delivers to A a diamond weighing three-quarters of a carat which X intended all along to deliver to A, knowing of the deficiency. The lesser stone is worth $750.00.
3. X promises A a one-carat diamond in exchange for $1000.00. A gives X $1000.00, but X then delivers to A a diamond weighing one and one-quarter carats, which X intended all along to deliver to A, knowing it to be larger than the one promised. The stone delivered is worth $1200.00.

If no account is taken of the value received by A, then in each of these illustrations, X could be convicted of theft of property of a value in excess of $1000.00. I simply cannot believe our statute contemplates that result in illustrations 2. and 3.

The record here shows many church members received and accepted photographs in exchange for their money. The most that can be said for certain is that Appellant took those parts of their payments which could fairly be attributed to the value of the “bonus” directories. We have no idea what that value was.

As pointed out in footnote 4. of the majority opinion, the record here is indeed “replete” with testimony as to other churches which had entered agreements with the Appellant. Even if that evidence was relevant to show a scheme or Appellant’s intent, it was completely irrelevant to show the value of the property obtained in the theft alleged here.

I would reverse and remand this case simply because there was no showing of the value of the property obtained by this Appellant.

      This appeal was originally filed in the Arkansas Supreme Court, but was subsequently assigned to this Court under Rule 29(3) of the Rules of the Supreme Court of Arkansas.

      On October 11, 1978, the State, pursuant to a motion filed by appellant-defendant, filed a bill of particulars stating that individual members and their families of 27 churches, in Arkansas and Oklahoma, and in Sebastian County, Arkansas, Fort Smith District, in particular, had paid monies to appellant-defendant “. . . upon the defendants’-representation that the churches and members would receive church directories in return for monies paid, the defendants knowing at the time that these representations were made that they were false and without any intent being made before or after receiving the monies to carry out those representations, the representations being made for the purpose of depriving the owners of their money. ”

      Deception and depriving, in relevant part, are defined in Ark. Stat. Ann. § 41-2201 (Repl. 1977) as:

      This record is replete with testimony from the following named pastors and churches whose experiences with appellant parallel the experiences of Mrs. Rogers, Rev. Pennington and Rev. Moore:
      (a) Rev. Don Chandler, Pastor of Wakefield Baptist Church, Little Rock, Arkansas, whose members paid between $3,000.00 and $4,000.00; and, y
      (b) Rev. Jerry Highfill, Pastor of Sunset Baptist Church, Ponca City, Oklahoma, whose members paid $3,090.34; and,
      (c) First Christian Church, North Little Rock, Arkansas, whose members paid $2,000.00; and,
      (d) Rev. Robert S. Jackson, Sr., Pastor of First Baptist Church, Poteau, Oklahoma, whose members paid approximately $2,509.23; and,
      (e) Father Alan Loth, Pastor of Mother of Sorrows Church in Apache, Our Ladies in Sterline Church and St. Anna’s Church in Elgin, Oklahoma, whose members paid approximately $1,400.00; and,
      (f) First United Methodist Church of Harrison, whose members paid $1,374.24; and,
      (g) First Church of the Nazarene, North Little Rock, Arkansas, whose members paid $1,825.00; and,
      (h) Rev. William R. Edwards, Pastor of Elmdale Baptist Church, Springdale, Arkansas, whose members paid $2,010.00; and,
      (i) First Baptist Church, Arkoma, Oklahoma, whose members paid $1,100.00; and,
      (j) Church of the Nazarene in Rogers, Arkansas, whose pastor paid $136.20, but had no knowledge of the amount of money paid by his membership; and,
      (k) Church of Christ in Kingfisher, Oklahoma, whose members paid $656.35; and,
      (l) Bethany Presbyterian Church of Muskogee, Oklahoma, whose members paid an undetermined amount of money; and,
      (m) First Free Will Baptist Church of Ada, Oklahoma, whose members paid $2,299.00.

      Evidence contained in this record reveals that there were times when choirs and various auxiliaries were present at their respective churches waiting for appellant to photograph them, but appellant never appeared; and that it was necessary to reschedule the photographing.

      Aside from the testimony of Dan Wilmoth that appellant told him that appellant paid $5,000.00 on a property note, the record also discloses that funds were used to purchase a horse, to pay tractor repair bills and for other purposes.


author: David Newbern, Judge.

text:
    D. L. ADAMS, d/b/a D. L. ADAMS MOTORS v. HUDSPETH MOTORS, INC.
    CA 79-17
    587 S.W. 2d 227
    Opinion delivered August 15, 1979
    and released for publication October 4, 1979

      Roy Gene Sanders, of Matthews & Sanders, for appellant.

      Kenneth R. Reeves, of Pinson & Reeves, for appellee.
   David Newbern, Judge.

This case was appealed to the Arkansas Supreme Court and by that Court assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).

The trial court granted summary judgment in favor of Appellee. Appellee’s version of the facts, discerned from affidavits submitted on the motion for summary judgment and from discovery responses, is that Coy White owed Hudspeth Motors, Inc., (Appellee) SI 100.00. White gave Appellee a check to pay the account, and the check was returned for insufficient funds. L. D. Yarbrough, Sales Manager of Appellee, after informing White of the necessity of promptly clearing this indebtedness, agreed to give White a few more days to pay. The extension of time was granted, based on White’s suggestion that Appellee take and “hold” the title to a 1976 Datsun, owned by White, until White could come up with the money. The title to the truck was not assigned on the certificate of title to Appellee. Rather, the certificate of title was simply held by it, to be released upon satisfaction of White’s account.

According to L. D. Yarbrough’s affidavit, John Eaton approached Appellee while Appellee was holding the certificate and informed Mr. Yarbrough that he, Eaton, had purchased the truck from White and then sold it to Appellant, D. L. Adams. Eaton asked Yarbrough to release the certificate, and said he would then bring back a draft from Adams from which Appellee could take sufficient funds to clear White’s account. Yarbrough refused to release the certificate until he, on behalf of Appellee, had the draft in hand. Thereafter, Eaton returned to Appellee with a draft from D. L. Adams Motors made out in favor of “Hudspeth Motor Co.” in the amount of $2325.00, and showing it to have been made in exchange for:

“Datsun 1976 Pickup 836198”

and stating the following condition:

“ODOMETER (MILEAGE) STATEMENT MUST BE ENCLOSED WITH CLEAR NOTARIZED TITLE WITH ALL LIENS (IF ANY) RELEASED”

Appellee does not deny endorsing the draft.

Appellee then admittedly executed an “Odometer Mileage Statement” showing “Hudspeth Motors Inc.” as the seller of the truck. The reason given by Appellee for doing so was that it was a necessary condition to acceptance and payment of the draft. Appellee gave Eaton a check for $1225.00, which was the balance from the draft after subtracting the amount owed to Appellee by White.

The parties agree that thereafter D. L. Adams Motors sold the truck to C. L. Pennington, and that the truck was taken from Pennington by F.B.I. agents who had discovered it was a stolen vehicle.

Pennington brought suit against D. L. Adams Motors for the purchase price he had paid for the truck. Adams im-pleaded Appellee, claiming breach of warranty of title, deceit, and violation of the federal law requiring truthful odometer statements (P.L. 92-513). Judgment was had by Pennington against Adams, and that aspect of the case is not before us. We are concerned only with the claim of Adams, the Appellant, against Hudspeth Motors, Inc., the Appellee.

Appellee moved for summary judgment on Appellant’s claim. Appellee’s motion was accompanied by L. D. Yar-brough’s affidavit, stating that Appellee was not the owner of the truck and had not owned it previously. There were also affidavits by White and Eaton, presented in support of the motion. White stated Appellee had never owned the truck and that Eaton was the one who purchased the truck from White. Eaton’s affidavit said he had never been employed by, or acted as agent for, Hudspeth Motors.

In support of its motion, Appellee argued that these affidavits made it clear that Appellee had never owned the truck, and that proof of such ownership was an essential element of the breach of warranty of title claim.

In response, Appellant filed no counter-affidavits but replied that there was “sufficient evidence” (presumably meaning sworn discovery responses) indicating that Appellee had in fact sold the truck to Appellant. The sworn discovery responses were to the effect that Eaton had represented himself to be the agent of Appellee when Appellant purchased the truck, that Appellee had accepted a draft clearly intended to be payable to appellee as owner of the truck, thus representing itself to be the owner, and that Appellee had represented itself to be the owner of the truck on the odometer statement. Each of these was clearly stated as a fact in verified responses to discovery contained in the record and further supported by exhibits in the record, including a copy of the draft and a copy of the odometer statement.

The trial court granted Appellee’s motion for summary judgment, and the Appellee contends it was proper to do so because Appellant had filed no counter-affidavits.

For the proposition that affidavits as opposed to other evidence in the record, such as discovery responses, are required to support a response to a motion for summary judgment, Appellant cites language from Hughey v. Bennett, 264 Ark. 64, 568 S.W. 2d 46 (1978), which says affidavits are required. The Hughey case, however, can hardly be considered precedent for that point, as there the respondent to the motion did nothing but file a general denial. The record in that case was completely devoid of any affirmative assertions of fact by her.

One has only to look to the statute to see a recitation of circumstances in which affidavits are not required in support of a response to a properly documented motion for summary judgment. Ark. Stat. Ann. § 29-211 (c) (Supp. 1977), says, in part:

The adverse party may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. ...

If it needs further spelling out, one need only look to Ashley v, Eisely, 247 Ark. 281, 445 S.W. 2d 76 (1969), and Purser v. Corpus Christi State National Bank, 248 Ark. 54, 522 S.W. 2d 187 (1975).

The discovery responses in the case at hand clearly raise questions whether Eaton was Hudspeth Motors’ agent and whether Hudspeth Motors was the owner of the truck. These are undoubtedly material, at least to the breach of warranty of title claim.

Reversed and remanded.

Chief Judge Wright and Judge Pilkinton dissent.

      Apparently this motion and the subsequent summary judgment covered all of the theories of action alleged by Appellant against Appellee.

      The new Arkansas Rules of Civil Procedure (ARCivP), Rule 56, supplanting the statute which was in effect when the complaint in this case was filed, contains this same provision.


text:
    Kenneth D. UTLEY v. STATE of Arkansas
    CA CR 79-15
    586 S.W. 2d 242
    Opinion delivered August 15, 1979
    and released for publication September 5, 1979

      Michael Dabney, Public Defender, by: Denny Hyslip, Deputy Public Defender, for appellant.

      Sieve Clark, Atty. Gen., by: Paul N. Means, Asst. Atty. Gen., for appellee.
   David Newbern, Judge.

This case was appealed to the Arkansas Supreme Court and by that Court assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).

Appellant was convicted of theft of property in violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977). Theft of property is a class C felony if the value of property is less than $2500 but more than $100. Ark. Stat. Ann. § 41-2203 (2) (b) (i) (Repl. 1977). Theft of property of less than $100 value is a class A misdemeanor. Ark. Stat. Ann. § 41-2203 (2) (c) (Repl. 1977). Appellant was convicted of the felony offense and sentenced to confinement of “two years in the State 'Department of Correction, with one year suspended upon Condition defendant serve one year in the county jail and make monthly reports to the Probation Officer.”

The sole question is whether the trial court committed reversible error in failing to submit to the jury a jury verdict form which would have permitted it to find Appellant guilty of the lesser included (misdemeanor) offense. At the end of the trial, the judge instructed the jury with respect to both misdemeanor and felony theft, but refused to give the jury any verdict form other than one permitting it to find the Appellant either guilty of the felony or not guilty. Counsel for the Appellant specifically requested that the form include the lesser included misdemeanor, objected to the refusal to submit it and then asked that his objections be noted.

There is no doubt the jury had sufficient evidence before it to convict the Appellant of theft. Appellant and a friend named “Mike” encountered each other on Dickson Street in Fayetteville. (Appellant was not sure if Mike’s last name was Dawson or Swanson.) Appellant said he told Mike of the loss of his (Appellant’s) clothing, having had it “ripped off” from his car in Fort Smith. Mike, according to Appellant, was flush with his $400 social security check and agreed to lend Appellant $100, whereupon directly they proceeded to a Wal-Mart Store in Springdale to buy clothes.

Appellant and Mike attracted suspicion at Wal-Mart. They were observed with two Wal-Mart sacks inside the store. The sacks were the type in which customers’ purchases were packaged upon payment. Both sacks were in a single shopping cart. They went about the store picking up merchandise and placing it in the sacks. Appellant at some point was observed by Wal-Mart security personnel to have placed his coat over the top of the cart in a manner which concealed whether the sacks had been stapled closed as would be the case of most sacks leaving the store containing paid-for merchandise. Appellant testified his coat was too small to have covered both sacks.

A Wal-Mart security guard who had observed Appellant and Mike inside the store testified he apprehended them in the parking lot after they, together, had taken the cart with the sacks outside. The guard testified that Appellant pushed the cart out with his coat still on top of it. Upon learning the identity of the guard, Mike broke and ran. Appellant did not run at first, but picked up his coat and began putting it on, and then he ran and was caught and returned to the store. Upon reaching the store, the goods from the two sacks were removed and comingled. Store officials totaled the retail value of all the goods in the two sacks at $224.87.

Appellant testified he had no intent to steal, and that he knew Mike would lend him only $100. Thus, he was consciously keeping track of the value of the goods in “his” sack. He said there were some jeans and some other items which would not have exceeded $80 purchase price. He explained the lack of evidence of payment by saying he and Mike had separated in the store toward the end of their shopping venture, and that when he approached Mike and inquired about going through the check-out line, Mike said it had “already been taken care of.” The cart at that time was beyond the cash registers, and between them and the exit, as due to some construction work on the store building, merchandise was temporarily being displayed near the exit, and Appellant and Mike had examined some of the items located there.

Reading the entire record left me with nothing which would permit characterization of this defense as other than flimsy. Appellant tried to convince the jury he left the store with those goods, believing they had all been paid for. But our job is not to come up with an evaluation of the strength of Appellant’s defense. Rather, we must decide whether there was a “rational basis” upon which the jury could have found him guilty of theft of property of a value less than $100. Ark. Stat. Ann. § 41-105 (3) (Repl. 1977) is as follows:

The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.

Most of the cases in which this point is raised deal with instructions rather than verdict forms. However, we concur with Appellant that even though the trial court explained the fact that theft of property having a value of less than $100 was a misdemeanor, his refusal to include it in the verdict form nullified the instruction. The judge, in addition, made no effort to explain the possibility of finding guilt on a lesser offense. Thus, we receive this case as though no instruction had been given on the lesser offense, although we cannot ignore the confusion which may have been present in the minds of some jurors resulting from this inconsistency.

Appellee cited Caton and Headly v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972); Frederick v. State, 258 Ark. 553, 528 S.W. 2d 362 (1975) and Barksdale v. State, 262 Ark. 271, 555 S.W. 2d 948 (1977), for the proposition that it is not error for the trial court to fail to instruct the jury on lesser offenses where the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent.

In Catón, the Arkansas Supreme Court held it was not error to refuse instruction of a lesser offense where the evidence “clearly shows” defendant to be guilty of the greater offense or innocent. But there, the Court was being asked to find the old “shoplifting offense” to be included in grand larceny. The Court found it was not necessarily included. In Frederick, the Supreme Court found it was justified in refusing to reverse for failure to instruct on assault in an assault with intent to rape case “. . . where the undisputed evidence shows that the accused was guilty of assault with intent to rape or nothing at all.” 258 Ark. at 557. (Emphasis added.) In Barksdale, the Supreme Court said refusal to instruct on the lesser offense was justified because the jury could not have reached a decision of guilt on the lesser offense. There, the accused admitted entering the Baptist Student Union building at the University of Arkansas, Pine Bluff, but testified he did so after dark with no intent to commit any offense. He was charged with burglary, a class B felony, and he insisted on an instruction on breaking and entering, a class D felony. This insistence was based on the theory that when he entered the building, it was not occupied, and thus it was a mere “building” (Ark. Stat. Ann. § 41-2203 (Repl. 1977)) rather than an “occupiable” structure (Ark. Stat. Ann. § 41-2002 (Repl. 1977)). His argument seemed to be that he could have been found guilty of breaking and entering, a lesser offense against property only, rather than burglary, which, according to the Code Commentary after Ark. Stat. Ann. § 41-2003 (Repl. 1977), is an offense against persons rather than property.

Justice Roy found no basis on which the jury could have returned the lesser included offense conviction, as the only issue was the intent of the Appellant rather than the nature of the building, which was unquestionably “occupiable.”

Thus in both the Frederick and Barksdale cases, the evidence on the critical point was not disputed by the accused.

Juxtaposed to these cases, we find Fike v. State, 255 Ark. 956, 504 S.W. 2d 363 (1974), where the defendant was found guilty of assault with intent to rape. He sought an instruction of the lesser included offense of assault, and that instruction was refused. There the Supreme Court reversed the conviction even though the accused presented no evidence to contradict the story of the prosecuting witness. However, the prosecutrix said the accused did not strike or rape her but did throw her to the ground once after making improper (sexual) advances. There the Court said:

In the case at bar, it is not questioned that the prosecutrix’ testimony is sufficient to sustain the verdict of assault with intent to rape. However, the jury has the sole prerogative to accept all or any part of a witness’ testimony whether controverted or not. Therefore, the jury had the absolute right, as the trier of fact, to evaluate the evidence and consider whether only an unlawful assault was committed upon her by appellant or even acquit him. The trial court should have given the instruction relating to the lesser included offense. 255 Ark. at 959.

In Milburn v. State, 260 Ark. 553, 542 S.W. 2d 490 (1976), the defendant was convicted of possession of marijuana with intent to deliver. One ground for reversal was the trial court’s error in failing to instruct on the lesser offense of possession. Here again, the Supreme Court concluded the State’s own evidence (that accused had been smoking marijuana in the car from which large quantities had been seized) was sufficient to raise the necessity of instructing on the lesser offense. The Supreme Court, in reversing the conviction, said:

“. . . (I)t was solely the prerogative of the jury, as the trier of fact, to evaluate the conflicting evidence and draw its own inferences as to why the appellant had the marijuana in his possession.” 260 Ark. at 558.

At the conclusion of the trial of the case at hand, when the trial court presented the suggested verdict form, the following colloquy occurred between the judge and Appellant’s counsel:

MR. DABNEY: You are offering instruction on a lesser included offense, but there is not one provided in the verdicts.
THE COURT: There is no evidence.
MR. DABNEY: There is evidence the property in his possession was less than $100.00.
THE COURT: It was all in his possession.
MR. DABNEY: But the property he intended to take was less than $100.00.
THE COURT: The evidence is it was all in one cart.
MR. DABNEY: Note our objections to the court’s refusal to include the misdemeanor offense in the verdict.

This discussion did not exactly highlight the real issue. The judge’s position that the accused was in possession of all the property assumed he knew all of it was unpaid-for and was participating in the theft of both sacks. Appellant’s counsel did not explain to the judge any possible theory supported by Appellant’s testimony or the State’s evidence, which would justify a conclusion that he did not know all of it was unpaid-for. The only possible theory of that kind is an assumption that Appellant thought when Mike said it was “already taken care of,” he meant Mike’s was already paid for but Appellant’s was not.

It is clear that one may be in possession of stolen property or may actively participate in transporting it without being guilty of an offense, as long as there is no knowledge of the theft or good reason to believe the goods were stolen. Ark. Stat. Ann. § 41-2206 (Repl. 1977). To have committed the offense charged here, or the lesser misdemeanor, Appellant must have “knowingly” taken property. Ark. Stat. Ann. § 41-2203(l)(a) (Repl. 1977). Had Appellant been found to have thought himself in possession of only $80 worth of stolen property, he could have been convicted only of the misdemeanor. Was there a “rational basis ” for the jury to have reached that conclusion? We think not. The only evidence in favor of Appellant was his own testimony. If the jury accepted his statement about believing the goods were paid for, it would have concluded he had no intent to steal or knowledge that the items were stolen. After all, that was his contention. If the jury disbelieved Appellant, as it apparently did, it would have had to conclude he was aware all of the property in the cart was stolen. It is just too far-fetched to conclude that when Appellant, according to his own testimony, suggested he and Mike go to the cash register and pay for the goods, he was dissuaded from doing so by Mike’s remarks from which he concluded his own “share” of the property had not been paid for. The analogy to Barksdale v. Stale, supra, is very strong. Here, the disputed issue was the broad question of guilt or innocence, based on whether accused had sufficient intent or knowledge to have committed the crime charged. The crucial issue with respect to the error alleged in failure to instruct on the lesser offense was really undisputed. The State could concede Appellant only had $80 worth in “his” sack, and a conviction would still have to be sustained if there was no rational basis for a jury to determine Appellant intended to participate only in stealing that amount rather than the whole.

This case is difficult, and we are troubled by the confusion which arose at the end of the trial caused by the inconsistent verdict form and instruction. We find, however, that the extra instruction on the misdemeanor was harmless error, and there was no rational basis upon which the jury could have returned a verdict of other than guilty of the offense charged or not guilty.

Affirmed.

        Fike v. State was specifically distinguished in Frederick v. State on the basis that in Frederick the evidence was undisputed.


author: Ernie E. Wright, Chief Judge.

text:
    Judy RYAN v. NAPA, GENUINE PARTS CO., and SENTRY INSURANCE COMPANY, Insurance Carrier
    CA 79-47
    586 S.W. 2d 6
    Opinion delivered August 22, 1979
    and released for publication September 12, 1979

      Dewey Moore, Jr., for appellant.

      Donald P. Callaway, of Bethell, Callaway and Robertson, for appellees.
   Ernie E. Wright, Chief Judge.

This appeal is from a judgment of the Pulaski County Circuit Court affirming a decision of the Workers’ Compensation Commission, and was transferred to the Court of Appeals by the Arkansas Supreme Court pursuant to Rule 29(3).

The Administrative Law Judge heard the appellant’s claim and made an award in favor of appellant. Upon appeal to the full Commission the decision of the Administrative Law Judge was adopted, and on appeal to the circuit court the opinion and award of the Workers’ Compensation Commission was affirmed.

In this appeal appellant contends, first, that the circuit court erred in finding that appellant was not a full time employee under Arkansas Law and entitled to weekly benefits of $77.00 per week rather than the $48.00 weekly awarded; and second, that the court erred in not finding that appellee was liable for a fifteen per cent penalty for alleged safety violation under Ark. Ann. Stat. §81-1310 (d) and §81-108 (a).

On the first point of alleged error, there was testimony on the part of the appellee that appellant was hired as a part time worker only and she was expected to work only four hours a day on five days a week, that some additional hours were available for her from time to time, but she was not required to work in excess of her normal four hours per day. The payroll record reflects that she actually generally worked twenty some odd hours per week. The appellant testified that it was her understanding that she would be available for work the full eight hours per day if necessary.

The question raised involves the application of Ark. Stat. Ann. § 81-1312 in determining the average weekly wages.

The rule is well settled that if there is substantial evidence to support the Commission’s finding the decision of the Commission must be affirmed on appeal.

The case is distinguished from the case of Gill v. Ozark Forest Products et al, 255 Ark. 951. In that case the court found it was undisputed that the contract of hire was based on eight hours a day and five days a week whenever work was available.

Clearly there was substantial evidence to support the Commission’s finding that the average weekly wages of the appellant should be computed on the basis of a normal part time work schedule of twenty hours per week, plus overtime actually worked. The trial court was correct in affirming the Commission’s finding on this point.

On appellant’s second and only other point for reversal, we do not find that the court erred in affirming the decision of the Commission rejecting the appellant’s request for imposition of a 15% penalty under Ark. Stat. Ann. § 81-1310, which provides:

“Where clear and convincing evidence that an injury or death is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employer, compensation or death benefits provided by the Act (Workers’ Compensation Act) shall be increased by fifteen per cent (15%). This fifteen per cent (15%) increase shall be paid into the Second Injury Fund, less any attorney’s fee attributable to it.”

Appellant cites no specific safety statute or official regulation it is contended the employer violated other than Ark. Stat. Ann. §81-108, which is not a part of the Workers’ Compensation Law, and which only in general terms requires every employer to furnish employment which shall be safe for the employees, furnish and use safety devices and safeguards, and adopt and use methods and processes reasonably necessary to protect the life, health, safety and welfare of such employees.

The Commission found that the appellees are not shown to be liable under §81-1310 (d).

Before the penalty provision could be invoked it would have been necessary for appellant to have established by clear and convincing evidence that appellant’s injury was caused in substantial part by the failure of the employer to comply with Arkansas Safety Statute or regulation pertaining to safety of employees.

The injury of appellant was sustained incident to a conveyor belt that extended out part way in an aisle. There is no contention that the employer was guilty of violating any statute or regulation specifically dealing with conveyor belts or aisles. Also, it is not shown that any injury had previously occurred incident to the conveyor belt.

We are unable to say that the finding of the Commission is not supported by substantial evidence. Dednam v. American Machine & Foundry Co., 235 Ark. 962

We affirm the judgment of the court in affirming the award made by the Worker’s Compensation Commission.

Penix, J., not participating.


text:
    Jerry McCROSKEY v. STATE of Arkansas
    CA CR 79-16
    586 S.W. 2d 1
    Opinion delivered August 22, 1979
    and released for publication September 12, 1979

      John W. Achor, Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   Ernie E. Wright, Chief Judge.

This was an appeal to the Arkansas Supreme Court and has been assigned to the Court of Appeals for disposition pursuant to Rule 29(3) of the Arkansas Supreme Court.

The appellant was convicted by a jury in the Pulaski County Circuit Court, First Division, of the crime of aggravated robbery under Ark. Stat. Ann. §41-2102 and of having been convicted of three prior felony offenses under Ark. Stat. Ann. §41-1001. He was tried jointly with a Co-defendant, Jerry Lee Bradden, who was also convicted and is not a party to this appeal.

Appellant contends the trial court erred in admitting into evidence a confession of the Co-defendant, Bradden, without entirely deleting inculpating references to the involvement of another person. The confession, as admitted with addictions, did not specifically name appellant. Appellant also contends that the court erred in refusing to grant appellant’s motion for mistrial because of prejudicial closing argument of the prosecuting attorney. The prosecuting attorney made the following remarks in his closing argument to the jury, references to appellant by name to be deleted from the confession so that reference to the appellant was simply to “the other man”, and the confession, as so revised, was read in evidence before the jury. After the above argument appellant moved for mistrial.

“Now, that’s the State’s case along with the statement of Jerry Braden (sic), which was that he was riding around with some other fellows in the car, that one of them knew a place where they could rob, a chicken place, that one of the men had a black .22 pistol and that he (Bradden) didn’t have a gun. ‘Me and him got out and went inside. I ordered some chicken. He went in the bathroom.’ His statement, of course, doesn’t name who was with him but from the other witnesses we know who has been testified to went in the bathroom. The witnesses testified that McCroskey is the man that went in the bathroom. ” (Emphasis added.)
At an In Camera hearing the court required all

The State, in addition to introducing the confession of the Co-defendant Bradden, after an In Camera hearing on the question as to whether the confession was voluntary, presented in evidence the testimony of the assistant manager of the restaurant allegedly robbed and two other employees of the restaurant identifying appellant and his Co-defendant Bradden as the two men involved in robbing the restaurant in Little Rock on August 12, 1978. Another employee of the restaurant present at the alleged robbery testified that the Co-defendant, Bradden, was the black man involved in the alleged robbery and testified as to the actions of a white man involved and his testimony as to the actions of the white man was corroborative of the testimony of the three witnesses who specifically identified the appellant as the white man involved in the alleged robbery. The testimony of the witnesses tended to identify the ‘other man’ named in the Bradden confession as the appellant.

Neither of the co-defendants took the stand and the only evidence offered by the appellant was the testimony of his sister and a girlfriend with whom appellant lived for a time to the effect that appellant was with them at his girlfriend’s place of abode in Levy at the time the alleged robbery was said to have occurred.

Appellant correctly states the law that the confession of one defendant is hearsay and inadmissible against his co-defendant. The Sixth and Fourteenth Amendments to the Federal Constitution guarantee to a defendant in criminal prosecutions the right to be confronted with witnesses against him and the right to cross-examine them.

It is clear that the trial judge carefully required the confession of the Co-defendant Bradden to be revised to delete any reference by name to the appellant before it was read in evidence. The question here arises over the fact that testimony of other witnesses on behalf of the State tends to identify appellant as the “other man” in the addicted confession of the co-defendant; and the prosecuting attorney referred in his closing argument to ‘the other man’, who, according to the confession, accompanied Bradden, had a gun, went in the bathroom, went behind the counter and shortly came out carrying the money and of Bradden receiving $100.00 of the money.

Appellant objected to the argument of the prosecuting attorney and moved for a mistrial. The court denied the motion and stated, “It’s argument. It’s not evidence.”

In the case of Bruton v. United States, 391 U.S. 123, 88A S. Ct. 1620 (1968), the confession of a co-defendant was received in evidence. The confession contained incriminating statements against appellant and identified the appellant by name. Although the trial judge instructed the jury that the confession of the co-defendant was not evidence against the appellant Bruton, the court held the confession added substantial weight to the Government’s case against Bruton in a form not subject to cross-examination; and that this constituted a violation of Bruton’s Sixth Amendment right to be confronted with the witnesses against him.

In the Bruton case the appellant was specifically identified by name in the confession of his co-defendant that was received in evidence. However, the identity of appellant in the present case could be determined in light of other evidence that was received. No instruction was requested or given that the jury could not consider any part of the Bradden confession in determining the guilt or innocence of appellant. However, appellant had objected to the Bradden confession being received without deleting any reference to “another person”.

The prosecuting attorney also argued:

“It’s obvious what happened in the case, especially from the defendant’s statements. The two of them planned this robbery. They went in together . . . Mr. McCrosky went to the back. He didn’t pull out the pistol . . . But we know there was a pistol and we know he represented there was one.”

Since the confession of the co-defendant was not competent evidence against the appellant, it was error for the prosecuting attorney to make an argument to the jury calculated to have the jury consider the confession of the co-defendant as evidence against the appellant, as was done in this case.

Appellant further contends that the court erred in refusing to grant its motion for mistrial, because of alleged prejudicial remarks of the prosecuting attorney incident to appellant’s failure to testify.

The prosecuting attorney made the following remarks to the jury in his closing argument,

“And what evidence do you have concerning this statement? You’ve got two officers who have sworn under oath as to the circumstances of taking the statement. There’s been no evidence submitted in any way to challenge anything other than that was a perfectly free and voluntary statement given by Mr. Braden, (sic). That’s the only testimony.”

It is true the statement was made with reference to the voluntary character of the co-defendant’s confession. However, there was no instruction for the jury to be concerned with the question as to whether the co-defendant’s statement was voluntary.

In Adams v. State 263 Ark. 536, 566 S.W. 2d 263 (1978), a case in which appellant did not take the stand, the court reversed a conviction of the appellant because the prosecuting attorney in the closing argument to the jury said,

“ ... to convict him, the defendant, you don’t have to disbelieve any part of their case, because what did the defense, how many witnesses did the defense put on for your consideration.”

The court said, “It is well settled that comment on the failure of a defendant to testify in a criminal case is violative of the self incrimination clause of the Fifth Amendment to the United States Constitution, which is applicable to the States by the Fourteenth Amendment to the Constitution.”

The statement of the prosecuting attorney in the present case, focused attention on the fact that appellant failed to take the stand and in any way challenge the statement of the co-defendant that was received in evidence. Appellant’s constitutionally protected right was there by infringed and we are unable to say that the error was harmless beyond a reasonable doubt. Chapman v. California, 388 U.S. 18, 87 S. Ct. 824.

Reversed and remanded.


text:
    Owen WOLFE v. STATE of Arkansas
    CA CR 79-26
    586 S.W. 2d 4
    Opinion delivered August 22, 1979
    and released for publication September 12, 1979

      Tommy Womack, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   Ernie E. Wright, Chief Judge.

This was an appeal to the Arkansas Supreme Court and has been assigned to the Court of Appeals for disposition pursuant to Rule 29(3) of the Arkansas Supreme Court.

In April, 1977, appellant pleaded guilty in the Craighead Circuit Court to separate charges of robbery and theft of property and burglary and theft of property. He was sentenced to two concurrent ten year terms in the Arkansas Department of Corrections on the robbery and burglary charges with five years of each of these sentences suspended during good behavior; and he was sentenced to five year terms on each of the two theft charges, with all sentences to run concurrently. He was committed to prison and later paroled.

Subsequently, he was charged in the Craighead Circuit Court with robbery of a woman’s purse. The State then filed a petition for revocation of the prior suspended sentences and requested that the court order execution of the full sentences.

Upon hearing evidence on the petition the court in December, 1978, revoked the suspension of the prior sentences and ordered that the prior five year suspended sentences should be consecutive, rather than concurrent as previously ordered.

On appeal it is contended that the evidence was insufficient to justify revocation of the suspension of sentences; and that the court erred in ordering the prior suspended sentences to run consecutively rather than concurrently.

Upon reviewing the evidence, we cannot say that the finding of the court that the appellant had violated the good behavior terms of the suspension of sentences was clearly against the preponderance of the evidence. Cogburn v. State, 264 Ark. 173, 569 S.W. 2d 658 (1978). On the issue raised as to the power of the court to change the prior judgment which ordered that all of the sentences would run concurrently, we hold that the court was without jurisdiction to change the prior judgment to require that the two five year suspended sentences should run consecutively rather than concurrently.

Unquestionably, the court had the power to revoke the previous suspension of sentences upon finding that appellant had violated the good behavior terms of the suspension; however, as the original judgment imposed sentences and provided that all of the sentences would be concurrent, the court was without authority to change the previously imposed sentences from concurrent to consecutive. The cases of Williams, Standridge and Deaton v. State, 299 Ark. 42, 313 S.W. 2d 242 (1958) and Cashion v. State, 265 Ark. 677 (1979) are controlling on this point.

The circumstances here are unlike a situation in which the court withholds the imposition of sentence. Where the imposition of sentence is withheld, and the court later revokes suspension of sentence, Ark. Stat. Ann. § 41-1208 (6) empowers the court to impose any sentence that might have been imposed originally for the offense of which the defendant was found guilty. Ark. Stat. Ann. § 41-801 (1) defines the word “suspension” within the context of the aforementioned section as meaning to “suspend imposition of sentence.”

However, in the present case the court on April 5, 1977 sentenced the appellant to ten years in the Arkansas Department of Corrections on the plea of guilty to robbery and for the same term on a plea of guilty to burglary. Five years of each ten year term was suspended during good behavior and it was ordered that the sentences in both convictions would run concurrently. The sentences were pronounced and only the execution of a portion of the sentences was suspended. Under these circumstances, Ark. Stat. Ann. § 41-1208 (6) does not empower the court to change the prior sentences that were pronounced against the appellant so as to make them run consecutively rather than concurrently. Once the concurrent sentences were imposed the court was without jurisdiction to modify the sentences in the present proceeding to make them run consecutively.

No issue is here raised as to the authority of the court in imposing the sentences in April, 1977, to suspend a portion of the sentences “during good behavior” rather than on one or more of the specific conditions authorized by Ark. Stat. Ann. §41-1203 which provides a more definite standard of conduct for suspended sentences. Nor is any issue raised as to whether the original suspension of enforcement of sentences was permissible in view of Ark. Stat. Ann. § 41-803 which became effective January 1, 1976. The latter section excludes all sentences not authorized by the Criminal Code that became effective January 1, 1976.

The orders of the court revoking the suspension of a portion of the sentence in each of the two convictions are affirmed. The portion of the orders of the court modifying the prior judgments of the court to make the sentences run consecutively, rather than concurrently, as previously ordered, are reversed and the cause is remanded for the entry of appropriate orders in keeping with this opinion.

Penix, J., not participating.


author: M. Steele Hays, Judge.

text:
    Francis Earl BROWN v. Steven E. FLEMING et ux
    CA 79-13
    586 S.W. 2d 8
    Opinion delivered August 22, 1979
    and released for publication September 12, 1979

      Willis V. Lewis, for appellant.

      Howell, Pnce, Howell, P.A., by: Merl Barns, for appellee.
   M. Steele Hays, Judge.

This case was appealed to the Arkansas Supreme Court and assigned to the Arkansas Court of Appeals pursuant to Rule 29(3).

Appellant appeals from a final order of adoption granted to appellee. The persons adopted are Michael Earl Brown and Christopher Allen Brown, minor sons of appellant and Eva Jeanette Fleming (formerly Brown). Appellant and Mrs. Fleming divorced on March 22, 1974 and on May 1, 1976, Mrs. Fleming married the appellee. In the decree of divorce, custody was awarded to Mrs. Fleming of Michael, then four years of age, and of Christopher, then ten months of age. Child support was set at $25.00 per week. On September 1, 1977, appellee filed petition for adoption of the two boys. Hearings were conducted on December 8, 1977, December 21, 1977 and on November 2,1978, a final decree of adoption was entered. The testimony established that appellant had seen his sons irregularly since the divorce and not at all since December of 1975, except for a single overnight visit in November, 1976. Appellant had paid nothing by his own account since December of 1975 (he testified that he was unemployed from May 1976 to March 1977) and had not attempted to see the children since 1975. Mrs. Fleming testified that the children loved the appellee and thought of him as their father and that he had provided the full and only support of the children since their marriage in 1976.

The lower court found that the appellant’s consent was not necessary and that it was in the best interest of the children to grant the adoption. This appeal followed:

Two points for reversal are argued: I, that the presence of the children before the court is required by Ark. Stat. 56-214 (Act 735 of 1977) and the children were not before the court; and II, that the appellant’s consent was necessary and was not lost to him by reason of non-support, as provided in Ark. Stat. 56-207. These points for reversal must fail.

As to the first point, the point lacks merit for the reason that the final decree of adoption recites “that all proper persons are before the court”, and we must assume the finding means what it says. Moreover, counsel for appellee, who attended every one of the hearings, states categorically that the children were present at the hearing on December 21, 1977. This hearing was held approximately six months before counsel for appellant entered the case. But the answer need not rest on this reasoning alone, for it is clear that appellant’s counsel made objections into the record at both the December 21, 1977 hearing (see page 50 of the record) and at the November 2, 1978 hearing (see pages 55-57 of the record) and neither objection touched on the point now argued. The rule in Pyramid Life Insurance Company of Kansas City, Kansas v. Garrison, 241 Ark. 101 (1966) 406 S.W. 2d 344, and Panich v. McLendon, 241 Ark. 576 (1966) 409 S.W. 2d 497 applies.

As to point II, section 7 of the Act (Ark. Stat. 56-207) provides that the consent to adoption is not required of a parent who, for one year has failed significantly without justifiable cause to communicate with his child or provide for the care and support of his child as required by law or judicial decree.

The fact is the appellant is caught under both provisions in the statute. He admits that he did not see or otherwise communicate with his children from December of 1975 (except for one overnight visit with them in November, 1976) or, for a period of nearly two years. We are not willing to say that the court erred in holding that this was not significant communication. Appellant cites Woodson v. Lee, 221 Ark, 517, 254 S.W. 2d 326 (1953) in support of this point. The difference in the two cases are evident. In Woodson, the Supreme Court reversed a lower court ruling that a father had abandoned his son for a period in excess of six months. The facts in that case reflected that the father never stopped trying to see and communicate with his son but was denied the right to do so by the mother, his former wife. He eventually obtained counsel in an effort to enforce his right of visitation. In the present case, after 1975 appellant never attempted, so far as we can determine from the record, to see his children and his explanation is unconvincing.

On the matter of financial support, the records of the Master show that appellant began missing child support payments within a few months following the divorce. He paid a total of nine or ten payments in 1975 (as opposed to the requisite 52) and, by his own admission, paid nothing after December, 1975. His explanation is that he was unemployed from May 1976 until March, 1977. Even so, this interruption in earnings doesn’t account for an extended period both before and after his period of unemployment. His explanation for not resuming support after he returned to work in March of 1977 was he needed to catch up on his bills. The obvious fact is that both from the standpoint of communication and financial support the appellant has demonstrated a disinterest in these children for a period well in excess of the period prescribed in the statute. The legislature has seen fit to fix the period by which the right of a parent to prevent, absolutely, the adoption of children by reason of significant failure to either support or cummunicate with children. It fixed that period of time at one year and the appellant comes clearly within that provision. That being so, the Probate court was justified in finding that his consent was not required and by so holding, the court deprived appellant of nothing that he had not voluntarily surrendered long before. Affirmed.

Howard J., dissents.

George Howard, Jr., Judge, dissenting. Ark. Stat. Ann. § 56-207, the revised Uniform Adoption Act, in relevant part, provides:

(a) Consent to adoption is not required of:

“(2) a parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree ...” (Emphasis added)

The petitioners, the stepfather and natural mother of the minors, claimed, and the trial court accepted the contention, that appellant, the natural father, had “failed to provide for the care and support of the children as required by the divorce decree ... for more than two years and, thus, his consent is not required ...” But a careful review of the record clearly shows that this claim was not established by a preponderance of the evidence and a reversal of the trial court is required.

The mother of the minor children testified:

“Q, When was the last child support payment you received?
A. September, 1975.
Q. Immediately following your divorce did he visit the children regularly?
A. No.
Q. Has he ever visited the children regularly?
A. No, he hasn’t.
Q. When was the last time he saw the children?
A. December of 75.”

On cross examination, the mother testified:

“Q. So you don’t know whether your former husband saw the children when his parents had them or not, do you?
A. I know a couple of times he did.”

The natural father testified, in relevant part, as follows:

“Q,. . . . Have you given her any money since that time (September 23, 1975)?
A. Yes, sir, I have. Not through the Court but personally-
Q. Personally? Did you give her any money in Christmas of 75?
A. Yes, sir, on Christmas Eve. I had sent her a check the week before, and then Christmas Eve when I stopped by her apartment on Baseline Road to pick up the kids I gave her $240.00 in cash.
Q. What Christmas was that? 1975?
A. Yes.
Q. All right. Have you given them any money since December of 75?
A. No, sir.
Q. Why haven’t you given them any money since then?
A. Because up until May of this year I was unemployed from March of 76 until May of this year.
Q. Until May of this year?
A. Yes, sir.
Q. And were you able to give them any money?
A. No, sir, I wasn’t.
Q. Have you tried to communicate with the children during this past — since December of 75?
A. The last time I talked with their mother we got into an argument and since she has remarried. I don’t want to start any problem between her and her new husband.
Q. All right. Now, when did she remarry?
A. May of 76.
Q. All right. Did you communicate and visit with the children prior to the time that she remarried?
A. Yes, I did. In fact, the two summers after we were divorced, the first summer I had the oldest boy for a week in Memphis, and the second summer I had both of the boys for a week, when I was still living in Memphis.
Q. All right. Have you talked with them on the phone since she remarried?
A. I haven’t talked to them on the phone. I saw them the first weekend in November of 76.
Q. The first weekend in November of 76? And where was that?
A. The night my father picked the boys up from her, that afternoon, and they spent Friday night with me over at the trailer, and then they went down to my grandparents the next morning.
Q. And that was in November of 76?
A. Yes, sir.
Q. And how old was the oldest one at this time?
A. The oldest one at that time was seven.
Q. Was seven? And you spent the night at your trailer? A. Yes, sir.
Q. Have you tried to talk or communicate with your children by phone?
A. Well, sir, since my ex-wife has remarried she seems to be happy and I don’t want to start any problems or cause any problems between her and Mr. Fleming.”

On cross examination, the natural father testified:

“A. My ex-wife knew that I was unemployed.”

The paternal grandmother of the minor children testified:

“Q. Have you bought the children presents?
A. Well, their Christmas presents are at my house now.
Q. From last year?
A. Yes, sir.
Q. Why are they at your house now?
A. From last Christmas? Well, I don’t know. Just — I called Mrs. Fleming and asked her if she would come out and pick them up but she just didn’t pick them up.
Q. Now, prior to the time that she remarried did you and your husband keep the kids on weekends?
A. Yes, sir.
Q. And have you had the children on any weekends since she remarried?
A. Yes. We had them after she got married until, I believe that it was the first weekend of November, of 76.
Q, And then that is the last time you have had them?
A. Yes.
Q, What happened that you ceased having the children on the weekend?
A. Well, when I would call, well, she just said they were going some place and she didn’t think it was right for ’em to come out.
Q. But you have been denied the right to have them on weekends, have you not? Since November, 76, last year?
A. Yes, sir.”

The paternal grandfather testified:

“Q. Have you given the children any presents, and so forth?
A. We bought them Christmas presents but they are still at home.
Q. Have you been denied the right to have the children out to your place?
A. I feel like I have, yes, sir.
Q. And up until then you used to keep them quite frequently, did you not?
A. Right.
Q. And what happened that caused that to cease?
A. Really I don’t know.”

The testimony of the natural father and paternal grandparents has not been rebutted. This testimony stands uncon-tradicted.

It is plain that the natural father’s consent to the adoption is not required if he had failed, for at least one year, “significantly without justifiable cause” to communicate with or to provide for the care of his children. An objective analysis of this case leads to the inescapable conclusion that it cannot be said that the natural father has forfeited his right to object to the adoption of his children.

Finally, Ark. Stat. Ann. § 56-214 (Repl. 1977), in material part, provides:

“The petitioner and the individual to be adopted shall appear at the hearing on the petition, unless the presence of either is excused by the court for good cause shown. ”

The petitioner-stepfather testified at the hearing on his adoption petition resulted in the Interlocutory Decree granting the adoption:

“Q. Where are the children this morning?
A. ... in school . . .
Q, Why didn’t you bring them?
A. I wasn’t instructed to.”

The presence of the children was mandatory under the statute. The failure to have the children present for the proceeding amounts to a jurisdictional defect rendering the interlocutory decree a nullity. The majority seeks to avoid this defect by asserting that the final decree recites: “1. That all the proper parties are before the Court.”

I submit that this observation in the final decree, which is not supported by anything in the record, does not cure the obvious fatal defect because the final decree was entered pro forma to simply render the interlocutory decree final, which was entered December 28, 1977, while the final decree was entered November 18, 1978. In other words, the final decree was not rendered as a consequence of a hearing separate and apart from the original hearing resulting in the interlocutory decree. The interlocutory decree makes no reference as to the presence of the children whatsoever.

It seems clear that appellant-natural father’s entitlement to due process and equal protection under the law dictates a reversal. It must be remembered that in a case, as here, involving former spouses, especially where it is obvious that emotions are at a high pitch, courts are duty bound to scrutinize claims of waiver in order to be sure there is no manipulation of the purported facts on the part of either party to the proceeding.

Accordingly, I dissent.


text:
    Virgil Wayne ROBERTS v. CITY OF CONWAY
    CA CR 79-28
    586 S.W. 2d 13
    Opinion delivered August 22, 1979
    and released for publication September 12, 1979

      Guy H. Jones, Jr., Guy H. Jones, Phil Stratton and Casey Jones, for appellant.

      Jesse W. Thompson, City Atty., for appellee.
   David Newbern, Judge.

Appellee Roberts was convicted in Conway Municipal Court of driving while under the influence of intoxicants, first and second offenses, and driving a vehicle without a license. The municipal court trial took place March 28, 1977. The conviction was appealed, and the appeal came on for trial (de novo) in the Circuit Court on February 8, 1979._

At the Circuit Court hearing, a motion to dismiss was presented. It was based on the requirement of A.R. Crim. P. 28.1 and 28.2 that a defendant must be brought to trial before the end of the third full term of court from the time the charge is filed. Excluded from the limitation period is “the period of delay resulting from a continuance granted at the request of the defendant or his counsel.” A.R. Crim. P. 28.3 (c).

At the hearing in the Circuit Court, the defense counsel moved to dismiss. He and the City Attorney stipulated that three terms of court had passed since the December 1976 term. The defense counsel referred to a circuit court docket notation that on July 20,1978, the case was “continued at the request of the defendant.” The defense counsel then commenced to “testify” that he had been counsel for the defendant since before the munciipal court trial, and that at no time had the defendant ever moved for a continuance. The City Attorney insisted the Court accept the docket notation made by the former circuit judge.

The conviction was affirmed, with the Court noting that the defendant had failed to appear, preferring to stand on his motion to dismiss.

Assuming without deciding that Rule 28.1, et seq., apply to cases appealed to circuit courts as well as to cases in which charges are filed in circuit courts, we affirm the Court’s action. The only evidence before the Court consisted of the docket notation. Counsel for the defendant was not sworn, no affidavits were filed, and no witnesses were called. The Court had no choice but to rely on the docket notation.

This case is easily distinguishable from Holland v. State, 252 Ark. 730, 480 S.W. 2d 579 (1972), in which there was a joint stipulation that the defendant had not sought a continuance. See also, Baugh v. City of Pine Bluff, 257 Ark. 768, 520 S.W. 2d 275 (1975), where the Arkansas Supreme Court makes it clear that in a case such as this, the defendant has an affirmative obligation to offer proof that any delay was not at the instance of the defendant.

Affirmed.

      No mention is made on this appeal that the special municipal judge who initially convicted the defendant and the circuit judge to whose court the case was appealed were the same person.


text:
    Pierson E. SKELTON and Billie A. SKELTON, Husband and Wife v. FARM SERVICE CO-OPERATIVE, INC.
    CA 79-82
    587 S.W. 2d 76
    Opinion delivered August 29, 1979
    and released for publication October 4, 1979

      Pearson & Woodruff, by: Ronald G. Woodruff and Priscilla K. Pope, for appellants.

      James F. Dickson, for appellee.
   Ernie E. Wright, Chief Judge.

This case was appealed to the Arkansas Supreme Court and was transferred to the Court of Appeals pursuant to Rule 29(3) of the Arkansas Supreme Court.

The appeal is from a judgment on a directed verdict from the Washington County Circuit Court for $61,239.96 in favor of appellee upon a suit on account for feed and other merchandise purchased by the Appellant, Pierson E. Skelton, from the Appellee, Farm Service Co-operative, Inc.

The complaint included a count seeking to recover judgment on the open account and another count seeking judgment on a promissory note for $39,839.37, dated February 20, 1975, executed by Skelton and wife to the appellee. Evidence was presented by appellee tending to show the note was accepted by appellee as security for the open account.

At trial, the appellee abandoned the portion of the suit seeking judgment on the note, did not produce or surrender the note and presented evidence seeking judgment only upon the account, including pre-judgment interest at the rate of 10%.

Appellee’s evidence made a prima facie case upon which the court could properly have found that the Appellant Skelton purchased feed from the appellee and that the account for same had not been paid. There was no competent evidence the Appellant, Mrs. Skelton, participated in purchasing the feed.

At the close of the appellee’s evidence appellants moved for a directed verdict, contending the appellee had not met the burden of establishing the debt on the open account and had failed to introduce in evidence the note given in connection with the account or explain the failure to produce the note.

The court overruled appellants’ motion for a directed verdict and rendered judgment for appellee for $61,239.96 against both Mr. and Mrs. Skelton. The judgment appears to include several thousands of dollars of pre-judgment interest, and possibly interest upon prior finance charges, but there was no testimony as to the rate of interest or the principal amounts and periods of time used in arriving at the amount of interest.

Appellants seek reversal on two points: First, the court erred in failing to grant appellants’ motion for directed verdict at the close of appellee’s case for failure to proffer, produce or surrender the promissory note executed as security for the account, and second, that there was no substantial evidence to support the verdict.

On the second point there is clearly no evidence in the record to warrant a judgment for appellee against Mrs. Skelton. It is true, she apparently signed a promissory note along with her husband to secure the open account her husband had incurred, but the note was not produced, offered in evidence or surrendered, and counsel for appellee announced at trial that judgment was not sought on the note.

On the first point for reversal, the law is well settled that a note given for an antecedent account is not payment of the debt, unless it is agreed to be taken as such. There was no evidence here the note was accepted in payment of the debt. Under such circumstances, if the debt is not paid when the note becomes due, suit can be maintained on either the note or the account. See, Ark. Stat. Sec. 85-3-802 (1) (b) and Boone v. General Shoe Corp., 219 Ark. 340, 242 S.W. 2d 138 (1951). However, it was necessary for the appellee to produce and surrender the note in court to be entitled to a judgment on the open account. In the Boone case the court held it was necessary to surrender the note and quoted with approval from Am. Jur., Vól. I, p. 269, Sec. 8, as follows:

But, if one who accepted from another in liquidation of an open account, a negotiable promissory note, he cannot recover in a suit upon the original cause of action unless, upon trial, he produces the note or satisfactorily accounts for its absence.

If the law were otherwise, the note could be transferred to a third party, thereby exposing the debtor to the expense of defending a law suit and possible double liability.

This problem was recognized in Industrial Bank of Commerce v. Harpe, 77 N.Y.S. 2d 605, 191 Misc. 658 (1948) in which the court said:

... a recovery cannot be had on the original obligation without a surrender of the negotiable paper, or a satisfactory explanation of its non-production, or unless it appears that it cannot be enforced by a third party. The reason for this rule is not that the debt has been paid, but that a suit might afterwards be brought by the indorsee and so the party might be compelled to pay the debt a second time.

The Uniform Commercial Code, adopted in 1961, does not change the rule announced in the Boone case. Rather Sec. 85-3-307 (2) indicates the wisdom of the rule in that it provides that when signatures on a negotiable instrument are established, production of the instrument entitles a holder to recover unless the defendant establishes a defense.

Also, the judgment here included a large amount for prejudgment interest without any showing as to the rate of interest applied and of the period of times and amounts to which the interest was applied.

The appellee would be entitled to no more than 6% prejudgment interest on the account from the date of the filing of the complaint to the date of judgment. Advance Construction Co., Inc., et al v. Dunn, 263 Ark. 232, 563 S.W. 2d 888 (1978), Johnson v. Hull, 57 Ark. 550, 22 S.W. 176 (1893).

The case is reversed and dismissed as to the Appellant, Mrs. Skelton, and reversed and remanded as to Mr. Skelton for further proceedings consistent with this opinion.