Hill v. State, No. 5758

CourtSupreme Court of Arkansas
Writing for the CourtFOGLEMAN; HARRIS; HARRIS
Citation253 Ark. 512,487 S.W.2d 624
Decision Date04 December 1972
Docket NumberNo. 5758
PartiesThomas D. HILL, Appellant, v. STATE of Arkansas, Appellee.

Page 624

487 S.W.2d 624
253 Ark. 512
Thomas D. HILL, Appellant,
v.
STATE of Arkansas, Appellee.
No. 5758.
Supreme Court of Arkansas.
Dec. 4, 1972.

[253 Ark. 515]

Page 627

Mobley & Smith, Russellville, and Earl L. Yeakel, III, Austin, Tex., for appellant.

Ray Thornton, Atty. Gen., by James A. Neal, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Thomas D. Hill was found guilty of disposing of property subject to a lien and sentenced to imprisonment for one year. He asserts the following points for reversal:

I.

1. The verdict herein is contrary to both the law and the evidence.

2. There is no evidence to support a conviction of the defendant on a charge of disposing of property subject to a lien.

Page 628

3. The criminal statute under which this defendant was prosecuted does not apply to the facts in this situation.

4. The trial court erred in that defendant's motions for dismissal of the charges and for a directed verdict should have been granted as a matter of law and also based upon the evidence.

[253 Ark. 516] II.

The trial court erred in denying defendant's motion for a dismissal of the charges as this was clearly a prosecution to aid in the collection of a debt and as such violated the defendant's constitutional rights.

III.

The Howard County Circuit Court was without venue or jurisdiction over the subject matter of this cause of action and should have dismissed said cause of action upon the motion of defendant.

IV.

It was error for the court to allow the prosecutor to introduce into evidence the total amount of the debt owed to the Nashville Production Credit Association by defendant as this cause of action included only $19,000.00, particularly in view of the pretrial order denying this information to defendant's counsel.

V.

The court erred in allowing prejudicial statements to be made by the prosecutor in his opening and closing arguments.

VI.

The court erred in allowing the prosecuting attorney to attempt to impeach their own witness as no evidence was ever introduced of prior contradictory statements.

VII.

The court erred by refusing to give defendant's requested instructions No. 1, 2, and 3.

[253 Ark. 517] Appellant Hill was charged with having disposed of six bulls, 136 cows and 65 calves by selling the same to Ted Powell for the sum of.$19,000 on December 9, 1969, while the cattle were subject to a lien in favor of Nashville Production Credit Association by reason of a financing statement and security agreement executed by Hill on November 10, 1969, with the intent to defeat the Production Credit Association in the collection of the debt secured by these instruments.

The applicable statute is Ark.Stat.Ann. § 41--1928 (Repl.1964), which reads:

It shall be unlawful for any person to sell, barter, exchange or otherwise dispose of, or to remove beyond the limits of this State or of any county in which a landlord's or laborer's lien exists, or in which a lien has been created by virtue of a mortgage or deed of trust, or to which title has been retained by the vendor, any property of any kind, character or description, upon which a lien of the kind enumerated above exists or to which title still remains in the vendor: provided, such sale, barter, exchange, removal or disposal of such property be made with the intent to defeat the holder of such lien or title in the collection of the debt secured by such mortgage, laborer's or landlord's lien or retention of title.

Since we find that there was reversible error in the denial of appellant's requested instruction No. 2, we first treat appellant's Point VII. The court gave its instructions 9 and 11 relative to the effect of the consent of Nashville Production Credit Association to the sale. By instruction No. 9, the jury was told that if it found other

Page 629

necessary elements of the offense and that the cattle were sold and disposed of by the said Thomas D. Hill without the consent of Nashville Production Credit Association, it would find Hill guilty. Instruction No. 11 read:

Members of the jury, you are instructed that if you find from the evidence presented in the trial of this [253 Ark. 518] cause that the Nashville Production Credit Association, by or through its Board of Directors, one or more, its Manager, or any one of its employees consented to the sale of the cattle, you should acquit the defendant, Thomas Hill.

The court refused defendant's requested instruction No. 2, which reads:

You are instructed that consent may be expressed or implied from the conduct of the parties.

There is no question that the consent of the injured party is a defense to the charge, because there is no mortgage lien after a sale with the lienholder's consent. Lawhorn v. State, 108 Ark. 474, 158 S.W. 113; Osborne v. State, 109 Ark. 440, 160 S.W. 215; Murry v. State, 150 Ark. 461, 234 S.W. 485. See also, Mitchell v. Mason, 184 Ark. 1000, 44 S.W.2d 672. The state argues that, in order to constitute a defense, the consent must be actual, not implied, and that the court's instruction No. 11 fairly and correctly states the law. We do not agree with the first argument and find instruction No. 11 incomplete in that respect. In arriving at this conclusion, we are influenced by the rule that a criminal statute must be strictly construed in favor of one accused. Burke v. State, 235 Ark. 882, 362 S.W.2d 695, cert. denied, 373 U.S. 922, 83 S.Ct. 1523, 10 L.Ed.2d 421. Nothing may be left to intendment and all doubts must be resolved in favor of the defendant in construing such statutes. Stuart v. State, 222 Ark. 102, 257 S.W.2d 372. See also, Ladwig v. Arlington Hotel Company, 225 Ark. 972, 286 S.W.2d 853. No case may be brought within the purview of a criminal statute by construction unless it is completely within the words of the statute. Lewis v. State, 220 Ark. 259, 247 S.W.2d 195; Giles v. State, 190 Ark. 218, 78 S.W.2d 70. This rule is applied in determining the meaning of the word 'consent' in criminal statutes. Baker v. State, 147 Tenn. 421, 248 S.W. 548 (1923).

In its broadest sense 'consent' may be either express or implied. State v. Neterer, 33 Wash. 535, 74 P. 668 [253 Ark. 519] (1903); Bouvier's Law Dictionary, Unabridged, Rawle's Third Revision. It may be based upon an express agreement or it may also be implied from actions, a course of conduct, silent acquiescence or even inaction. In re Estate of Seeger, 208 Kan. 151, 490 P.2d 407 (1971); Vick v. Zumwalt, 130 Colo. 148, 273 P.2d 1010 (1954); State v. Stanfield, 1 S.W.2d 834 (Mo.1927).

Implied consent has been defined as that manifested by signs, actions or facts, or by inaction or silence, which raise a presumption that consent has been given. 15A C.J.S. Consent, p. 576; Black's Law Dictionary, Fourth Edition; Bouvier's Law Dictionary, Unabridged, Rawle's Third Revision; In re Estate of Seeger, supra; Bartle v. Bartle, 132 Wis. 392, 112 N.W. 471 (1907); State v. Stanfield, supra. Implied consent may be inferred from a course of conduct and the relationship between the parties. Standard Accident Insurance Co. v. Gore, 99 N.H. 277, 109 A.2d 566 (1954).

Although we have not specifically stated the foregoing principles as to implied consent, we have given them effect without stating them. See, e.g., Kaplan v. Scherer, 205 Ark. 554, 169 S.W.2d 660. These principles have been given particular application in considering jury instructions in rape cases where consent of the female constitutes a defense. Threet v. State, 110 Ark. 152, 161 S.W. 139; Jackson v. State, 92 Ark. 71, 122 S.W. 101; Mills v. United States, 164 U.S. 644, 17 S.Ct. 210, 41 L.Ed. 584 (1897) (writ of error to Circuit Court for Western District of Arkansas).

Page 630

Even though the word 'consent' does not appear in the statute, we must give it its broadest possible meaning in considering the criminal charge against defendant, because that is the meaning most favorable to the defendant in determining whether there was an intent, in the sense of the statute defining the offense, to defeat the holder of the lien in the collection of the debt secured by the instruments executed, or whether a lien was actually defeated by unauthorized acts of the defendant. We need not set out the testimony on which a finding of [253 Ark. 520] implied consent might have been based. It is sufficient to say that evidence pertaining to the relationship between the appellant, the managing officers of the PCA and the purchaser, the knowledge and actions of these officers and the long period of inaction on the part of the PCA afforded substantial evidence to present a question of fact on this issue, as well as on the issue of express consent.

We are unable to say, however, that the jury was adequately advised of the issue of implied consent. In common usage, the word 'consent' has several different definitions and conveys varying connotations, ranging from deliberate agreement to acquiescence. See Webster's New International Dictionary, Second and Third Editions; Random House Dictionary of the English Language (College Edition); Black's Law Dictionary, Fourth Edition. The strict definition of the word 'consent' without any accompanying adjective seems to suggest an actual agreement. As used in the instruction given by the court, it may well have conveyed to some the thought that consent might be implied from the conduct of the parties and to others the idea that the consent of the secured party must have been in express terms. It would be sheer speculation for us to say that the jury's verdict was not based on the thought that express consent was required.

We recognize that the trial court is not required to charge the law upon a question in every possible manner in which a correct statement of it may be prepared by counsel, but the law must be so declared that the jury may not be in doubt as to the law of a particular question as applied to the facts of the case. DeShazo v. State, 120 Ark. 494, 179 S.W. 1012. The instructions must...

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36 practice notes
  • Perry v. State, No. CR
    • United States
    • Supreme Court of Arkansas
    • October 29, 1973
    ...of manifest gross abuse. Stanley v. State, 248 Ark. 787, 454 S.W.2d 72; McGill v. State, 253 Ark. 1045, 490 S.W.2d 449; Hill v. State, 253 Ark. 512, 487 S.W.2d 623; Blanton v. State, 249 Ark. 181, 458 S.W.2d 373. We find no abuse of that discretion The judgment is affirmed. ...
  • Flurry v. State, No. CA
    • United States
    • Court of Appeals of Arkansas
    • June 4, 1986
    ...called. As we are reversing and remanding and this issue will not likely arise upon retrial, we do not address the point. Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972); Norris v. State, 259 Ark. 755, 536 S.W.2d 298 Reversed and remanded. MAYFIELD, J., concurs. COOPER and CORBIN, JJ., d......
  • FDIC v. Deloitte & Touche, No. LR-C-90-520.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • October 1, 1992
    ...the principal." Little Red River Levee District No. 2 v. Garrett, 154 Ark. 76, 82, 242 S.W. 555 (1922);10 see also, e.g., Hill v. State, 253 Ark. 512, 521-22, 487 S.W.2d 624, 631 (1972) (citing Arkansas cases articulating general rule of imputation). This universal rule, however, also has a......
  • Watkins v. State, No. CR–12–624.
    • United States
    • Supreme Court of Arkansas
    • June 19, 2014
    ...construed. Cloird v. State, 352 Ark. 190, 99 S.W.3d 419 (2003); State v. Osborn, 345 Ark. 196, 45 S.W.3d 373 (2001) (citing Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972)). Our cases have consistently recognized that when a crime begins in one county and proceeds to culmination in anoth......
  • Request a trial to view additional results
36 cases
  • Perry v. State, No. CR
    • United States
    • Supreme Court of Arkansas
    • October 29, 1973
    ...of manifest gross abuse. Stanley v. State, 248 Ark. 787, 454 S.W.2d 72; McGill v. State, 253 Ark. 1045, 490 S.W.2d 449; Hill v. State, 253 Ark. 512, 487 S.W.2d 623; Blanton v. State, 249 Ark. 181, 458 S.W.2d 373. We find no abuse of that discretion The judgment is affirmed. ...
  • Flurry v. State, No. CA
    • United States
    • Court of Appeals of Arkansas
    • June 4, 1986
    ...called. As we are reversing and remanding and this issue will not likely arise upon retrial, we do not address the point. Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972); Norris v. State, 259 Ark. 755, 536 S.W.2d 298 Reversed and remanded. MAYFIELD, J., concurs. COOPER and CORBIN, JJ., d......
  • FDIC v. Deloitte & Touche, No. LR-C-90-520.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • October 1, 1992
    ...the principal." Little Red River Levee District No. 2 v. Garrett, 154 Ark. 76, 82, 242 S.W. 555 (1922);10 see also, e.g., Hill v. State, 253 Ark. 512, 521-22, 487 S.W.2d 624, 631 (1972) (citing Arkansas cases articulating general rule of imputation). This universal rule, however, also has a......
  • Watkins v. State, No. CR–12–624.
    • United States
    • Supreme Court of Arkansas
    • June 19, 2014
    ...construed. Cloird v. State, 352 Ark. 190, 99 S.W.3d 419 (2003); State v. Osborn, 345 Ark. 196, 45 S.W.3d 373 (2001) (citing Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972)). Our cases have consistently recognized that when a crime begins in one county and proceeds to culmination in anoth......
  • Request a trial to view additional results

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