Tumbs v. State, CR

• Decision Date: 27 October 1986
• Docket Number: No. CR,CR
• Citation: 290 Ark. 214,718 S.W.2d 105
• Parties: Sammy TUMBS, Appellant, v. STATE of Arkansas, Appellee. 86-124.
• Court: Arkansas Supreme Court

Page 105

718 S.W.2d 105

290 Ark. 214

Sammy TUMBS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 86-124.

Supreme Court of Arkansas.

Oct. 27, 1986.

Michael Everett, Lepanto, for appellant.

Steve Clark, Atty. Gen. by Robert A. Ginnaven, III, Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

Appellant was found guilty of violating the Omnibus DWI Act of 1983, and his sentence was enhanced because of three prior convictions. On appeal he contends the judgment should be reversed because: (1) There was no substantial evidence to prove that he was driving, and (2) two of his prior convictions were entered by the Municipal Court of Tyronza, a court which was defectively created. The case was certified to this Court by the Court of Appeals under Rule 29(1)(c). We affirm the conviction.

Appellant admits that he was intoxicated and was in one of two cars involved in an accident, but contends there was no substantial evidence to prove that he was driving. The argument is without merit. An eyewitness, Gary Norcross, testified that immediately after the accident, the appellant was in the driver's seat under the steering wheel, and his wife was on the passenger's side of the front seat leaning against the door. Appellant's wife first told the investigating officer that she was driving, but then changed her statement and said she was not driving. She added that the appellant asked her to take the blame for him. The appellant took the witness stand and, in an inherently improbable account, testified that his wife was driving and he was the passenger immediately before the collision, but the impact was so great that it threw him across the seat to the driver's side and, at the same time, knocked his wife across the seat into the passenger's side. He had little to say about the arm rest between the seats.

The jury must be convinced of the accused's guilt beyond a reasonable doubt, but we, not having the advantage of seeing and hearing the witnesses, are bound to uphold the verdict if it is supported by substantial evidence. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). Here, there was evidence that immediately after the impact, appellant was in the driver's seat behind the steering wheel. That evidence alone constitutes substantial evidence to support the finding that appellant was driving seconds before the time of impact. Circumstantial evidence alone may be sufficient to support a conviction.

Appellant's second point of appeal is more substantial. In the punishment phase of the bifurcated trial, the trial court allowed into evidence two prior judgments of conviction from the Municipal Court of Tyronza. The Tyronza court, as well as the Marked Tree Municipal Court, was created pursuant to Act 616 of 1975. After appellant's two convictions in the Tyronza Court, but before the case at bar was tried, we declared that Act 616 of 1975 was unconstitutional because it was a special and local act in violation of the Fourteenth Amendment to the Constitution. Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984).

Appellant contends that the judgments of the Tyronza Court are void judgments which can be collaterally and retroactively attacked, and that the trial court erred in admitting them into evidence.

The early leading case on the subject was Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178 (1886). In that case the Supreme Court of the United States held that the members of a county board of commissioners were not de facto officers so as to give validity to county bonds issued by them before the statute purporting to create the board was declared unconstitutional. The Court utterly repudiated the contention that an unconstitutional legislative act may create an office which will make its incumbent a de facto officer. The Court wrote: "An unconstitutional act ... is, in legal contemplation, as inoperative as though it had never been passed." Id. at 442, 6 S.Ct. at 1125.

In 1903 this Court, without citing Norton, adopted that same strict view in the case of Caldwell v. Barrett, 71 Ark. 310, 74 S.W. 748 (1903). There, the regularly elected circuit judge was holding court in Bradley County and was unable to attend an adjourned term of court in Chicot County, so the attorneys present in Chicot County elected a special judge. In ruling that a special judge could not sit in a district while the regular judge was also acting, we wrote:

In order to be a de facto judge there must be a regularly constituted office and a vacancy therein before one appointed or elected to fill such office can be denominated a de facto officer.... When there is an office, and no de jure officer to exercise its functions, then one appointed under the form of law would be a de facto officer at least, and his acts are not to be called in question collaterally. The question is quite different where there is no de jure office, ... for the foundation of the proceeding must be ... a lawfully created court, or there is a total want of jurisdiction in the court itself to hear and determine the case, and this jurisdictional infirmity will annul any proceedings therein on mere suggestion to the proper court. It would be beyond all precedent to term the judge presiding in a court which is not a court at all a de facto judge.

In 1907 New Jersey rejected the Norton strict view that an unconstitutional law creating an office is void ab initio. Lang v. Bayonne, 74 N.J.L. 455, 68 A. 90 (1907). The New Jersey court wrote that the vice of the Norton doctrine was:

[I]t fails to recognize the right of the citizen, which is to accept the law as it is written, and not to be required to determine its validity. The latter is no more the function of the citizen than is the making of the law. ... To require the citizen to determine for himself, at his peril, to what extent, if at all, the Legislature has overstepped the boundaries defined by the Constitution in passing this mass of statutes, would be to place upon him an intolerable burden, one which it would be absolutely impossible for him to bear--a duty infinitely beyond his ability to perform.

This Court later refused to apply the Norton strict view in Eureka Fire Hose Co. v. Furry, 126 Ark. 231, 190 S.W. 427 (1916), and Board of Improvement v. Carman, 138 Ark. 339, 211 S.W. 170 (1919). We refused to apply the strict view in Eureka under the facts of the particular case and refused to apply it in Board of Improvement because of public policy.

In January 1948, the subject was before us again in two consolidated domestic relations cases. In Howell v. Howell and Stevens v. Stevens, 213 Ark. 298, 208 S.W.2d 22 (1948), we returned solidly to the strict view. Those cases held the statute establishing a second office of Chancellor and Probate Judge in Pulaski County was unconstitutional and the void statute allowed collateral attacks upon all judgments entered by the second division chancellor. The dissenting opinions pointed out the devastating effect on hundreds of litigants who thought their land disputes were adjudicated or thought they...