{ "id": 1604067, "name": "State of Arkansas v. W. L. Lawrence", "name_abbreviation": "State v. Lawrence", "decision_date": "1969-04-14", "docket_number": "5-5394", "first_page": "644", "last_page": "653", "citations": [ { "type": "official", "cite": "246 Ark. 644" }, { "type": "parallel", "cite": "439 S.W.2d 819" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "78 Idaho 234", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 4493367 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/idaho/78/0234-01" ] }, { "cite": "231 Ark. 466", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1697109 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/ark/231/0466-01" ] }, { "cite": "243 Ark. 147", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718305 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/243/0147-01" ] }, { "cite": "222 Ark. 432", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1653066 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/222/0432-01" ] }, { "cite": "104 S.W. 2d 451", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "193 Ark. 1092", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411063 ], "opinion_index": 0, "case_paths": [ "/ark/193/1092-01" ] }, { "cite": "36 Ark. 456", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872447 ], "opinion_index": 0, "case_paths": [ "/ark/36/0456-01" ] }, { "cite": "191 S.W. 408", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "127 Ark. 22", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1550286 ], "opinion_index": 0, "case_paths": [ "/ark/127/0022-01" ] }, { "cite": "1 S.W. 149", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "47 Ark. 230", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888752 ], "opinion_index": 0, "case_paths": [ "/ark/47/0230-01" ] }, { "cite": "213 Ark. 903", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1467086 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/ark/213/0903-01" ] }, { "cite": "1 Ark. 171", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728482 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/1/0171-01" ] }, { "cite": "170 S.W. 562", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "114 Ark. 526", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1536322 ], "opinion_index": 0, "case_paths": [ "/ark/114/0526-01" ] } ], "analysis": { "cardinality": 733, "char_count": 14989, "ocr_confidence": 0.431, "pagerank": { "raw": 3.295882636508028e-07, "percentile": 0.8715942512478527 }, "sha256": "42f59d0b5f4b3f89888d437c9c2aa186a3283f2a5c86a1ca6c54221c23ccc68f", "simhash": "1:1f9efa2e747dd950", "word_count": 2645 }, "last_updated": "2023-07-14T22:44:17.719304+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Brown, J., not participating.", "Byrd and Holt, JJ., dissent.", "Holt, J., joins in this dissent." ], "parties": [ "State of Arkansas v. W. L. Lawrence" ], "opinions": [ { "text": "John A. Fooleman, Justice.\nAppellee was convicted in Municipal (hurt of Texarkana, Arkansas, of the offense of selling beer to a minor and upon a plea of nolo contendere lie was fined one hundred fifty dollars and costs. Tie appealed this conviction to tlie Circuit Court of Miller County. An additional count of selling beer to a minor was filed against him by information, in the Circuit Court of Miller County. These cases were consolidated fur trial and appellee entered pleas of not guilty. (Subsequently he withdrew the not guilty pleas and entered pleas of nolo contendere. The court found appellee guilty of both charges of selling beer to a minor but refused to assess any fine or imprisonment against him. The court also refused to suspend a beer license held by appellee but which was not involved in the circumstances which resulted in Iris convictions. The court\u2019s order in each case was:\n\u201cIf is therefore by the Court considered, ordered and adjudged that said defendant is guilty as charged and in view of the financial loss of Defendant\u2019s sale of liquor stores involved in this cause no fine, penalty or punishment is assessed by the Court in this cause.\u201d\nThis appeal by the state was prosecuted by authority of Ark. Stat. Ann. \u00a7 43-2733 (Repl. 1964) which provides the procedure for appeal by the state from a judgment involving a misdemeanor.\nThe appellant argues that the trial court erred in refusing- to fine and sentence appellee and in refusing to revoke his permit to sell beer and intoxicating liquors after a finding of guilty on two charges of selling beer to a minor. The pertinent portions of the statutes in-\u2019 volved are as follows:\nArk. Stat. Ann. \u00a7 48-525 (Repl. 1964) \u2014 \u201cIt shall be unlawful for a licensee, or for any agent, servant or employee of a licensee... (c) to sell, barter, furnish or giv.e away to any minor under the age of twenty-one (21) years any wine or beer ... Any violation of the provisions of this section shall constitute a misdemeanor and shall be punished by a fine of not more than five hundred ($500.00) dollars and not moro than one (1) year in jail...\u201d\nArk. Stat. Ann. \u00a7 48-525 (Repl. 1964) \u2014 \u201cAny person convicted of the violation of any provision of this Act [\u00a7\u00a7 48-501 \u2014 48-527] which violation is by this Act, defined as a misdemeanor and for which no specific punishment is in this Act provided, shall upon conviction thereof be punished as otherwise provided by law. And if any person so convicted shall be the holder of any permit issued by the Commissioner of Revenues [Department of Alcoholic Beverage Control] under authority of this Act, such permit shall from and after date of such conviction be void and the holder thereof shall not thereafter for a period of one (1) year after the date of such conviction be entitled to any permit for any purpose authorized in this Act.\u201d\nAppellant argues that upon a conviction for violation of \u00a7 48-524 the trial court is required, by virtue of \u00a7 48-525, to revoke any permit issued by the Department of Alcoholic Beverage Control to a person so convicted. Appellee argues that $ 48-525 only applies to those violations of Act No. 7 of 1933 [Ark. Stat. Ann.\u00a7\u00a7 48-501\u201448-527 (Repl. 1964)] for which no specific punishment is provided and this would not include \u00a7 48-524. We do not reach the merits of appellee\u2019s argument on this point, however, because we are of the view that the circuit court is without authority to revoke a beer permit issued by the Department of Alcoholic Beverage Control.\nAct 159 of 1951 [Ark. Stat. Ann. 48-1301\u201448-1321 (Repl. 1964)] created the Department of Alcoholic Beverage Control and enumerated its various powers and duties. Section 13 of that Act [Ark. Stat. Ann. \u00a7 48-1312 (Repl. 1964)] is as follows:\n\u201cAll proceedings for tlie suspension and revocation of licenses shall be before the Director, and the proceedings shall be in accordance with rules and regulations which shall be established by the Director and not inconsistent with law. No such license shall be revoked except after a hearing by the Director with reasonable notice to the licensee and an opportunity to appear and defend...\u201d\nThe language of \u00a7 48-1312 is unmistakably clear, \u201cAll proceedings for the suspension and revocation of licenses shall be before the Director.. .No such license shall be revoked except after a hearing by the Director...\u201d (emphasis supplied). It is apparent that \u00a7 48-1312, which gives the Director of the Department of Alcoholic Beverage Control the exclusive power to revoke or suspend beer licenses, is repugnant to \u00a7 48-525 which gives lile circuit court the same power. We said in Hickey v. State, 114 Ark. 526, 170 S.W. 562, \u201cIt is a cardinal rule of statutory construction that where two legislative acts, relating to the same subject are necessarily repugnant to and in conflict with each other, the later act controls, and, to the extent of such repugnance or conflict, repeals the earlier act whether expressly so declared or not.\u201d We therefore hold that Ark. Stat. Ann. \u00a7 48-1312 (Repl. 1964) repeals, by implication, that portion of Ark. Stat. Ann. & 48-525 (Repl. 1964) which gives the convicting court the power to revoke a permit issued by the Department of Alcoholic Beverage Control to sell beer upon a conviction of the crime of selling beer to a minor. The circuit court, therefore, did not commit error when it refused to revoke the appellee\u2019s beer permit, and in this respect the cases will be affirmed.\nWe feel, however, that the circuit court was in error when it refused to assess any punishment against appellee upon a judgment of guilty. Ark. Stat. Ann. \u00a7 43-2324 (Repl. 1964) allows a judge, upon a verdict of guilty, to postpone the pronouncement of sentence if he deems it best for the defendant and not harmful to society. Ark. Stat. Ami. \u00a7 43-2326 (Repl. 1964) gives tlie court the authority to suspend the execution of jail sentences or the imposition of fines or both in all criminal cases. However, it is beyond the authority of a trial judge, upon a judgment of guilty, to simply refuse to assess any punishment. Graham v. State, 1 Ark. 171; Lindquist v. State, 213 Ark. 903, 213 S.W. 2d 895. Since this is the effect of tlie court\u2019s judgments and there was no attempt to either suspend or postpone the sentence, they are reversed.\nSince the errors asserted on this appeal are apparent on the face of the record, no objection, exceptions or motion for new trial was required before they could be reviewed here. Williams v. State, 47 Ark. 230, 1 S.W. 149; Hayes v. Hargus, 127 Ark. 22, 191 S.W. 408; Percifull and Wife v. Platt, 36 Ark. 456; Wells v. State, 193 Ark. 1092, 104 S.W. 2d 451. See also Williams v. City of Malvern, 222 Ark. 432, 261 S.W. 2d 6; Thomas v. State, 243 Ark. 147, 418 S.W. 2d 792.\nThe judgments are reversed as to refusal of tlie court to assess any punishment.\nBrown, J., not participating.\nByrd and Holt, JJ., dissent.\nConley Byrd, Justice.\nI disagree with that portion of the majority opinion which holds that the circuit court erred in refusing to assess any punishment against the appellee upon a judgment of guilty. All of our cases hold that before this court will review an error of the trial court there must be an objection, a ruling of the court, and an exception saved, Downs v. State, 231 Ark. 466, 330 S.W. 2d 281 (1960). In the record here I fail to find any objection to the trial court\u2019s action in failing to assess a fine against appellee. The complete record before the trial court is as follows:\n\u201cby the court:\n\u201cFirst, with respect to Mr. Lawrence, I find that he has been penalized enough by the economics of the situation. He has lost money by having to sell at a loss price than he could have on the open market with a reasonable time for negotiation, at a considerable loss. And I take notice that he has had expense before the Alcohol Control Board, and the Chancellor, and in the Municipal Court, and in this court. I think he has been punished far beyond the severity of the crime, and he is responsible only as an owner, and that\u2019s by a statutory sort of respondeat superior. Would that I could remit some of that, but I cannot.\n\u201cMr. Lurry and Mr. Campbell, I think probably they were negligent, if not .intentionally. \u2022 I see no reason to fine them, because I believe and I take judicial notice that Mr. Lawrence would have to pay out any fine that was assessed, which is a business-type thing. And certainly, I see no useful purpose in putting a 70-year-old sick man in the penitentiary or jail, or putting Lantz Lurry in jail. I don\u2019t see that any useful purpose would be served in either instance.\n\u201cBut whether their actions be intentional or negligent, I am going to keep them both out of the liquor selling business for a year. I am putting you each on probation for a year, the condition of your probation is good conduct, and no sales in any liquor stores. Mr. Campbell can continue to work for Mr. Lacy Lawrence in the present position he occupies. Are there any questions?\n\u201cby ]\\jr. goodson;\n\u201cNo sir. There will he a cost factor, I assume.\nBY THE COURT;\n\u201cI think I wall have to impose costs against the defendants. Although I know Mr. Lawrence has suffered terrific financial loss, there has to bo something. I can\u2019t make the county stand that. Mr. Clerk, will you submit a cost bill?\n\u201cBY MR. DENMAN \u00a1\n\u201cYour Honor, do I understand that the court is holding Mr. Lawrence guilty in this case?\n\u201cby the court:\n\u201cYes, sir, I have no alternative. There is a plea of nolo contendere; that is in one sense a confession of guilt, and I am adjudicating guilt across the board.\n\"BY MR. DENMAN:\n\u201cI didn\u2019t understand your statement then, sir.\n\u201cby the court:\n\u201cYes, sir.\n\u201cby mr. denman:\n\u201cThen I would call the court\u2019s attention to 45-525, sir, and rule on the permits of Mr. Lawrence.\n\u201cby the court:\n\u201cThe permits will not be affected.\n\u2018 \u2018 BY MR. DENMAN :\n\u201cWill not be affected?\n\"BY THE COURT:\n\u201cNo, sir.\n\u201cby mr. denman:\n\"Save our exceptions, your Honor.\n\u201cby the court:\n\u2018 \u2018 Very well. If there is nothing further, court will be in recess subject to call.\u201d\nThe only objection I can find in the- foregoing record lias to do with Ark. Stat. Ann. \u00a7 48-525 (Repl. 1964), and the objection there was limited to the trial court\u2019s failure to revoke the permits held by appellee.\nThis case is a prime example of the necessity for objections to the ruling of the trial court. Had the objection been made, the trial court could have simply assessed a one dollar fine as was done in Lindquist v. State, 213 Ark. 903, 213 S.W. 2d 895 (1948), and could have, under the majority opinion, immediately suspended assessment of the one dollar fine.\nFurther, I do not agree with the majority opinion that the trial court was in error in refusing to assess any punishment.- The statute here involved (\u00a7 48-524) provides, \u201cAny violation of the provisions of this section shall constitute a misdemeanor and shall be punished by a fine of not more than $500 and not more than one year in jail. .. .\u201d Thus as I read the criminal statute involved the only limitation placed on the court is that the sentence not exceed $500 or more than one year in jail. The case of Graham v. State, 1 Ark. 171 (1837), relied upon by the majority, involved a statute wherein the law declared that on conviction the person convicted should pay a fine not less than $100 and- not more than $200. In holding that a fine of $30 was illegal, we said :\n\u201cTo what good purpose has the Legislature defined punishment, and prescribed the quantum thereof, if the courts and juries are at liberty to disregard the former or, in their discretion, pass the limits prescribed for the latter? \u2022 Certainly not any. In this view of the subject, (and we think it is the only correct, view of it which can be taken,) it is -unimportant whether they undertake to mitigate or increase the punishment or fine: the one is as much a departure from the legal standard as the other. The former tends to favor, the latter to oppress, the person upon whom it is to operate. In either case, the law is violated, and public justice impaired or refused.\u201d\nThe matter of an inadequate sentence is treated in 21 Am. Jur. 2d Criminal Law % 538, p. 518, as follows:\n\u201cA sentence of less than the minimum punishment prescribed by statute is no less improper than a sentence in excess of the permissible maximum. It has been held, however, that such a sentence is not void. It is erroneous and subject to correction, but it is not a ground for reversing the judgment on appeal. Nor is it a ground for discharging the prisoner on habeas corpus, except that when an inadequate sentence has been fully served without having been corrected the prisoner is entitled to a discharge, subject to the right of the state to move for entry of a proper sentence pursuant to the verdict of conviction.\u201d\nTherefore, even if we overlook the failure of the state to object to the nonassessment of any fine, I can find nothing illegal in the court\u2019s conduct because the statute involved did not fix a minimum fine as was the case in Graham. As I read the record the trial court found Mr. Lawrence guilty of the offense charged and assessed court costs against him. With men of pride, a mere finding of guilt is often the severest of punishment.\nThe majority opinion suggests that the failure of the trial court to assess \u201ca fine of not more than $500\u201d is error apparent on the face of the record which does not require an objection. My search of the authorities shows that the method for correcting an inadequate sentence is by a timely motion in the trial court or by appeal from an adverse ruling on such motion, Spanton v. Clapp, 78 Idaho 234, 299 P. 2d 1103 (1956). This would appear to be the proper method or otherwise the keeper of the prisons could ignore the sentence set forth in the judgment of conviction and keep the prisoner for the minimum time set forth in the statute under which the prisoner stands convicted.\nFurthermore, Ark. Stat. Ann. \u00a7 43-2736 (Repl. 1964), provides that a misdemeanor judgment \u201c.. . shall only be reversed for errors of law apparent on the record to t lie prejudice of the appellant. \u2019 \u2019 Even if I should assume that the majority is correct in interpreting the statutory phrase of \u201cnot more than $500\u201d as also including a minimum fine, it becomes obvious that such minimum could be as small as one cent \u2014 he. less than the cost of the postage stamp necessary to get the Attorney General\u2019s approval, Ark. Stat. Ann. \u00a7 43-2733, (Repl. 1964). The record here shows that the trial court would be reluctant to enter more upon a remand and might even suspend the payment of that. Under the circumstances there can be no prejudice to the State which would call for a reversal.\nHolt, J., joins in this dissent.", "type": "majority", "author": "John A. Fooleman, Justice. Conley Byrd, Justice." } ], "attorneys": [ "Joe Purcell, Atty, Gen.; Don Langston, Asst. Atty. Gen., for appellant.", "Aubrey & Goodson for appellee." ], "corrections": "", "head_matter": "State of Arkansas v. W. L. Lawrence\n5-5394\n439 S.W. 2d 819\nOpinion Delivered April 14, 1969\n[Rehearing denied May 19, 1969.]\nJoe Purcell, Atty, Gen.; Don Langston, Asst. Atty. Gen., for appellant.\nAubrey & Goodson for appellee." }, "file_name": "0644-01", "first_page_order": 676, "last_page_order": 685 }