Horn v. State

P. A. Hollingsworth, Justice.

In June of 1981, Sam and Roy Horn were arrested in the City of Springdale. Roy Horn was charged with possession of a controlled substance, fictitious tags, possession of a prohibited weapon, and contributing to the delinquency of a minor. Sam Horn was charged with possession of a controlled substance and minor in possession. On July 1, 1981, both of the Horns were tried in the Municipal Court of Prairie Grove, Arkansas. Roy Horn was found guilty and fined $400.00. Sam Horn was found guilty and fined $300.00. Both appealed their convictions to the Circuit Court of Washington County, Arkansas. After a hearing on December 2, 1982, the Washington County Circuit Court affirmed the judgment of the Prairie Grove Municipal Court on April 28, 1983. On appeal, the appellants challenge the court’s finding that the law does not require the defendant to be charged and tried in the municipal court nearest the point of arrest.

Appellants assert that the legislative act is unconstitutional in that it violates their equal protection right guaranteed by the United States and Arkansas Constitutions.

Upon examining the record, it appears this issue is raised for the first time here. The pertinent part of the transcript of the December 2, 1982 hearing contains the following colloquy between counsel for appellants and the court:

The Court: Now, gentlemen, is there any stipulation as to the facts? Are you wanting this court to resolve jurisdiction?

Mr. Murphy: Venue, Your Honor.

The Court: Venue only?

Mr. Butler: Just venue, Your Honor.

The Court: Do you want to make any stipulation as to the facts involved? You are only wanting to challenge venue?

Mr. Murphy: I am only challenging venue. I will stipulate that one Horn boy was 20 years of age, actually he was 3 weeks under age 21, and that the license was not the proper license on the vehicle.

The Court: That’s what I’m getting at. Assuming for a minute that the Court finds venue was improper, then that would end the matter; . . .

Mr. Murphy: I’ll plead nolo. I’ll go ahead and stipulate the facts; I am not arguing on that. All I said I would fight was venue.

On appeal the appellants make an equal protection argument based on the inability of county residents to vote for a municipal judge who has countywide authority. The re.cord in the trial court does not indicate this objection was raised below or that the appellants stated their voting rights were denied. An objection must be sufficiently specific to apprise the trial court as to the particular error complained of in order to preserve the right to appellate review. Tosh v. State, 278 Ark. 377, 646 S.W.2d 6(1983). We will not consider matters raised for the first time on appeal. Swaite v. State, 274 Ark. 154, 623 S.W.2d 176 (1981); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366(1980).

We do not follow the plain error doctrine whereby we address plain errors affecting substantial rights which were not brought to the attention of the trial court. Cargo Carriers, Inc. v. Ragland, 278 Ark. 401, 646 S.W.2d 681 (1983); Sanders v. State, 276 Ark. 342, 635 S.W.2d 222 (1982).

Ark. Stat. Ann. § 22-709 (Repl. 1962) grants municipal courts county wide jurisdiction and does not provide an automatic right of removal or change of venue. Section 22-721 provides for change of venue for certain situations, none of which are pertinent to the facts in the case before us.

Affirmed.

Adkisson, C.J., Hickman and Purtle, JJ., dissent.