dissenting. The appellant, Bill Boren, Jr., was convicted of four counts of violating Ark. Code Ann. § 4-90-204(d) (1987) which prohibits sale of an automobile with knowledge that the mileage on the odometer shows fewer miles than the automobile has actually been driven without disclosing that fact to the buyer. I agree with Boren’s argument that a directed verdict should have been granted in his favor because the state’s evidence showed that he disclosed to the buyers of the cars that the mileage shown on the odometers was not accurate and was not to be relied on by the buyers.
The state’s witnesses included the purchasers of three cars from Boren Motor Company, owned and operated by Bill Boren, Jr. Chris Fox testified he bought a car from Boren, and Boren told him the odometer mileage was correct to the best of his knowledge. On cross-examination, Fox stated when he bought the car he received from Boren an “Odometer Mileage Statement.” It is a statement made on a form which is prescribed by federal regulations, and it contains basic information about the car, including the mileage shown on the odometer at the time of sale. The form has two groups of three alternative statements. Only one in each group of three may be checked by the seller. Fox testified that on the form he received, the box next to the following statement was checked: “I certify that to the best of my knowledge, the odometer reading as stated above is not the actual mileage of the vehicle described below and should not be relied upon.” The second “not” was underlined. In the second group, the following statement was checked: “I hereby certify the odometer of said vehicle was not altered, set back or disconnected while in my possession, and I have no knowledge of anyone else doing so.” Fox’s signature, acknowledging receipt of a copy of the form appears at the bottom. The form is reproduced below.
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John Paschall testified he bought a car from Boren. He asked if it were not common practice for dealers to turn back odometers, and Boren replied that it was practically impossible to do it on the newer models with digital type odometers. On cross-examination, Paschall testified he received an odometer statement like the one given to Fox, disclosing that the odometer reading was not to be relied upon, and his wife signed it.
Jess Staggs testified he bought a car from Boren but kept it only two hours because his son, a police officer, told him to check the mileage, and he compared it with a statement (the origin of which he did not reveal) stating the car had been sold earlier in Springfield, Missouri, showing substantially higher mileage. His money was returned to him when he returned the car. He said nothing about any conversation with Boren about the mileage, but on cross-examination he confirmed receiving a mileage statement like those received by Fox and Paschall disclosing the alteration of the odometer and advising him not to rely on it.
A bank officer testified his bank had financed the purchase of a car from Boren by Herb Sharpe. He presented a copy of Sharpe’s note and the title to the car which showed the mileage at the time the note was made. Also presented was a bill from Boren showing the mileage on the car.
At the conclusion of the state’s case, Boren moved for a directed verdict on the ground that there had been no showing that he knew the odometers had been altered and that he had disclosed to the buyers that they could not rely upon the odometers as correct statements of the mileage on the cars. The motion was denied.
In his case in chief, Boren presented as an exhibit a disclosure statement to Sharpe like the others. The state thus presented three witnesses who testified they had received the disclosure forms from Boren with respect to the cars they purchased from him. As to the fourth car, the one purchased by Sharpe, the state presented no evidence whatever that the sale was made without the disclosure about which Boren testified.
Perhaps the heart of the state’s brief is the following:
Boren knew that the odometer readings had been altered. As shown above, this was sufficiently proved by circumstantial evidence [citations omitted]. With this fact in mind, the state proved beyond a reasonable doubt that Boren failed to meet the disclosure requirement of Ark. Code Ann. § 4-90-204(d) by failing to comply with Ark. Code Ann. § 4-90-206(a); knowing that the odometer readings were inaccurate, it was Boren’s duty under Arkansas law to state that the mileage was unknown. By failing to do so, he failed to comply with the disclosure requirement. But cf. Rider Oldsmobile, Inc. v. Wright, 415 F.Supp. 258 (M.D. Penn. 1976).
Thereafter the state cites cases to the effect that statutes must be given an interpretation which meets the intention of the legislature and does not result in absurdity or injustice. Missing from the state’s brief and from the majority opinion are citations to the cases holding that statutes which criminalize conduct must be construed strictly, e.g., Knapp v. State, 283 Ark. 346, 676 S.W.2d 729 (1984); Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984); Clayborn v. State, 278 Ark. 533, 647 S.W.2d 433 (1983). We recognized in Knapp v. State, supra, that we should also try to give effect to the intent of the legislature. We will not carry the interpretation so far as to favor the accused, Clayborn v. State, supra, to the extent of overruling the clear intent of the legislature, Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985). In this case, however, the statute is clear in its provision that it is the sale of a car having a rolled back odometer without disclosure that is against the law. We should not allow a conviction to stand where each of the witnesses on whose testimony the case stands or falls testifies the accused did the very thing which, according to the words of the statute, absolves him of guilt. The state has not shown that any sale was “without disclosure.”
The odometer disclosure statement form used by Boren is the one federal law requires dealers to use in states which have not adopted an official form which meets federal requirements. See 49 C.F.R. 580.4, 580.6 (1987). We cannot know what the jurors thought, but it may be that they felt Boren had not told the truth when he stated on the form that the odometer on each of the cars was not rolled back while the car was in his possession and that he had no knowledge of anyone else doing so. There was, as the state argues, circumstantial evidence that the rollbacks occurred while the cars were in Boren’s possession. That, however, if it is a crime, is not one with which Boren was charged.
The majority opinion is intent on affirming this conviction because “the misleading character of the disclosure document becomes overwhelming predominate.” It ignores the fact that the form used by Boren is the one he is required to use by federal law. The majority opinion states, “the customer was deprived of essential information and is misled as to the true facts.” The point is that Boren was tried and convicted for selling a car with a rolled back odometer without disclosure. He was convicted of violation of a particular criminal law statute and not some vague concept of misrepresentation.
The effect of the majority opinion is not only to ignore the rule that we construe criminal statutes strictly, it ignores the provision in the statute which permits conviction only for sale of a vehicle with a lowered odometer reading “without disclosing such fact to prospective purchasers.” Given the failure of the state’s evidence to show any sale was made “without disclosure” the judgment of the trial court should be reversed, and the case dismissed.
I respectfully dissent.
Purtle and Dudley, JJ., join this opinion.