dissent">John E. Jennings, Judge,

dissenting. The majority accurately sets out the facts of this case by incorporating the trial court’s specific findings. Furthermore, it is clear that the trial court’s findings are supported by the evidence. The problem is that under the facts of the case at bar the appellant cannot be said to have violated Ark. Stat. Ann. § 50-523 (Repl. 1971). In Poole v. State, cited by the majority, the supreme court said:

Section 50-523, supra, by its provisions, relates only to one who “shall refuse or fail to pay the rent therefor, when due, according to contract” and after ten days notice to vacate, “shall wilfully refuse” to do so. [Emphasis mine.]

244 Ark. at 1226; 428 S.W.2d at 630.

The court was undoubtedly correct, because this is what the statute says. The appellant was no doubt wrong in relying on his lease with Mrs. Fisher, rather than believing Mrs. Garrich’s claim, and this course of action may well have subjected him to civil liability. He has no criminal liability, however, under Ark. Stat. Ann. § 50-523. He did not “refuse or fail to pay the rent therefor, when due, according to contract.” Under his contract with Mrs. Fisher no rent was due. He had no contract with Mrs. Garrich.

Penal laws are strictly construed, and all doubts in construing a criminal statute must be resolved in favor of the defendant. Lawson v. State, 295 Ark. 37, 746 S.W.2d 544 (1988). If the language of such provisions is not clear and positive, or if it is reasonably open to different interpretations, every doubt as to construction must be resolved in favor of the one against whom the enactment is sought to be applied. Wilcox v. Safley Construction Co., 298 Ark. 159, 766 S.W.2d 12 (1989). See also Gober v. State, 22 Ark. App. 121, 736 S.W.2d 18 (1987).

While it would seem, at first blush, that under the facts of the case at bar the appellant might have been charged with criminal trespass under Ark. Code Ann. § 5-39-203 (1987) (formerly Ark. Stat. Ann. § 41-2004 (Repl. 1977)), I agree with the majority that a conviction under this statute was probably foreclosed by the supreme court’s decision in Williams v. City of Pine Bluff, 284 Ark. 551, 683 S.W.2d 923 (1985). I cannot, however, understand how this lends support to the majority’s decision. Even if Ark. Stat. Ann. § 50-523 is the only statute under which the appellant might be prosecuted, we must still ask whether his conduct violates that statute.

I respectfully dissent.

Rogers, J., joins.

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