author: PER CURIAM

text:
    In Re: Petition of Wayne R. Williams to Surrender Attorney’s License
    July 19, 1976
   PER CURIAM

'I’his matter involves the petition of Wayne R. Williams which states that a complaint is pending against him before the Supreme Court Committee on Professional Conduct.

Mr. Williams admits the allegations against him are substantially true, and he petitions the Court as follows:

I therefore petition this Court to accept my surrender of my Attorney’s License and to remove me from the list of attorneys authorized to practice law in the State of Arkansas for a period of two (2) years and that following the said period of two (2) years that I then be considered eligible for reinstatement as a licensed attorney in Arkansas subject to such conditions as may be set by this Court concerningj any pertinent considerations for re-admission including, but not limited to, establishment of my then good character and my good conduct during the suspension period [italics supplied].
I make this request without any reservations and hope this matter will be handled without any undue publicity. I herewith tender my license certificate to this Court.

The Court also has received from the Executive Secretary of the Committee on Professional Conduct the following letter:

The Committee on Professional Conduct has held two long hearings concerning the alleged misconduct of Attorney Wayne R. Williams, formerly charged with bribery in state courts. An extensive investigation was conducted on behalf of the committee. Mr. Williams was afforded the opportunity to voluntarily surrender his license to practice law in lieu of a disbarment suit being filed by the committee. He expressed a desire to do this, and there has been considerable negotiation to draft a Petition to surrender his license that was satisfactory to Mr. Williams and would be acceptable to the committee for a recommendation to the Court to accept it.
I have today received a Petition executed by Mr. Williams acceptable to the committee, along with his license certificate, and have delivered them both to Jimmy Hawkins for filing with the Court. I am instructed by the committee to recommend to the Court it accept this Petition according to the terms therein.

Phis Court is most fortunate in having on the Professional Conduct Committee seven outstanding members of the bar, men of the highest caliber, men dedicated to maintaining high standards in the legal profession. Their duties entail careful investigation of complaints questioning the ethical conduct of attorneys and then taking whatever action may be prescribed by the Rules of Professional Conduct governing attorneys. When deemed appropriate, recommendations are made to this Court. These men aré called upon to take long hours from their own busy professional schedules to serve the larger interest and welfare of the entire bar of this State in carrying out these responsibilities.

As indicated in the letter of transmittal from the Committee, after two long hearings, much deliberate consideration and lengthy negotiations the Committee recommended that we accept the petition according to its terms. Certainly we attach great weight to the recommendation of the Committee which heard the testimony of petitioner and other witnesses who came before it. The members of the Committee are in a much better position to gauge appropriate action in this matter than this Court which has not seen the witnesses nor heard the testimony.

This Committee ably carries out the responsibilities delegated to it, and in performing their duties the members of the Committee gave consideration not only to the Code of Professional Responsibility but also to the action taken and pronouncements made by this Court in applying sanctions in previous cases.

Accordingly we deem it appropriate to accept surrender of petitioner’s license for a two-year period, but this does not mean petitioner will be automatically reinstated at the end of this period. Petitioner will only be readmitted upon a satisfactory showing to the Board of Law Examiners that his character and integrity are such that he deserves readmittance. Another condition of the suspension is that petitioner refrain from assisting any other attorney engaged in the practice of law and from accepting employment by any other attorney in any capacity whatever during the term of his suspension. The burden of proof shall rest upon petitioner in making those showings to the Board of Law Examiners.


source: Caselaw Access Project

license: Public Domain

text:
    In re: SUPREME COURT PROCEDURE FOR SITTING IN DIVISIONS
    July 19, 1976
   PER CURIAM

'Fhe court’s caseload has more than doubled in the past fifteen years and continues to increase from year to year. As a measure necessary to keep the docket current the court has unanimously decided that, at least until the procedure proves to be unsatisfactory or there is some other change in circumstances, the court will exercise its constitutional, statutory and inherent authority to sit in divisions. There will be two divisions, each consisting of the Chief Justice and three associate justices, with the makeup of the divisions rotating from time to time. Whenever a division is not unanimous the case will be referred to the full court. The court will also sit in banc from the outset in cases presenting a substantial question arising under the Arkansas Constitution, in criminal cases in which capital punishment has been imposed, in cases of original jurisdiction under Rule 17, and in other cases designated by the Court. All opinions in all cases will be circulated to all seven judges and considered in conference before their release. As in the past, no decision will be reached without the concurrence of at least four members of the court. No other change in the court’s procedure or rules is expected to be necessary.


author: Conley Byrd, Justice.

text:
    Roy James POWELL and Georgia Marie POWELL v. STATE of Arkansas
    CR 76-68
    540 S.W. 2d 1
    Opinion delivered September 13, 1976

      Skillman, DeWitt & Davis, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

For reversal of their convictions for possessing more than an ounce of marijuana with intent to sell and deliver, the appellants, Roy James Powell and Georgia Marie Powell raise the following issues:

1. The trial court erred in not granting appellants ’ motion to quash search warrant and to suppress any items obtained from such search.
2. The trial court erred in not directing a verdict for appellants.
3. The trial court erred in not permitting appellants to impeach the testimony of witness, Joe Morgan.
4. The trial court erred in not permitting appellants to introduce into evidence the petition to revoke suspended sentence of witness for the State, Joe Morgan.
5. The trial court erred in not ordering the return of appellant, Roy James Powell, funds confiscated by the officers.

The facts stated most favorably to the jury’s findings show that after an informant, Joe Morgan, had made a purchase of a lid of marijuana from the Powells with a marked $20 bill, a search warrant was obtained to search the home. When the searching officers knocked on the door of the Powell home, there was some resistance by Mr. Powell while Mrs. Powell was seen running through the house and handling a plastic bag. Joe Morgan testified that when he purchased the lid of marijuana, he gave the marked $20 bill to Mrs. Powell and that she went into another room and got him the marijuana and brought him his change — the lid cost $15.00. At the time of the search and arrest $1,264.00, including the marked $20 bill, was taken from the Powells.

POINT I. The attack upon the search warrant is two fold—i.e. (1) there is no statutory authority for city officers to serve a search warrant and (2) Officer Presley, who signed the affidavit for the search warrant had no reason to believe Joe Morgan. We find no merit in either contention. Ark. Stat. Ann. § 43-204 authorizes a search by a “public officer” and the city police would certainly fall within the definition of a public officer.

To support the argument that Officer Presley had no reason to believe Joe Morgan, the appellants rely upon portions of Joe Morgan’s testimony elicited at the criminal trial to collaterally attack the affidavit presented to the magistrate who issued the search warrant. However, we held in Liberto & Mothershed v. State, 248 Ark. 350, 451 S.W. 2d 464 (1970), that the validity of the issuance of a search warrant could not be retrospectively attacked by the production of other evidence.

POINT II. We find no merit to the contentions of either of the Powells that they were entitled to a directed verdict. The testimony of Joe Morgan is sufficient to sustain the verdict when viewed from the substantial evidence rule applied to jury verdicts. In addition there was other evidence from the searching officers that tied both of the Powells to the possession for sale of the drugs.

POINTS III & IV. In making the contentions that they were entitled to impeach the credibility of Joe Morgan’s testimony on collateral matters appellants recognize that we have ruled to the contrary in Spence v. State, 184 Ark. 139, 40 S.W. 2d 986 (1931), and in Swaim v. State, 257 Ark. 166, 514 S.W. 2d 706 (1974), but suggest that those authorities should be overruled. We decline to overrule those authorities which are based upon Ark. Stat. Ann. § 28-707 (Repl. 1962). Without the restriction on collateral matters a simple trial could be carried on for years. The rule applies also to impeachment of a witness where an indictment has been returned against him, Anderson v. State, 34 Ark. 257 (1879).

POINT V. Appellants assert that the trial court relied upon Ark. Stat. Ann. § 43-2403 (Repl. 1964), for not returning the money taken from them at the time of the search and arrest. The State contends that the possession of a large amount of cash money had independent relevance to the charge and that the State properly held it for evidence. Except for the marked $20 bill that was in the possession of Powell at the time of his arrest, we can find no authority that would support the confiscation of the Powells’ money pending the trial. Ark. Stat. Ann. § 43-2403, was before this court in Lawson v. Johnson & Ashley, 5 Ark. 168 (1843), and we there stated:

“This provision of law, we have no doubt, creates a lien in favor of the State, on all of the property of a person charged with a criminal offence, wheresoever it may be within the limits of the State, which attaches upon and binds it, not only in the hands of the accused, but also in the hands of any other person who shall, in any manner, possess or hold it, from the time of the arrest or indictment found, as mentioned in the Statute, until the accused is discharged from the prosecution, or such fines and costs, as shall be adjudged against him, are paid. But it surely was not the design of the law to confiscate the property of the accused, or to divest him of the possession or use of it pending the prosecution.”

Except for the marked $20 bill, the money taken from the Powells should have been returned upon a signed receipt identifying the amount and kind of bills. To hold otherwise would run the risk of confiscating a person's property without due process of law.

However, the marked $20 bill, that was used to purchase the illegal drugs, was specifically identifiable as such and was subject to seizure pursuant to Ark. Stat. Ann. § 43-205 (Supp. 1975).

It accordingly follows that the judgment of conviction is affirmed but the trial court is reversed in so far as it refused to refund the money, other than the marked $20 bill, to the appellants.

Affirmed in part and reversed in part.

We agree: Harris, C.J., and Holt and Roy, JJ.


author: Carleton Harris, Chief Justice. Conley Byrd, Justice, Carleton Harris, Chief Justice.

text:
    James L. MASON and Bob LAMB v. George O. JERNIGAN, Jr., Secretary of State of the State of Arkansas
    76-197
    540 S.W. 2d 851
    Opinion delivered September 20, 1976 (In Banc)
    [Supplemental Opinion on Denial of Rehearing delivered October 11, 1976, p. 399.]

      Smith, Williams, Friday, El dredge & Clark, by: William J. Smith, James W. Moore and Robert V. Light, for petitioners.

      Jim Guy Tucker, Atty. Gen., by: Lonnie A. Powers, Dep. Atty. Gen., for respondents.

      Youngdahl, Larrison & Agee, for Intervenor, Arkansas State AFL-CIO.
   Carleton Harris, Chief Justice.

This is an original action. Petitioners, pursuant to Amendment No. 7 to the Arkansas Constitution, on July 9, 1976, filed their petition in this court, seeking to enjoin the Secretary of State from certifying to the State and County Boards of Election Commissioners the ballot title and popular name of a proposed amendment to the Constitution, known as Proposed Amendment No. 59, specifically, a proposed amendment to Amendment No. 34 of our Constitution. It is the contention of • petitioners that the popular name given to the proposed amendment is misleading, deceptive, partisan, and obscures the true nature of the content of the amendment. It is also asserted that the ballot title is inadequate and insufficient and is not an impartial nor intelligible description of particular provisions, inasmuch as it distorts or withholds pertinent and vital information concerning the scope and effect of the proposed measure.

The entire amendment is not of great length. The popular name given the proposal is “Amendment to the ‘Rights of Labor’ Amendment” and it is contended that the name given is deficient in that it has a tendency to mislead the voter. Petitioners point out that the present constitutional provision (Amendment No. 34), when adopted at the General Election of 1944, bore the popular name “Freedom to Work;” that this is the name that has been generally used in identifying this particular constitutional provision in legal periodicals and press articles, and that the public is familiar with that title. While this is true, the fact remains that the phrase “Right to Work” is only what might be termed a commonplace, or informal identification of the Act. Actually, the official compilation of the laws of Arkansas characterizes Amendment No. 34 as “Rights of Labor,” this designation being approved by the Arkansas Statute Revision Commission, which is charged with the duties necessary to the publication of our statutes, and such designation has been used from 1947 to the present time, appearing in like manner in the last (1975) Supplement to the Digest.

The ballot title in question provides as follows:

“An Amendment to Amendment No. 34, ‘Rights of Labor.’ To the Constitution of Arkansas: To continue those provisions of Amendment No. 34 which prohibit denial of employment because of membership in, affiliation with, resignation from, or refusal to join a labor union, prohibit any contract which denies employment because of membership, refusal to join, or resignation from a labor union, and prohibit compelling of the payment of labor organization dues as a condition of employment; but to provide that the foregoing provisions shall not apply if three conditions are met: (a) Employees in an existing bargaining unit vote by secret ballot majority vote to remove them in an election conducted by an Arkansas State Agency, (b) The affected employer agrees to contract for labor union membership as a condition of employment, and (c) all employees may participate or not participate in labor union meetings and similar activities; to continue the enforcement power of the General Assembly; but to give the Arkansas Department of Labor (or department designated by the Governor) the power to establish rules and regulations for employee elections and to conduct such elections; and for other purposes.”

Before discussing the particular points involved, perhaps it would be well to mention the general principles of law applicable to this type of case. In Fletcher v. Bryant, 243 Ark. 864, 422 S.W. 2d 698, we pointed out that some significance must be given to the fact that the Arkansas Attorney General approved the ballot title, pursuant to Ark. Stat. Ann. § 2-208 (Repl. 1956); in fact, we quoted from a Colorado case (which quoted the language of a California case), to the effect that only in a clear case, should a title so prepared be held insufficient. In Fletcher, citing earlier Arkansas cases, this court said:

“In determining the sufficiency of this ballot title, we will keep in mind that we give a liberal construction and interpretation of the requirements of Amendment 7 in order to secure its purposes to reserve to the people the right to adopt, reject, approve or disapprove legislation.” [Our emphasis]

We added that:

“Actions of electors in seeking to exercise this right must not be thwarted by strict or technical construction. ” Reeves v. Smith, 190 Ark. 213, 78 S.W. 2d 72.

Also, in McDonald v. Bryant, 238 Ark. 338, 381 S.W. 2d 736, it was pointed out that the question is not how court members may individually feel about a measure, but rather whether legal requirements for submission of a measure to the voters have been complied with.

We have said that a popular name (as well as a ballot title) must be free from “catch phrases and slogans which tend to mislead and color the merit of the proposal.” Moore v. Hall, 229 Ark. 411, 316 S.W. 2d 207. We cannot see that the present popular name violates those requirements. There is nothing in the name that suggests approval or disapproval of the subject matter that follows; in fact, it would appear that the name “Rights of Labor” is perhaps more non-partisan than the name “Right to Work,” since offhand it can certainly be considered that members of the general public favor the right of persons to work. In Johnson v. Hall, 229 Ark. 400, 316 S.W. 2d 194, we commented that the popular name there involved, “Trainmen Crew Amendment,” would appear to have no effect upon the voters’ thinking, one way or the other, i.e., it was completely non-partisan.

This brings us to the ballot title itself. We have said that a ballot title must be “free from ‘any misleading tendency, whether of amplification, of omission, or of fallacy,’ and it must not be tinged with partisan coloring.” Bradley v. Hall, 220 Ark. 925, 251 S.W. 2d 470. In the litigation before us, it somewhat appears that the attack of the petitioners on the ballot title is really an attack on the amendment itself, as being deceptive and misleading as to the purpose to be accomplished. Petitioners state:

“While masquerading as an amendment to Amendment No. 34, the proposal in fact is much more drastic than an outright repeal such as advanced in the aborted 1950 attempt. A repeal would leave the General Assembly with authority to occupy, to the extent its legislative judgment prompted, the area of State sovereignty preserved by Sec. 14(b). The proposed measure would enshrine in our Constitution a rigid formula, beyond the competence of the General Assembly to revise, for the imposition of labor union membership and support on the unwilling workers of Arkansas. ***
“The elector is first beguiled with the assurance that the very provisions of the Constitution that the proposed Amendment is designed to emasculate will be ‘continue (d)’, and then reference is made to certain seemingly narrow and unimportant situations in which they ‘shall not apply.’ The sole purpose of the ballot title is to inform the elector how the proposal would change existing law — change or retention of that law is the choice left to him at the polls. The ‘shall not apply’ clause is hardly calculated to apprise the voter that adoption of the proposal would repeal existing constitutional prohibitions. ***.”

As to the elector being deceived by the fact that there is duplication of the language appearing in the original amendment, it, of course, is true that the original amendment is copied; however, approximately half way through Section 1, the amendment provides that the foregoing restrictions “shall not apply if all of the following free choices have been made.” In other words, exceptions are created to the original amendment. In amending statutes, this is generally the procedure followed. Most often, when a statute is amended by the General Assembly, it reiterates all the language of the statute that is retained and simply inserts the changes that are made. Actually, if the original language of Amendment No. 34 is to be retained as a part of the proposed constitutional amendment, such language, of course, must necessarily be placed in the amendment. We do not understand the argument relative to “shall not apply” referring to “certain seemingly narrow and unimportant situations” for the exceptions are certainly the “meat” of the proposal; no language is pointed out by petitioners wherein the amendment indicates that these changes are only “minor.” Of course, the fact that the provisions of Amendment No. 34, presently in effect, would not be applicable to every situation that might arise if proposed Amendment No. 59 is adopted could not, we think, be more clearly made known, than by using the language that under certain conditions, those provisions “shall not apply.” There is complaint that the ballot title does not mention “union shop” and “agency shop, ” but those particular terms do not appear in proposed Amendment No. 59. Let it be remembered that the purpose of a ballot title is not to “interpret” the amendment, but only to summarize adequately the provisions of such amendment; nor is it our function in the present litigation to interpret the amendment itself.

The defects which have invalidated some ballot titles in the past as inadequate, partisan, and misleading are illustrated by several cases. In Johnson v. Hall, supra, the ballot title provided “An Amendment Prohibiting Operation of Trains with Unsafe and Inadequate Crews.” In disapproving this title, we said:

“We think it can safely be said that ail citizens are against the operation of trains that do not carry sufficient crews to reasonably assure safety. We cannot conceive that anyone would vote the contrary of this proposition, viz., to permit the operation of trains with unsafe and inadequate crews. The amendment itself seeks to declare that to operate trains with inadequate crews, (meaning, of course, a crew less than that provided in the act), ‘ is detrimental to the safety and welfare of the people. * * *’ But there has been no prior determination that this assertion is always true. Actually, this is a fact question, depending upon the circumstances in each case. Such reasoning is in the nature of ‘begging the question,’ which is defined as ‘founding a conclusion on a basis that needs to be proved as much as the conclusion itself.’ Here, the voter is urged to support a measure which provides for a particular crew in the operation of trains, because to operate with a smaller crew is, according to the ballot title, ‘unsafe and inadequate’ — but the ‘unsafe and inadequate’ remains to be proved.”

In another Johnson v. Hall, found at 229 Ark. 404, 316 S.W. 2d 197, the ballot title for proposed constitutional Amendment No. 52 was rejected as inadequate, the court stating:

“The ballot title here — An amendment to require adequate safety devices at all public railroad crossings, — obviously, we think, would convey to the voter, or carry the presumption to him, that at present the railroads were not using adequate safety devices at all public crossings and that our present statutes do not provide adequate protection for the highway traveler. Certainly all good citizens would vote for adequate protection at public crossings. There is nothing in this ballot title that tells the voter that this amendment would require all railroads in Arkansas to install and maintain at each public crossing or street electrically controlled warning signals, and in addition electrically controlled boards or gates on each side of the public railroad crossings, without any regard to the distance that said crossing might be from a source of electric power, and that such a requirement would place an additional burden of heavy expense on the railroads of millions of dollars to install and maintain such devices, at an estimated 3,600 public railroad crossings in Arkansas, whether the daily traffic count over such crossings amounted to a dozen vehicles or thousands.”

Again, in Walton v. McDonald, Secretary of State, 192 Ark. 1155, 97 S.W. 2d 81, a proposed constitutional amendment contained forty-nine sections and provided, in brief, levy of a permanent general sales tax of two per cent, and further provided an appropriation of thirty-three and one-third per cent of the gross proceeds of a tax on horse and dog racing, these taxes to be levied for the benefit of the old age and pension fund. In rejecting the title, this court, in an opinion by Justice Frank Smith, said:

“The title carries an appeal to all humane instincts. Few would object to some provision being made for the support of the aged and blind; but to levy a general sales tax of two per cent, for that, or any other purpose, is a different question altogether, and would furnish the elector, however generous his impulses might be, serious ground for reflection if that information were imparted to him by the title of the question upon which he exercised his right of suffrage. Especially would this be true if he were also advised that the act appropriates to its purposes thirty-three and one-third per cent, of the gross proceeds of the tax on horse and dog racing, which amounted, during the last biennium, to the gross sum of $379,059.73.”

How does the ballot title of proposed Amendment No. 59 comport with the standards, earlier mentioned, which must be followed if a ballot title is to be considered proper and adequate? In other words, is it “free from any misleading tendency, whether of amplification, of omission, or a fallacy, and not tinged with partisan coloring?” Let us compare the amendment and the ballot title.

PROPOSED AMENDMENT

provided, however, that the foregoing governmental restrictions shall not apply if all of the following free choices have been made:

(a) the employees in an existing collective bargaining unit have had an opportunity to participate in a secret ballot election conducted by an Arkansas state agency and the result of such election is a majority vote to remove the foregoing restrictions for that unit.

BALLOT TITLE

but to provide that the foregoing provisions shall not apply if three conditions are met:

(a) employees in an existing bargaining unit vote by secret ballot majority vote to remove them in an election conducted by an Arkansas state agency,

(b) the affected employer has agreed to an otherwise legal contract provision concerning labor union membership as a condition of employment.

and (c) all employees have freedom to participate or not participate in labor union meetings or similar activities.

(b) the affected employer agrees to contract for labor union membership as a condition of employment,

and (c) all employees may participate or not participate in labor union meetings and similar activities;

It is apparent that this abstract or summation is adequate and sufficient to summarize the changes proposed to Amendment No. 34 by proposed Amendment No. 59, and is not misleading nor tinged with partisan coloring.

It follows that the petition seeking to enjoin the Secretary of State from certifying to the State and County Boards of Election Commissioners the ballot title and popular name of this proposed amendment, should be denied.

It is so ordered.

Fogleman, Byrd, and Roy, JJ., dissent.

Conley Byrd, Justice,

dissenting. I can see no reason to depart from our prior rulings upon the sufficiency of ballot titles to Initiative and Referendum petitions. In Bradley v. Hall, Secretary of State, 220 Ark. 925, 251 S.W. 2d 470 (1952), we had before us a proposal carrying the popular name “Modern Consumer Credit Amendment.” In holding both the popular title and the ballot title deficient, we stated the simple basic rules for determining the sufficiency or insufficiency of the ballot title to an initiated proposal in this language;

“Our decisions upon the sufficiency of ballot titles have been so numerous that the governing principles are perfectly familiar. On the one hand, it is not required that the ballot title contain a synopsis of the amendment or statute. Sturdy v. Hall, 204 Ark. 785, 164 S.W. 2d 884. It is sufficient for the title to be complete enough to convey an intelligible idea of the scope and import of the proposed law. Westbrook v. McDonald, 184 Ark. 740, 43 S.W. 2d 356, 44 S.W. 2d 331. We have recognized the impossibility of preparing a ballot title that would suit every one. Hogan v. Hall, 198 Ark. 681, 130 S.W. 2d 716. Yet, on the other hand, the ballot title must be free from ‘any misleading tendency, whether of amplification, of omission, or of fallacy, and it must not be tinged with partisan coloring, Walton v. McDonald, 192 Ark. 1155, 97 S.W. 2d 81.
It is evident that before determining the sufficiency of the present ballot title we must first ascertain what changes in the law would be brought about by the adoption of the proposed amendment. For the elector, in voting upon a constitutional amendment, is simply making a choice between retention of the existing law and the substitution of something new. It is the function of the ballot title to provide information concerning the choice that he is called upon to make. Hence the adequacy of the title is directly related to the degree to which it enlightens the voter with reference to the changes that he is given the opportunity of approving. ”

To determine the scope and import of the proposed amendment we must first determine what changes would.be brought about by the proposal. Since the proposal here involved re-enacts both sections of the “Freedom to Work” amendment but amends each section with a proviso, that portion of the proposal before us which contains the language of the Freedom to Work amendment is hereinafter set out in ordinary type and the provisos added by the sponsors of the proposal are italicized. The proposed amendment sponsored by the Labor Union provides:

“Be It Enacted by the People of the State of Arkansas:
Amendment No. 34 to the Constitution of Arkansas is amended to read as follows:
Section 1. No person shall be denied employment because of membership in or affiliation with or resignation from a labor union, or because of refusal to join or affiliate with a labor union; nor shall any corporation or individual or association of any kind enter into any contract, written or oral, to exclude from employment members of a labor union or persons who refuse to join a labor union, or because of resignation from a labor union; nor shall any person against his will be compelled to pay dues to any labor organization as a prerequisite to or condition of employment; provided, however, that the foregoing governmental restrictions shall not apply if all of the following free choices have been made: (a) the employees in an existing collective bargaining unit have had an opportunity to participate in a secret ballot election conducted by an Arkansas State agency and the result of such election is a majority vote to remove the foregoing restrictions for that unit, (b) the affected employer has agreed to an otherwise legal contract provision concerning labor union membership as a condition of employment, and (c) all employees have freedom to participate or not participate in labor union meetings and similar activities.

Section 2. The General Assembly shall have power to enforce this article by appropriate legislation; provided, however, that the Arkansas Department of Labor (or, if there is no Arkansas Department of Labor, such executive department as designated by the Governor) shall have power to establish rules and regulations for the administration of the election provisions of this article, and to conduct such elections. ”

When the “proviso” in Section 1 is reduced to ordinary language it amends the Freedom to Work Law to permit a labor union when certified as a bargaining unit by the Arkansas Department of Labor to compel an employer to discriminate against persons who refuse to join a union. Included in the amendment is a deceptive requirement that “all employees have freedom to participate ... in labor union meetings” but of course after the employer is forced to hire only union members, the provision becomes nothing more than window dressing because federal law now guarantees each union member such rights.

The proviso in Section 2 of the labor union proposal is still more deceptive. It abolishes the usual checks and balances of the three departments of government — i.e. the executive, the legislative, and the judicial — and gives to the governor through the Department of Labor the right to legislate the ground rules for determining what shall be a bargaining unit, how and when the employee elections shall be held and the sole power to determine the outcome of the elections.

Now in determining whether the ballot title before us has fulfilled its function of providing the voter with the information concerning the choice that he is called upon to make, we must look to the ballot title which provides:

“AN AMENDMENT TO AMENDMENT NO. 34, “RIGHTS OF LABOR.” TO THE CONSTITUTION OF ARKANSAS: TO CONTINUE THOSE PROVISIONS OF AMENDMENT NO. 34 WHICH PROHIBIT DENIAL OF EMPLOYMENT BECAUSE OF MEMBERSHIP IN, AFFILIATION WITH, RESIGNATION FROM, OR REFUSAL TO JOIN A LABOR UNION, PROHIBIT ANY CONTRACT WHICH DENIES EMPLOYMENT BECAUSE OF MEMBERSHIP IN, REFUSAL TO JOIN, OR RESIGNATION FROM A LABOR UNION, AND PROHIBIT COMPELLING OF THE PAYMENT OF LABOR ORGANIZATION DUES AS A CONDITION OF EMPLOYMENT; BUT TO PROVIDE THAT THE FOREGOING PROVISIONS SHALL NOT APPLY IF THREE CONDITIONS ARE MET: (a) EMPLOYEES IN AN EXISTING BARGAINING UNIT VOTE BY SECRET BALLOT MAJORITY VOTE TO REMOVE THEM IN AN ELECTION CONDUCTED BY AN ARKANSAS STATE AGENCY, (b) THE AFFECTED EMPLOYER AGREES TO CONTRACT FOR LABOR UNION MEMBERSHIP AS A CONDITION OF EMPLOYMENT, AND (c) ALL EMPLOYEES MAY PARTICIPATE OR NOT PARTICIPATE IN LABOR UNION MEETINGS AND SIMILAR ACTIVITIES; TO CONTINUE THE ENFORCEMENT POWER OF THE GENERAL ASSEMBLY; BUT TO GIVE THE ARKANSAS DEPARTMENT OF LABOR (OR DEPARTMENT DESIGNATED BY THE GOVERNOR) THE POWER TO ESTABLISH RULES AND REGULATIONS FOR EMPLOYEE ELECTIONS AND TO CONDUCT SUCH ELECTIONS: AND FOR OTHER PURPOSES.”

While I consider the whole ballot title deceptive, for purposes of demostration, I will particularize with reference to the latter portion of the ballot title which provides:

. . to continue, the enforcement power of the General Assembly, but to give the Arkansas Department of Labor (or Department designated by the Governor) the power to establish rules and regulations for employee elections and to conduct such election; and for other purposes.”

No where in the ballot title can it be determined that the General Assembly has no control over what shall constitute a bargaining unit. No where does it appear that the General Assembly cannot provide for a contest of the results of an election held by the Department of Labor. Yet the fair implication of the ballot title is to the contrary. With respect to a similar implication in Bradley v. Hall, Secretary of State, 220 Ark. 920, 929, 251 S.W. 2d 470, 472 (1952), we said:

“The ballot title itself is also misleading. It states that the amendment will empower the General Assembly ‘to authorize, define, and limit charges, in addition to interest.’ The word ‘authorize is taken from the measure itself and is accurately used; as we have seen, the amendment does authorize charges in addition to interest. But the term is not used alone; the phrase is ‘authorize, define, and limit.’ The fair implication of the phrase as a whole is that the legislature is to be given new and additional power to curb charges in addition to interest. Yet this implication has a manifest tendency to mislead, since the true purpose of the amendment is pretty nearly the exact opposite.”

While I will not address the matter in detail, I only ask how, a voter, in making his choice, could realize that the scope and import of the proposal is so great that “closed” shops in governmental agencies (i.e. police departments, fire departments, schools, etc.) could result.

Supplemental Opinion on Rehearing delivered October 11, 1976

Since I believe that the law should be applied alike fairly and impartially to all litigants and all proposals, I can find no good reason not to apply simple test of our former decisions to the ballot title before us. It must be remembered that the citizens of this State have consistently placed restrictions upon the making of amendments to the constitution whether it be a proposal submitted by the General Assembly pursuant to Article 19 § 22 or by a petition of the electorate pursuant to Amendment No. 7.

For the reasons stated, I respectfully dissent.

Fogleman, and Roy, JJ., join in this dissent.

Rehearing denied.

Carleton Harris, Chief Justice.

In their petition for rehearing, petitioners contend that this Court’s decision is based on a sentence appearing in the opinion, taken from the holding in Fletcher v. Bryant, 243 Ark. 864, 422 S.W. 2d 698, viz., “and that where reasonable minds might differ as to the sufficiency of the title, same should be held sufficient.”

The petitioners are in error as to the basis of our holding in the present litigation. In fact, the quoted language might even be considered dictum and, at any rate, means so little to the decision that we herewith amend the opinion by striking said language from same.

The crux of our holding, emphasized throughout the opinion, is that the summation in the ballot title is adequate and sufficient to summarize the changes proposed, is not misleading, and is not tinged with partisan coloring. As stated in Hoban v. Hall, 229 Ark. 416, 316 S.W. 2d 185, it is our duty to approve the ballot title where it “represents an impartial summa lion of the measure.” See also Moore v. Hall, 229 Ark. 411, 316 S.W. 2d 207, and Bradley v. Hall, 220 Ark. 925, 251 S.W. 2d 470. That is our finding in this litigation.

Rehearing denied.

      “Amendment No. 34 to the Constitution of Arkansas is amended to read as follows:
      Section 1. No person shall be denied employment because of membership in or affiliation with or resignation from a labor union, or because of refusal to join or affiliate with a labor union; nor shall any corporation or individual or association of any kind enter into any contract, written or oral, to exclude from employment members of a labor union or persons who refuse to join a labor union, or because of resignation from a labor union; nor shall any person against his will be compelled to pay dues to any labor organization as a prerequisite to or condition of employment; provided, however, that the foregoing governmental restrictions shall not apply if all of the following free choices have been made(: (a) the employees in an existing collective bargaining unit have had an opportunity to participate in a secret ballot election conducted by an Arkansas state agency and the result of such election is a majority vote to remove the foregoing restrictions for that unit, (b) the affected employer has agreed to an otherwise legal contract provision concerning labor union membership as a condition of employment, and (c) all employees have freedom to participate or not participate in labor union meetings and similar activities.
      Section 2. The General Assembly shall have power to enforce this article by appropriate legislation; provided, however, that the Arkansas Department of Labor (or, if there is no Arkansas Department of Labor, such executive department as designated by the Governor) shall have power to establish rules and regulations for the administration of the election provisions of this article, and to conduct such elections.”

      This Commission is composed of five persons, viz., the Dean of the School of Law of the University of Arkansas, the Attorney General of the State of Arkansas, and three members of the Bar named by the Supreme Court.

        Say v. Baker, 322 P. 2d 317.

        Epperson v. Jordan, 82 P. 2d 445.

        Coleman v. Sherrill, 189 Ark. 843, 75 S.W. 2d 248; Armstrong v. Sturch, 235 Ark. 571, 361 S.W. 2d 77.

      In Moore v. Hall, supra, cited by petitioners, we held a ballot title defective because, says petitioners, “while it was aimed at prohibiting ‘featherbedding, ’ the ballot did not mention that widely understood term. ” We simply point out that in that proposed amendment, Section 1 provided “Practices known as ‘featherbedding’ are contrary to the public policy of this state.”

      The other provisions are similarly summarized and reflect the full content of the measure.

      Petitioners state that this sentence, in Fletcher, was dictum.


author: George Rose Smith, Justice.

text:
    Hoyle Bruce BEDELL v. STATE of Arkansas
    CR 76-77
    541 S.W. 2d 297
    Opinion delivered September 20, 1976
    [Rehearing denied October 25, 1976.]

      Simpson & Riffel, by: Kirby Riffel, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is the second appeal in a prosecution for the offense of manufacturing marihuana. The salient facts were stated in the first opinion and need not be repeated. Bedell v. State, 257 Ark. 895, 521 S.W. 2d 200 (1975). Upon a second trial Bedell was again convicted and was sentenced to a five-year term and a $2,500 fine. Several points for reversal are argued.

The appellant is mistaken in his argument that the manufacture of a controlled substance for one’s own use is not an offense. The personal-use exemption applies only to the preparation or compounding of such a substance. Ark. Stat. Ann. § 82-2601 (m) (Supp. 1975). Manufacture, however, includes production, which in turn includes planting, cultivating, and growing the substance. § 82-2601 (u). There is abundant proof that Bedell was growing marihuana on his farm. In fact, he so admitted on the witness stand.

There was no prejudicial error in the procedure by which the State introduced the marihuana plants into evidence. The State’s expert witness, Manuel Holcomb, a chemist, identified the exhibits as marihuana. His qualifications as a chemist are not questioned. He testified that a chemical analysis is essential in the identification of marihuana. That testimony rebuts the appellant’s argument, made without proof, that only a botanist should be permitted to identify the plant. We do not find Holcomb’s analysis to have been deficient. He tested at least one of the plants that were taken from the field and visually checked other plants in the same bag. He also tested other specimens of marijuana that were discovered in Bedell’s home. There was no defect in the important chain of custody; that is, from the officers’ seizure of the plants in the fields to their delivery of the plants to Holcomb. It is true that the exhibits were not kept constantly under lock and key after their use as evidence at the first trial, but that was merely a circumstance to be considered by the jury in weighing the testimony. Rogers v. State, 258 Ark. 314, 524 S.W. 2d 227 (1975).

Our ruling upon the first appeal, that the prohibition against unreasonable searches and seizures does not extend to open fields and forested areas, has become the law of the case and will not be re-examined. The doctrine known as the law of the case applies to issues of constitutional law. Feldman v. State Board of Law Examiners, 256 Ark. 384, 507 S.W. 2d 508 (1974); Miller Lbr. Co. v. Floyd, 169 Ark. 473, 275 S.W. 741 (1925), affirmed, 273 U.S. 672 (1927). Hence it is immaterial that a federal trial court, after our decision upon the first appeal in this case, decided the point the other way. United States ex rel. Gedko v. Heer, 406 F. Supp. 609 (W.D. Wis. 1975). If the appellant thought our first decision to be wrong he had the opportunity to seek a review by the United States Supreme Court.

Affirmed.

We agree. Harris, C.J., and Fogleman and Jones, JJ.


text:
    James ROLAND v. STATE of Arkansas
    CR 76-57
    540 S.W. 2d 590
    Opinion delivered September 20, 1976

      Bill W. Bristow, for appellant.

      Jim Guy Tucker, Atty. Gen., by: B. J. McCoy, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

The issue in this case is not what laws, appellant James Roland, may have violated, but whether he was entitled to a directed verdict, upon a charge of an accessory after the fact to the delivery of a controlled substance by one John White. Ark. Stat. Ann. § 41-120 (Repl. 1964), defines an accessory after the fact as follows:

“An accessory after the fact is a person who, after a full knowledge that a crime has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of the crime.”

The State did not attempt to prove that John White had committed the offense of selling a controlled substance but to the contrary freely admitted that the controlled substance, of which he was charged with selling to the narcotics officer, tested out to be baking soda. The proof submitted against James Roland was that he knew that White was charged in Independence County with selling a controlled substance and that he had furnished the plane fare to White and transported White to Memphis, Tennessee, to catch a plane. The State also complained to the jury of the fact that James Roland had made it possible for White to consult with White’s lawyer in Batesville without being detected by the authorities. Roland testified that John White told him about the charge in Independence County and that it arose out of a sale of caffein to an under cover narcotics agent. That Roland’s knowledge of the sale was correct can be seen from the following quote from the opening statement of the State to the jury:

“One officer, Dan Sanders, with the State Police Narcotics Division thought that he was going to develop sufficient evidence against John White, made a purchase and warrants were issued and it developed that instead of being guilty of selling a controlled substance, John White was even smarter than everybody thought he was, he even went around bragging about it; that a Narc got close to him but he sold him a hundred dollars worth of baking soda, who could tell, white powder is white powder and a narcotics officer is not going to take out a field test kit and test it in front of him, that wouldn’t hardly go over. So the State did buy $50.00 or $100.00 worth of baking soda from John White and charged him with selling whatever it was he said it was, THC or heroin; or cocaine I think it Was. Later it turned out, as I say, after we sent it to the laboratory, that he is guilty of obtaining money under false pretenses.”

The authorities with respect to the conviction of a person as an accessory after the fact generally hold:

“To constitute a person as accessory after the fact these essentials must appear; (1) The felony must have been committed. (2) The accused must know that the felony has been committed by the person received, relieved or assisted. (3) The accessory must render assistance to the felon personally. . . State v. Potter, 221 N.C. 153, 19 SE2d 257 (1942).”

Our own cases hold that before one can be convicted as an accessory to a crime he must have full knowledge that the crime has been committed. See State v. Jones, 91 Ark. 5, 120 SW 154 (1909), and Stevens v. State, 111 Ark. 299, 163 SW 778 (1914).

It follows that the trial court erred in not directing a verdict for the appellant Roland.

Reversed and dismissed.

We Agree: Harris, C.J., and George Rose Smith, Holt and Roy, JJ.


author: Elsijane T. Roy, Justice.

text:
    George O. JERNIGAN, Secretary of State et al v. Walter R. NIBLOCK et al
    76-249
    540 S.W. 2d 593
    Opinion delivered September 20, 1976 (In Banc)

      Jim Guy Tucker, Atty. Gen., by: Lonnie A. Powers, Dep. Atty. Gen., and Eugene R. Warren, for appellants.

      Charles A. Brown and U. A. Gentry, for appellees.
   Elsijane T. Roy, Justice.

Appellees instituted this action to enjoin the Secretary of State from certifying to the appropriate election officials Proposed Constitutional Amendment No. 58. Thereafter the Arkansas Medical Society was granted permission to intervene as party-defendant.

Appellees contend inter alia that House Joint Resolution No. 17 (H.J.R. No. 17) was not passed with the formalities required by Article 19, § 22 of the Arkansas Constitution. The trial court agreed with appellees and held that the House and Senate had adopted different versions of H.J.R. No. 17 and that the popular name and ballot title of the proposed amendment “are not in accordance with existing case law . .. . ” Accordingly, the court enjoined the Secretary of State from taking any further action to place Proposed Constitutional Amendment 58 on the ballot. From said decree this appeal is pursued.

We review the record to see if constitutional requirements have been met. There is no dispute as to what the journals of the House and the Senate reflect. H.J.R. No. 17, in pertinent part, reads as follows:

SECTION 1. Amendment twentysix (26) to the Constitution of the State of Arkansas is hereby amended to read:
The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payments shall be made. It shall also have the power to enact laws prescribing the amount of compensation to be paid to persons for injuries or death caused by malpractice performed by practitioners of the healing arts as classified by Title 72 of the Statutes of the State of Arkansas. It shall have power to provide the means, methods and forum for adjudicating claims arising under said laws and for securing payment of same. Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the general assembly shall prescribe for whose benefits such action shall be prosecuted. (Italics supplied.)

On January 16, 1976, H.J.R. No. 17 was amended (Amendment No. 3) by striking lines 29 and 30 on page 1 and substituting the following:

To persons for injuries or death caused by malpractice performed by hospitals, nursing homes, certified registered nurse anesthetists, and by practitioners of the healing arts as classified by Title 72 of the Statutes.

The House journal shows the amendment was adopted by more than 51 votes, but the yeas and nays were not recorded.

On January 19, 1976, H.J.R. No. 17 was again spread on the record of the House journal as originally introduced but without making the changes indicated in Amendment 3.

Later the resolution was amended (Amendment 4) by deleting the phrase “as classified by Title 72 of the Statutes of the State of Arkansas,” with the yeas and nays being recorded.

On January 26, 1976, the resolution as a whole was read in the House the third time, with the yea and nay vote being recorded, but again the words of Amendment 3 “by hospitals, nursing homes, certified registered nurse anesthetists” were omitted.

The Senate journal indicates that when H.J.R. No. 17 was called up for a third reading and final passage, it was spread upon the journal, in extenso, with the yea and nay vote recorded. The resolution of the Senate included the words “by hospitals, nursing homes, certified registered nurse anesthetists” which did not appear in the H. J.R. No. 17 as finally adopted by the House.

Article 19, § 22 of the Arkansas Constitution in pertinent part reads as follows:

§ 22. Constitutional amendments.-Either branch of the General Assémbly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all members elected to each house, such proposed amendments shall be entered on the journals with the yeas and nays.....(Italics supplied.)

In McAdams v. Henley, 169 Ark. 97, 273 S.W. 355 (1925), this Court stated:

We have decided that the provision in § 22, art. 5, requiring the yeas and nays to be entered on the journal on the final passage of a bill, is mandatory, and that the omission renders an enactment void. Smithee v. Garth, 33 Ark. 17; State v. Bowman, 90 Ark. 174; Butler v. Board of Directors, 103 Ark. 109.

In Bryant v. Rinke, 252 Ark. 1043, 482 S.W. 2d 116 (1972), we reaffirmed that where the journal, after attempted corrections, did not reflect the yea and nay votes on two resolutions after amendment, as required by Article 19, § 22 of the Arkansas Constitution, these defects were fatal to the resolution.

In Coulter v. Dodge, 197 Ark. 812, 125 S.W. 2d 115 (1939), we stated:

* * * In other words, it was essential that the journals of both the House and Senate show definitely and certainly what amendment had been approved for submission, and that both the House and the Senate had concurred in the submission of the same amendment, and that the journals of the two Houses, when read together, make this fact definite and certain.

In distinguishing the case from McAdams, supra, the Court said:

* * * Had the House amended the Senate resolution, as was done in the case of McAdams v. Henley, supra, then it would have been necessary for the House to enter the resolution as amended, in extenso, upon the journal of the House, and if the Senate concurred in the amendment made by the House, it would also have been necessary for the Senate to again enter upon its journal the amended resolution, thus showing its concurrence therein. * * * (Italics supplied.)

The entries here do not reflect that the same proposal to amend the Constitution was entered upon the House journal and the Senate journal. Amendment 3 was adopted by viva voce vote, the yea and nay vote not recorded in the House journal, and, furthermore, this amendment was not spread upon the record in the final passage of H.J.R. No. 17 by the House. Thus the House and Senate versions of the proposed amendment clearly differ.

Appellants contend, citing the Coulter, supra and McAdams, supra, cases, that if the Court looks at the “complete record of the passage of this resolution it can come to no other conclusion but that the House and the Senate passed the same versión of this resolution.” We cannot agree for to reach this conclusion we would have to assume or presume that the final vote of the House was a mistake and that the House did not intend to vote on H.J.R. No. 17 as it is reflected in the journal. We cannot make this assumption or rewrite the journals, but must scrutinize them as recorded.

In Rice v. Palmer, 78 Ark. 432, 96 S.W. 396 (1906), this Court quoted with approval from Collier v. Frierson, 24 Ala. 100 (1854), stating:

The Constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It is said that certain acts are to be done, certain requisitions are to be observed, before a change can be effected. But to what purpose are these acts required or the requisitions enjoined, if the Legislature or any other department of the government can dispense with them? To do so would be to violate the instrument they are sworn to support; and every principle of public law and sound constitutional policy requires the court to pronounce against every amendment which is shown not to have been made in accordance with the rules prescribed by the fundamental law.

We are compelled by the record before us to find that constitutional procedures were not followed when the General Assembly adopted Proposed Constitutional Amendment 58.

Appellees also contend, and the trial court found, that the ballot title and popular name failed to meet the requirements of the law. In view of our decision on the first point it is unnecessary to discuss this issue.

For the foregoing reasons, we affirm the decree of the chancellor holding that Proposed Constitutional Amendment 58 should not be placed on the election ballot, and the injunction previously entered is made permanent.

Affirmed.


text:
    Barney B. NORTON v. STATE of Arkansas
    CR 76-54
    540 S.W. 2d 588
    Opinion delivered September 20, 1976

      Thomas & Nussbaum, for appellant.

      Jim Guy Tucker, Atty. Gen., by. Jack Lassiter, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

Certain merchandise was removed from the golf course pro shop at Diamondhead Resort in Garland County. Norman Hall, chief of security, and Richard James, golf course superintendent, were notified and located a missing golf cart used to facilitate removal of the stolen articles. The merchandise was heaped on a canvas cover which had been removed from the cart. Hall and James set up surveillance of the cart and merchandise. Shortly thereafter an automobile approached with three passengers. The occupants of the car while in the process of transporting the stolen items from the cart to the vehicle were confronted by Hall and James. The two men carrying the goods fled, and Hall fired a shot over their heads. One of the men, Robert Lisenby, fell to the ground and was apprehended. The second continued his escape. The third, identified as appellant Barney Norton, fled in the car to a point on the road where he picked up the unknown suspect. As Hall and James approached the car Norton fired three shots at them. Search of Lisenby disclosed a key to a motel room in which appellant Norton was later found and arrested.

Appellant was charged and found guilty of assault with intent to kill by use of a firearm in violation of Ark. Stat. Ann. § 41-606 (Repl. 1964) and Ark. Stat. Ann. § 43-2336 (Supp. 1975).

On appeal appellant first questions the procedure utilized by the trial court in impaneling the jurors. Ark. Stat. Ann. § 43-1903 (Repl. 1964) and Clark v. State, 258 Ark. 490, 527 S.W. 2d 619 (1975), require that the State exercise its peremptory challenges prior to exercise of challenges by the defendant. The court allowed, and appellant participated in, simultaneous exercise of jury challenges without objection. Since no objection was made appellant cannot now rely on the alleged error. Ford v. State, 253 Ark. 5, 484 S.W. 2d 90 (1972). See also Tanner v. State, 259 Ark. 243, 532 S.W. 2d 168 (1976).

Appellant also suggests error in the trial court’s denial of his request for a directed verdict. Only when no issue of fact exists is a directed verdict proper. The testimony of Norman Hall and Richard James was sufficient to warrant submission of the issue of identification to the jury, and the issue was resolved against appellant. We affirm if there is any substantial evidence to support the verdict. Burks v. State, 255 Ark. 23, 498 S.W. 2d 336 (1973).

Appellant’s counsel at the trial objected to the court’s instruction no. 5 as being inaccurate because neither Hall nor James owned the stolen property. The court revised the instruction to show the property as belonging to the Diamondhead Pro Shop. After the court revised the instruction appellant made no further objection. He now complains the instruction in effect made a judicial comment on the evidence. A failure to point out to the court the particular objection and the grounds therefor precludes appellant from raising the point for the first time on appeal. Ford v. State, supra, and Cassidy v. State, 254 Ark. 814, 496 S.W. 2d 376 (1973) .

Appellant next contends it was error for the State’s witnesses to testify that appellant refused to sign the rights form. The burden is upon the State to prove that appellant was advised of his constitutional rights and the questioned testimony was offered for this purpose. Appellant raised no objection to the introduction of the rights form into evidence at the trial. His failure to object precludes consideration of this contention on appeal. Ford v. State, supra.

Appellant alleges error in the asking of questions concerning his connection with suspected crimes. A witness on behalf of appellant was asked if he had ever solicited appellant’s services for the purpose of burning a restaurant. The record reflects the State accepted the negative answer of the witness. Appellant was also questioned as to his guilt in other suspected crimes occurring in Colorado and Arkansas. Appellant denied any involvement in the mentioned crimes. In no instance did the State argue with appellant about his answers. Neither is there any indication of a lack of good faith since all of the crimes about which appellant was asked appeared on his arrest record. We have held that it is permissible to ask a defendant, in good faith, if he is guilty of committing a named criminal offense. Moore v. State, 256 Ark. 385, 507 S.W. 2d 711 (1974). See also Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974).

Appellant also argues that the court erred in allowing the jury to defer to the trial court in the setting of punishment. Although unanimous in determining the guilt of appellant, the jury was unable to agree upon the penalty. Ark. Stat. Ann. § 43-2306 (Repl. 1964) provides that the court may assess the punishment in such cases. Therefore, this contention is without merit.

The court with appellant and his lawyer both present made the following statement before imposing sentence:

When you were arraigned, you were informed that the penalty on assault with intent to kill involved the possibility of imprisonment for a period of not less than 1 nor more than 21 years and that the use of the firearm permitted the Court to add an additional 15-year sentence which means that the sentences could run from 1 to 36 years without any question.

The court continued:

Mr. Norton, based upon the jury verdict in finding you guilty of the offense with assault with intent to kill by use of a firearm as charged, the Court finds that you are convicted and it is so adjudged; and it is further adjudged that you are committed to the custody of the Department of Corrections or its authorized representatives for imprisonment for a period of 30 years in the State Penitentiary; and that you are to serve at least 10 years of said term prior to parole.

At no time was any objection made to the sentencing procedure — or any request made for the court to indicate the term imposed under each statute. Ark. Stat. Ann. § 43-2337 (Supp. 1975) provides the term of confinement under the firearms enhancement statute shall run consecutively to the period of confinement for the felony conviction, and appellant has suffered no prejudice by the court’s action. Section 43-2306 provides that when a jury fails to agree on the punishment the court shall assess the punishment. Thus the action of the court does not constitute reversible error since the time imposed was within the discretion of the trial court and also within statutory limits. In Thornton v. State, 243 Ark. 829, 422 S.W. 2d 852 (1968), we observed that:

* * * It is within the discretion of the trial court to fix sentences within the limits prescribed by law, .... (Italics supplied.)

There is nothing to show any abuse of discretion by the trial court.

There being no reversible error, the judgment is affirmed.

We agree. Harris, C.J., and Byrd and Holt, JJ.

      Since repealed by Acts 1975, No. 928, § 3, effective January 1, 1976.


text:
    Debbie LONG v. STATE of Arkansas
    CR 76-63
    542 S.W. 2d 742
    Substituted Opinion delivered November 8, 1976

      Jerry C. Post, for appellant.

      Jim Guy Tucker, Atty. Gen., by: B. J. McCoy, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Upon a charge of selling a controlled substance (methamphetamine) the appellant was found guilty and was sentenced to eight years’ confinement. For reversal she contends that the court should have directed a verdict in her favor and that the prosecuting attorney was permitted to make an improper closing argument to the jury.

Upon the first point the appellant insists that under Section 41-305 of the new Arkansas Criminal Code the person who made the purchase from her was an accomplice, that his testimony about the sale was not corroborated, and that she was therefore entitled to a directed verdict. This language in the new Code is relied upon: .

Unless otherwise provided by the statute defining the offense, a person is not an accomplice in an offense committed by another person if:
* * *
(b) the offense is defined so that the defendant’s conduct is inevitably incident to its commission. [§ 41-305.]

The Code was not yet effective when the present offense was committed, but Section 41-102 provides that with respect to a prior offense a defendant may elect to have “the construction and application of any defense” governed by the Code. Upon that basis the appellant argues that she made such an election in the trial court and is entitled to rely upon the definition of an accomplice set forth in subsection (b) of § 41-305, quoted above.

We cannot sustain that contention. The appellant is correct in arguing that the subsection in question applies to the person who bought the drug from her, even though it refers to the defendant’s conduct. The section is part of Title 41, Chapter 3, entitled “Parties to Offenses.” Section 41-301 provides that a person may commit an offense either by his own conduct or that of another person. The next few sections refer to an accomplice not, as here, with respect to the need for corroboration of his testimony but, instead, with respect to his accountability for the criminal conduct of another person. Hence the subsection in question applies to the appellant’s vendee, although he is not now the defendant.

Even so, the appellant’s reliance upon the subsection is misplaced, for two reasons. First, the Code provides that with regard to an offense committed before the effective date of the Code the defendant may elect to have the construction of “any defense” governed by the provisions of the Code. This appellant’s argument does not involve a “defense,” as defined in Section 41-110 of the Code. Wholly apart from the Code, our law has long required that the testimony of an accomplice be corroborated. Ark. Stat. Ann. § 43-2116 (Repl. 1964). The State’s failure to adduce proof corroborating the testimony of an accomplice is certainly not a new defense created by the Code, no matter how the word “accomplice” is defined.

Secondly, under the quoted subsection of the Code, the purchaser in this case was not an accomplice, because his conduct was “inevitably incident” to the commission of the offense charged. That is, there cannot be an unlawful sale of a controlled substance unless someone buys it. It is immaterial that this purchaser may have solicited the sale, because, except for entrapment (which is not involved here, as the buyer was not a police officer), it makes no difference whether the buyer solicited the sale or the seller solicited the purchase. The offense is committed in either situation.

The appellant is correct, however, in her second point for reversal. The prosecutor, in his closing argument, told the jury what he stated to be a true story, to show the harmful effect of drugs. He said that in his own home town a 16-year-old boy had been so affected by drugs that he had run after a railroad train, barking and flapping his arms, because he thought it was the train to glory; that later in the evening the boy had broken dishes and a window to avoid restraint; that early the next morning he was choking his mother, thinking her to be the devil; and that he engaged in other irrational conduct before being subdued. The prosecutor went on to say that at the time of the trial, a year later, the boy was at the State Hospital in Little Rock where he was known as the Serpent Boy, because “he moves around down there like a snake, on his belly, and darts his tongue daily and constantly, because he now thinks that he is the evil serpent.” Defense counsel’s objection and motion for a mistrial were overruled by the trial judge, with the statement that “it is proper argument.”

We consider the prosecutor’s statement to have been decidedly improper and manifestly prejudicial. As Wigmore points out, counsel’s arguments to the jury may be based upon matters of fact of which evidence has been introduced or which are so well known as to be the subject of judicial notice. But representations of fact must not be made upon counsel’s own credit, for he would then become a witness without being subject to cross-examination. Wigmore on Evidence, § 1806 (Chadbourn Rev., 1976). We have frequently found it necessary to award a new trial because of counsel’s overzealousness in arguing to the jury matters of fact not supported by the proof. Dillaha v. State, 257 Ark. 476, 517 S.W. 2d 513 (1975); Wilson v. State, 253 Ark. 10, 484 S.W. 2d 82 (1972); Simmons & Flippo v. State, 233 Ark. 616, 346 S.W. 2d 197 (1961). Those cases are controlling here. The prosecutor’s detailed narrative about the Serpent Boy was presented to the jury as a true account, but it had no basis in the evidence. Moreover, the trial court emphasized the error by declaring it to be proper argument. We certainly cannot say with confidence that the remarks were not prejudicial. Complaint is also made with respect to another phase of the closing argument, but there is no reason to expect a recurrence upon a new trial.

Reversed.

We agree. Harris, C.J., and Fogleman and Jones, JJ.


text:
    William Jessie HARRIS v. STATE of Arkansas
    CR 76-100
    540 S.W. 2d 859
    Opinion delivered September 27, 1976

      James A. Neal, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

For reversal of a robbery conviction — with the use of a firearm, appellant William Jessie Harris raises the issues hereinafter discussed.

The record shows that the Scottish Inn Motel was robbed sometime between 11:30 p.m. and midnight on January 21, 1975, by a man brandishing a single shot shotgun. Taken in the robbery was some six hundred dollars in currency and some quarters. The robber also took a moneybag that contained the housekeeper’s keys to the motel.

An investigator, Mike Goomeer, was dropping another officer off at the Scottish Inn around 11:30 to pick up his car. While there he noticed that nobody was at the office desk and that a Ford automobile described as 1968-1970 white over light tan was parked at an odd angle in a parking space away from the other automobiles. Based upon the information given by Mike Goomeer, Officer James Bolin arrested appellant at 12:10 a.m., some twenty minutes after the robbery was reported. Appellant at the time was driving a white over light olive green 1969 Ford. The automobile was fairly dirty at the time. In the automobile the officers found $667.00 consisting of paper money and five rolls of quarters. The search also revealed a single shot shotgun loaded with single “0” buckshot and a red moneybag containing a bronze key attached to an identification tag reading “Scottish Inn Housekeeper.” Mike Gooneer identified the automobile driven by appellant as the car he had previously observed at the Scottish Inn.

As can be seen from the foregoing summary of the evidence, we can find no merit to appellant’s suggestion that there was no substantial evidence to support the jury’s verdict.

The contention of appellant that the trial court erred in admitting evidence concerning property seized from appellant without introducing the property has no merit. See Swearingin v. State, 251 Ark. 700, 474 S.W. 2d 111 (1971) and Maynard v. State, 252 Ark. 657, 480 S.W. 2d 353 (1972).

Neither can we find any merit to appellant’s contention that he was denied the effective assistance of counsel because of the trial court’s refusal to grant a continuance. The record shows that through his retained counsel he had previously obtained two continuances. On the day before trial he switched counsel and asked for another continuance. Obviously a trial court does not abuse its discretion in denying a continuance in such instances. Any other rule would permit a defendant to get successive continuances so long as he had the money to hire a new lawyer for each court setting.

Affirmed.

We agree: Harris, G.J., and Holt and Roy, JJ.


author: Frank Holt, Justice.

text:
    Joe McMILLAN v. MEUSER MATERIAL & EQUIPMENT Co., Inc.
    76-21
    541 S.W. 2d 911
    Opinion delivered September 27, 1976
    [Rehearing denied November 1, 1976.]

      Crouch, Blair, Cypert & Waters, by: Michael H. Mashburn, for appellant.

      Davis, Douglas & Penix, for appellee.
   Frank Holt, Justice.

The trial court, sitting as a jury, found appellant McMillan breached a contract to buy a bulldozer from appellee Meuser and assessed $2,700 as appellee’s damages ($2,595 actual and $105 incidental). From that judgment comes this appeal.

On December 13, 1973, the parties entered into their agreement. The purchase price, including a bellhousing, was $9,825, f.o.b. Springdale. Meuser arranged transportation of the bulldozer to Greeley, Colorado, the residence of appellant. On December 24, 1973, McMillan stopped payment on his check asserting that since the agreed delivery date was December 21, the delivery was past due. Appellee’s version is that the delivery date was January 1, 1974. After unsuccessful negotiations between the parties or about two months after the appellant purchaser stopped payment on his check, appellee brought this action. On March 5, 1975, or about fourteen months following the alleged breach of the purchase contract, appellee sold the bulldozer for $7,230 at a private sale. During this fourteen month interval, the equipment remained unsheltered, although regularly serviced, on an Arkansas farm, which was its situs when the sale contract was made.

We first consider appellant’s assertion that the resale by appellee did not constitute the good faith and commercial reasonableness which is required by Ark. Stat. Ann. § 85-2-706 (Add. 1961). Appellee responds that this defense was not properly raised at trial. We must disagree with appellee. Appellee alleged in its complaint that it had made reasonable efforts to resell the bulldozer. The length of time between the alleged breach and the resale were joined in issue by appellee’s direct testimony:

Q: Bill, at the end of a year what did you do with the bulldozer? Did you decide you wanted to keep it or did you decide to sell it?
A: No, after I kept the cat the twelve months for the man and he didn’t come get it and didn’t accept it, and this had all been filed and the paper work, and what-have-you, on it, I turned around and started seeking a buyer for it.

The time of the resale was again referred to, without objection, in the cross-examination of the appellee:

Q: I believe you also testified that you waited a year after the 13th of December [1973], I guess, before you started trying to sell it again; is that right?
A: That is true.
Q: Okay. So from December 13, ’73 until approximately December of ’74, you kept it?
A: I didn’t try to sell it until after the first of the year, this year. [1975]
Q: So from December 13th, 1973, until the first of this year, you just let it sit?
A: I did.
Q: You didn’t try to sell it for a whole year?
A: Nope.

Furthermore, appellant in his motion for a directed verdict specifically invoked § 85-2-706 and, inter alia, stated “ [T]hat sale is not commercially reasonable and they cannot rely on that for damages in this case.” As indicated, after review of the record, we are of the opinion that the issue of the commercial reasonableness of the resale was sufficiently raised at trial for our determination of the issue.

We turn now to appellant’s contention that the resale by appellee Meuser was not in accordance with the requirements of § 85-2-706. The statute provides in pertinent part:

(1) Under the conditions stated in § 2-703 [85-2-703] on seller’s remedies, the seller may resell the goods concerned for the undelivered balance thereof. Where the resale is made in good faith and in a commercially reasonable manner the seller may recover the difference between the resale price and the contract price together with any incidental damages allowed under the provisions of this Article (§ 2-710 [§ 85-2-710]), but less expenses saved in consequence of the buyer’s breach.
(2) Except as otherwise provided in subsection (3) or unless otherwise agreed resale may be at public or private sale including sale by way of one or more contracts to sell or of identification to an existing contract of the seller. Sale may be as a unit or in parcels and at any time and place and on any terms but every aspect of the sale including the method, manner, time, place, and terms must be commercially reasonable. . . .

Thus, in order to recover the damages prescribed in subsection (1), subsection (2) requires that every aspect of the resale including the method, manner, time, place, and terms must be commercially reasonable. The purpose of the resale provisions is discussed in Anderson, Uniform Commercial Code 2d, § 2-706:19, at p. 385, where it is stated:

.... the object of the resale is simply to determine exactly the seller’s damages. These damages are the difference between the contract price and the market price at the time and place when performance should have been made by the buyer. The object of the resale in such a case is to determine what the market price in fact was. Unless the resale is made at about the time when performance was due it will be of slight probative value, especially if the goods are of a kind which fluctuate rapidly in value, to show what the market price actually was at the only time which is legally important.

In Comment 5 following § 85-2-706, the writers make it clear that “what is such a reasonable time depends upon the nature of the goods, the conditions of the market, and the other circumstances in the case.”

In Bache & Co., Inc. v. International Controls Corp., 339 F. Supp. 341 (1972), it was held, at least as to the sale of securities, that the resale must be as soon as practicable following notice of the buyer’s refusal to accept tender of the goods. There a delay in excess of a month before resale was held unreasonable. In Uganski v. Little Giant Crane & Shovel, Inc., 192 N.W. 2d 580 (Mich. 1971), Uganski, the buyer, after his revocation of acceptance, resold heavy equipment, a crane, some two years and two months from the date of his notice of revocation of acceptance. There the court held his two year delay in reselling the crane was commercially unreasonable.

Here, even though we accord a liberal interpretation to the U.C.C., which mandates that remedies be so administered, we are of the view that the resale of the bulldozer, in excess of fourteen months after the alleged breach, will be of “slight probative value” as an indication of the market price at the time of the breach. Appellee Meuser is in the construction business and “deal[s] in bulldozers.” Meuser himself testified that he was “aware of the state of the economy in the bulldozer market” and since the time of the alleged breach in December, 1973, the market for bulldozers had declined due to a recession in the construction industry and high fuel prices. As indicated, he testified he made no effort to resell the goods for in excess of a year.

Appellant asserts error in the trial court’s granting appellee leave to amend his complaint on the day before the trial. Appellee’s original complaint sought recovery for the full purchase price under Ark. Stat. Ann. § 85-2-709 (1)(b) (Add. 1961), alleging unsuccessful reasonable efforts to resell the bulldozer. The permitted amendment was to the effect that the equipment had been sold by appellee and it sought recovery of damages based on the difference between the contract price and the resale price. Appellant claims that such an amendment made the day before the original trial date was prejudicial on the grounds that it was too late and changed the factual issues before the court. It is well settled that trial courts have broad discretion in the matter of permitting amendments to pleadings and the ruling allowing an amendment will be sustained absent a showing of manifest abuse of discretion which materially prejudices the complaining party. Ark. Stat. Ann. § 27-1160 (Supp. 1975). Burton v. Rice, 234 Ark. 354, 352 S.W. 2d 568 (1962); and Hogue v. Jennings, 252 Ark. 1009, 481 S.W. 2d 752 (1972). Further, § 85-2-709 (2), in pertinent part, provides “[T]he net proceeds of any such resale must be credited to the buyer.” In the case at bar we find no abuse of the trial court’s discretion nor that appellant’s rights were materially prejudiced.

Neither can we agree with appellant’s contention that the measure of damages provided by § 85-2-706 on resale of goods after breach by the buyer is not applicable here because of asserted noncompliance by appellee with the notice requirements. Subsection (3) of that statute requires “ [WJhere the resale is at private sale the seller must give the buyer reasonable notification of his intention to resell.” § 85-1-201 (26) in pertinent part reads “[A] person ‘receives’ a notice or notification when (a) it comes to his attention.” Appellee’s complaint alleged it had made reasonable efforts to resell the goods. In answer to appellant’s interrogatories, before the resale, appellee fully described his efforts to resell the bulldozer. Certainly, it must be said that the appellant received notice of appellee’s intention to resell the equipment.

Appellant also claims error in the trial court’s finding that cancellation of the contract was unjustified. Appellant asserts his cancellation of the contract was valid under Ark. Stat. Ann. § 85-2-504 (Add. 1961). Appellant’s argument turns upon a disputed issue of fact as to the actual date of delivery. The appellee adduced evidence that the delivery date was January 1, 1974. This was disputed by appellant whose evidence was to the effect that the delivery date was December 21, 1973. On appeal we are not concerned with determining where the preponderance of the evidence lies, but only whether there was any substantial evidence to support the verdict which, if supported by any substantial evidence, must be affirmed on appeal. Nuckols v. Flynn, 228 Ark. 1106, 312 S.W. 2d 444 (1958). In the case at bar, it was for the trial court, sitting as a jury, to resolve the conflicting versions as to the delivery date. There is ample substantial evidence to support the court’s finding.

The court’s award of $105 for incidental expenses incurred by appellee in servicing the bulldozer during the fourteen months from appellant’s breach of the contract until appellee sold the equipment is supported by substantial evidence. In fact, appellee’s testimony as to the necessity and the beneficial results of the servicing and maintenance of the equipment appears undisputed. As to the resale of the bulldozer, the appellee, admittedly, is in the construction business, sells bulldozers and was aware of the declining market. As previously indicated, as a matter of law, the long delay in the resale of the bulldozer by the appellee is commercially unreasonable. Consequently, the judgment is affirmed upon the condition that the award of $2,595 for actual damages is offered as a remittitur within the next seventeen days. Otherwise, the judgment is reversed and remanded.

Affirmed upon condition of remittitur.

We agree: Fogleman, Jones, and Byrd, JJ.


text:
    Georgie ROBIE et al v. Lanita BOLTON
    76-281
    541 S.W. 2d 310
    Opinion delivered October 4, 1976 (In Banc)

      Kenneth L. Schorr, for appellants.

      Daily, West, Core <2? Coffman, for appellee.
   George Rose Smith, Justice.

A Fort Smith ordinance, adopted in 1972, requires that initiative petitions be filed with the city clerk “at least 90 days before the regular municipal election” at which the proposed measure is to be voted upon. The appellants tendered such a petition to the appellee, as city clerk, some 64 days before the next election (to be held in November). Upon the appellee’s refusal to accept the petition the appellants brought this suit for a judgment declaring the tender to have been timely. This appeal is from a decree upholding the city clerk’s refusal to accept the petition.

The Constitution provides that the time for filing a municipal initiative petition “shall not be fixed at less than sixty days nor more than ninety days” before the election. Ark. Const., 1874, Amendment 7. The appellants argue that the Fort Smith ordinance is contrary to the Constitution, because, they say, the municipal requirement that the petition be filed “at least 90 days” before the election fixed the filing date one day earlier than the constitutional mandate that it be not “more than ninety days” before the election.

The trial court’s decision is right. What the Constitution contemplates is that the city fix the last permissible date for the filing of the petition. That is the only date that is involved, because the proponents of the measure are at liberty to file their petition before that date. Fine v. City of Van Buren, 237 Ark. 29, 371 S.W. 2d 132 (1963). Unquestionably the city of Fort Smith could have required that the petition be filed “at least 60 days” before the election, because that language is an accurate paraphrase of the constitutional reference to not less than 60 days. That being so, the city must be entitled to move the date forward to any point up to and including “at least 90 days” before the election, as in the ordinance actually in force. Otherwise the 30-day leeway allowed by the Constitution would be reduced to only 29 days. Hence the ordinance is valid.

Affirmed.


text:
    Elsie Jean RAWLS v. STATE of Arkansas
    CR 76-76
    541 S.W. 2d 298
    Opinion delivered October 4, 1976

      Harold L. Hall, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Terry Kirkpatrick, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In June of 1975 the appellant killed R. C. Edwards, with whom she was living, by shooting him some fourteen times with a rifle. She was charged by information with second-degree murder and with the commission of that felony by means of a firearm. The jury returned a verdict of guilty upon each count and imposed consecutive sentences of ten and five years.

The appellant makes a twofold constitutional attack upon the firearm statute. Ark. Stat. Ann. §§ 43-2336 et seq. (Supp. 1975). It is argued, without the citation of any supporting authority, that the statute denies the equal protection of the laws, because a similar enhanced punishment is not imposed for the commission of a homicide by some other means, as by the use of a knife or poison. Classification, however, is permissible if it has a rational basis and is reasonably related to the purpose of the statute. Dicks v. Naff, 255 Ark. 357, 500 S.W. 2d 350 (1973), cert. den., 415 U.S. 958 (1974). We think it goes without saying that in view of the ever-increasing number of felonies committed by means of firearms, the' legislature was justified in specifying an additional penalty for those offenses. Certainly the appellant has not met her burden of proving facts sufficient to overcome the presumption that the statute is valid.

Alternatively it is asserted, again without the citation of any supporting authority, that the appellant was placed in double jeopardy by the jury’s finding (a) that she was guilty of murder (actually committed with a firearm) and (b) that the sentence should be lengthened by five years under the firearm statute. We rejected a somewhat similar, though not identical, argument in Barnes v. State, 258 Ark. 565, 528 S.W. 2d 370 (1975).

Here, too, the argument is unsound. Unquestionably the legislature may adopt a graduated scale of offenses, as by making assault with a deadly weapon a more serious crime than simple assault. In like manner the legislature might have made second-degree murder committed by means of a firearm a more serious offense than simple second-degree murder. In substance the firearm statute achieves just that result, by allowing the jury to find the accused guilty of simple second-degree murder and then to enhance the punishment upon a further finding that the crime was committed by means of a firearm. Inasmuch as the legislature might have reached the same goal by taking either of two routes, it cannot be said that one solution to the problem is constitutional and the other not.

A secondary contention is. that the trial court was wrong in refusing to give credit upon the sentence for the appellant’s pretrial confinement. In denying counsel’s request the trial judge remarked: “They offered her five years, and she wouldn’t take it.” We do not agree with that reasoning, but the court’s denial of the requested credit was nevertheless justified. The record contains an affidavit of indigency as a basis for the appointment of counsel, but we find no proof that the appellant’s failure to make bond was due to her indigency. In that identical situation we have sustained the trial court’s denial of jail time. Graves v. State, 258 Ark. 477, 527 S.W. 2d 611 (1975).

Affirmed.

We agree. Harris, C.J., and Fogleman and Jones, JJ.


text:
    Stanley Ray HIGGINBOTHAM, Alias REYNOLDS v. STATE of Arkansas
    CR 76-118
    541 S.W. 2d 303
    Opinion delivered October 4, 1976

      James C. Luker, for appellant.

      Jim Guy Tucker, Atty. Gen., by. Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Upon convictions for burglary and grand larceny the appellant Higginbotham received two five-year sentences, to run consecutively. For reversal he questions the sufficiency of the State’s proof, the admissibility of a statement made by him, and the trial court’s refusal to submit to the jury the lesser offense of petit larceny.

First, the State’s proof is amply sufficient to support the convictions. On the morning of December 19, 1975, the prosecuting witness, Steve Scobbee, discovered that a pistol and a shotgun were missing from a gun rack in his home. A side door was damaged, as if it had been hit or kicked. Scobbee had known Higginbotham at work for about a week and considered him to be a friend. At some time before the burglary Scobbee’s son had shown Scobbee, in Higginbotham’s presence, that the door in question was improperly hung and could be opened simply by means of a blow.

Upon learning that the two guns were missing Scobbee notified the sheriff’s office and then went in search of Higginbotham. When the two men saw each other they stopped their cars and alighted. Higginbotham, after saying, “Steve, I want to give you your guns back,” took the two missing guns from his car and handed them to Scobbee. Higginbotham also said: “You know I just got out of the penitentiary, and I can’t afford any more trouble. Please don’t call the law on me.” A taxi driver testified that at about 1:00 o’clock on the preceding afternoon he had picked up Higginbotham, as a fare, and had driven him to the Scobbee residence, about five miles out from Wynne. The witness said that Higginbotham knocked on the side door. The witness did not know whether anyone answered the knock, but he did see Higginbotham come out of the house with a pistol, which he made no effort to conceal. On the way back to Wynne, Higginbotham introduced himself and mentioned his employer.

In questioning the sufficiency of the evidence counsel argue that the State failed to prove any criminal intent, because Higginbotham entered the house in the daytime, in the presence of the taxi driver, and voluntarily returned the guns the next day. On the other hand, the jury could have found that Higginbotham forcibly entered the house without permission, took the guns without the owner’s consent, and returned them in the hope of avoiding prosecution. Under our decisions the jury could infer criminal intent from proof that the house had been entered, that the guns had been taken, and that they were in Higginbotham’s possession a short time later, without sufficient explanation. Taylor v. State, 254 Ark. 620, 495 S.W. 2d 532 (1973); Johnson v. State, 190 Ark. 979, 82 S.W. 2d 521 (1935). If the State had to offer additional affirmative proof of criminal intent there would seldom be a conviction for burglary or grand larceny.

Secondly, it is argued that Higginbotham’s statement that he had just gotten out of the penitentiary and couldn’t afford any more trouble was inadmissible, because it implied Higginbotham’s commission of some other offense. Even so, the statement was admissible under the rule that proof of another offense is admissible when it tends to show motive. Shuffield v. State, 120 Ark. 458, 179 S.W. 650 (1915). Proof of Higginbotham’s motive for returning the guns tended to rebut his contention that the original taking was without criminal intent.

It is also argued that after Scobbee testified about the statement in question defense counsel should have been allowed to cross-examine him outside the jury’s presence. In his brief counsel argues that a searching cross-examination might have uncovered grounds for exclusion of the statement. We cannot say that the trial judge abused his discretion in refusing to interrupt the trial for such a fishing expedition. Counsel of course had interviewed his own client before the trial, and his cross-examination of Scobbee shows plainly that he had also interviewed Scobbee before the trial. Thus he had had an opportunity to learn all about the dialogue from the two participants.

Thirdly, it is insisted that the court should have submitted the lesser offense of petit larceny to the jury. A theft is petit larceny if the value of the property taken does not exceed $35.00. Ark. Stat. Ann. § 41-3907 (Repl. 1964). The question is whether the proof would have supported such a finding in this case. Hall v. State, 242 Ark. 201, 412 S.W. 2d 603 (1967).

Scobbee was the only witness as to the value of the guns. He said that four months before the trial he had acquired the .22-caliber 9-shot high standard pistol by trading for it a brand-new pistol for which he had paid $109.00. He described the shotgun as an antique Cannon breach gun, more than a hundred years old. “There weren’t too many guns like that made.” He had paid $35.00 for it some two years earlier and had refused an offer of $150 cash for the gun about eight months before the trial. Scobbee owned two other shotguns and said that once in a while he bought, sold, and traded in weapons.

When the evidence shows conclusively that the value of the stolen property exceeds $35, as in the theft of more than that amount in cash or of property worth a great deal more, such as a new automobile, the lesser offense obviously need not be submitted. At the other extreme, when there are conflicting estimates of value both above and below $35, the lesser offense obviously must be submitted. Neither extreme is presented here.

We have not had occasion to consider cases falling between the two extremes, but decisions in other jurisdictions have emphasized various considerations of importance. Of course the fundamental rule is that an instruction on petit larceny need not be given if the jury cannot reasonably find from the evidence that the value of the property is below that fixed for grand larceny. Three enlightening Kentucky cases arose under a statute classifying as grand larceny the theft of chickens worth $2.00 or more. In Bell v. Commonwealth, 222 Ky. 89, 300 S.W. 365 (1927), one witness valued the two stolen chickens at $25.00. The owner valued them at $1.00 apiece. The court held that the refusal of a petit larceny instruction was not error, because there was no testimony to the contrary. In Henson v. Commonwealth, 242 Ky. 90, 45 S.W. 2d 855 (1932), the owner testified that the 13 stolen chickens were worth more than $2.00, and there was no testimony to the contrary. The court held that there was no reasonable room for a difference of opinion; so it was not necessary or proper to instruct on petit larceny.

On the other hand, in Taylor v. Commonwealth, 240 Ky. 286, 42 S.W. 2d 309 (1931), the owner, in fixing the value of a hen and nine chicks at $2.50, relied in part upon the price of chicks at a hatchery — 15 cents each. The court held that evidence to be vague and unsatisfactory, adding that the jury might be familiar with values from personal observation and common knowledge. Hence the lesser offense should have been submitted.

In State v. Enochs, 339 Mo. 953, 98 S.W. 2d 685 (1936), the minimum value for grand larceny was $30.00. The owner of the three stolen items, which included a wrecking bar worth “about 50 cents,” fixed the total value at $30.25. The court found that figure to be so close to the minimum that the issue of petit larceny should have been submitted. The leeway above the minimum was much greater in Gray v. Commonwealth, 288 Ky. 25, 155 S.W. 2d 444 (1941). There the minimum value for grand larceny was $20. The owner of the stolen welding torch and attachments testified that they had cost $140 and were worth more than $20. The court observed that it would have been better if the prosecution had established the value with more certainty. Nevertheless, the court sustained the trial court’s refusal to submit petit larceny, because “we do not think there could be any question” that the stolen property was of a value of $20 or more.

In the case at bar we uphold the trial judge’s refusal to submit the issue of petit larceny. No one contradicted Scobbee’s testimony. He fixed the cost of the two guns at $144.00, far above the minimum of $35.00. He indicated that he considered the shotgun, for which he had paid $35.00, to be worth more than $150.00, increasing the total estimate to $259.00. He had some expertise in the matter, whereas it is doubtful if the average juror would have any basis for estimating the value of an antique shotgun. Finally, the trial judge had the advantage of observing Scobbee as he testified and of seeing the guns as they were introduced in evidence. In denying the requested instruction on petit larceny the judge stated that the jury, to find that the value of the property did not exceed $35.00, “would have to arbitrarily disregard the evidence in the case.” That statement seems to us to be a fair summation of the situation presented by the proof.

Affirmed.

We agree. Harris, C.J., and Fogleman and Jones, JJ.