text:
    Charles Etta COX v. STATE of Arkansas
    5802
    491 S.W. 2d 802
    Opinion delivered March 12, 1973
    [Rehearing denied April 16, 1973.]

      R. W. Laster, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Frank B. Newell, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

On September 1, 1970, appellant, Charles Etta Cox, was arrested in Grant County, Arkansas, and charged by Information with Grand Larceny. Preceding her trial on February 28, 1972, a hearing was conducted on her motion, earlier filed, to suppress certain evidence. Appellant called one witness, Trooper James Hale for this hearing, although the motion had raised issues relating to the absence of a search warrant, the absence of probable cause to justify the arrest, the unreasonableness of the search, and the authority of the officers to seize the property which was involved. The court denied the motion, and the case proceeded to trial; at the conclusion of the evidence, the jury retired and found appellant guilty, fixing her punishment at ten years confinement in the Arkansas Department of Correction. From the judgment so entered, appellant brings this appeal. Trooper Hale, in chambers, testified that he received a radio report from Deputy Sheriff A. J. Pitts concerning suspected shoplifters, the deputy giving a description of the occupants of the car, and the automobile in which they were riding. The officer stopped a 1956 Mercury which conformed to the description given and which was occupied by three black female adults and two children, on Highway 270 in Grant County, travel-ling toward Pine Bluff. Two bags were in sight, on the floorboard on the right hand side of the front seat, and were open at the top, disclosing merchandise, including clothing. The car was being operated by appellant and the trooper directed that it be driven back to Sheridan. The bags were taken out of the car and subsequently, after acquiring a search warrant, the car was thoroughly searched, but no additional contraband found.

The property taken from the car was offered as exhibits. The court asked the trooper if the bags described were in open view to him, to which Hale responded “They were. They could have been seen from the outside of the vehicle.” The motion to suppress was denied. Hale subsequently testified that the car was stopped between 5:00 and 6:00 P.M. and that the automobile was being driven by appellant. An older woman was sitting in the front with her and a younger woman was in the back seat with the children. After arriving back at Sheridan, Mrs. Olga Winkle, the owner of the store, identified the merchandise as coming from her store. She testified that the value of the property was One Hundred and Four Dollars and a few cents. Barbara Pruitt, employed at the store by Mrs. Winkle, testified that on September 1 she was the only clerk in the store, had several customers, and three black women came in, “mingled around in the store”, then all separated, going to different places in the store, and, according to the witness, stayed quite a while. She identified appellant as one of the persons in the store. She said that she asked them several times if she could help and “when they finally left J got to checking around and found a box, you know, that had been merchandise, had been taken out of it and the box thrown under the counter.” This box had contained lingerie. She said the women made no purchases.

Barbara Bradshaw operates a beauty shop across the street and she stated that Mrs. Winkle was in the shop having her hair fixed. She noticed a red and white 1-955 or 1956 Mercury stopped in the front, noticing it because a small child kept honking the horn. Subsequently, around 5:00 or 6:00 P.M. she saw the same automobile parked in front of the store. Mrs. Winkle testified that, while sitting in the beauty shop, she observed the automobile and saw three black women get out of the car and go into her store. Subsequently, the persons returned and she saw appellant, who appeared to be carrying a shopping bag, get into the car and drive off. Upon returning to her establishment, she was shown the empty box which had contained merchandise just received. Thereupon, she called Deputy Sheriff Pitts and described the car to him. Later in the afternoon, she identified appellant as the person who got into the car while she (the witness) was in the beauty shop, and she identified appellant at the trial as the same person. Mrs. Winkle stated that when she arrived in the evening, the car was being unloaded and the officers brought in pillow cases full of merchandise and a lot of merchandise fell out of one of the containers.

Deputy Pitts, relative to receiving information, testified:

“I believe she called in by phone and told me what had happened about a shop lifting. She thought she had been shop lifted over there and she had information the type car and occupied by people and described them to me and I in turn gave it to Trooper Hale to be on the lookout for this vehicle.”

The deputy stated that when the car was driven back to the courthouse, permission was sought to look in the vehicle and they were told it was all right. He said tags were still on the merchandise. Sheriff Lewis Shirron also testified that the merchandise was new,_ still had the tags, sizes, etc., and he identified appellant as being present. When the merchandise was identified by the owner, appellant was arrested and subsequently charged with grand larceny.

It is first argued that appellant’s motion to suppress should have been granted, appellant contending that the evidence was illegally seized, it being stated that she was not under arrest at the time and that there was no search warrant when the property was taken from the car. Appellant asserts that the court apparently relied upon what is commonly referred to as the “plain view rule”, but that this rule cannot be relied upon in the present instance. Appellant cites Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, as pointing out that the use of “plain view” as a descriptive phrase is not coterminous with its use as a legal concept and that before this doctrine comes into effect, there must be a justifiable prior intrusion. Appellant argues that though the visual observation was legitimate, it did not justify the intrusion itself, but only furnished probable cause for the issuance of a search warrant. Actually, in Coolidge, the court held there were no exigent circumstances justifying the warrantless search of a car there involved, and it was pointed out that the “plain view” theory did not apply where the police had ample opportunity to obtain a valid warrant, knew in advance the car’s description and location, had every intention of seizing it when they entered upon the petitioner’s property, and no contraband or dangerous objects were involved. A contrary result was reached in Ker v. California, 374 U.S. 23, 10 L. Ed. 2d 726; Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419; and Warden v. Hayden, 387 U.S. 294, 18 L. Ed. 2d 782. In these cases, a warrantless search and seizure of evidence was approved because of the exigencies of the situation. In Chambers, a warrantless search of a car was made, resulting in a seizure of evidence. This car at the time, had been taken to a police station, but the court noted that it could have been searched on the spot where it was stopped since | there was probable cause to search and it was a fleeting! target for a search. The court added that the probable-¡ cause factor was still in existence at the station house and' it was commented that the mobility of the car was still: present; the court said that in terms of practical conse-j quences, there was little to choose between an immediate j search without a warrant, and the car’s immobilization until a warrant was obtained. “Given probable cause to search, either course is reasonable under the Fourth Amendment.” In this opinion, the court also stated:

“In terms of the circumstances justifying a warrant-less search the Court has long distinguished between an automobile and a home or office. In Carroll v. United States, 267 U.S. 132 (1925), the issue was the admissibility in evidence of contraband liquor seized in a warrantless search of a car on the highway. After surveying the law from the time of the adoption of the Fourth Amendment onward, the Court' held that automobiles and other conveyances may be searched without a warrant in circumstances that' would not justify the search without a warrant: of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize.” .!

However, in Ker the court upheld a warrantless search and seizure of evidence because of exigent circumstances at a home; likewise in Warden, the court upheld an entry into a suspect’s house and a subsequent warrantless search because “the exigencies of the situation made the course imperative.”

What are the circumstances in the case before us? Officer Hale had received a radio communication from a deputy sheriff of Grant County that merchandise was suspected to have been taken at Olga’s Fabrics and Fashions Store, and the suspects were described, along with a description of the automobile. The officer observed such a car, stopped it, saw the sacks or pillow cases on the front floorboard, partly open, and articles of merchandise and wearing apparel were observed by the officer while standing outside the vehicle. Certainly this is a matter of evidence appearing in “plain view”; likewise, it would appear, with the information that Hale had received, that he had justification for stopping this automobile and upon observing the merchandise on the floorboard, ordering the car driven back to Sheridan. To first have obtained a warrant would mean, of course, that the occupants of the car could have driven on, with full opportunity to dispose of the merchandise in the vehicle. In other words, there was complete justification for an intrusion (considering the detention of the car as an intrusion). These were exigent circumstances requiring instantaneous action to preserve the existence of the evidence sought to be seized.

Appellant argues that the primary essential element in a warrantless search and seizure is that such a search is incidental to a lawful arrest; that appellant had not been arrested, was not arrested until after the seizure of the articles, and such seizure was accordingly unlawful. We do not agree with this argument. In Carroll v. United States, supra, the court stated “The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.” We have already stated that Hale was justified in the intrusion, and he certainly had reasonable cause to believe that the contents of the automobile offended the law.

It is next asserted that appellant’s motion for directed verdict should have been granted at the close of the State’s testimony as there was insufficient evidence to convict her of the crime of grand larceny. Appellant correctly points out that this court has held that where circumstantial evidence alone is relied upon to establish guilt of one charged with a crime, such evidence must exclude every other reasonable hypothesis than the guilt of the accused. Appellant then states that the most logical “reasonable hypothesis” in the case before us is that either or both of the women with Charles Etta Cox stole the merchandise, since both of them pleaded guilty. It is argued that the containers holding the merchandise were on the floorboard near the right hand front seat of the car and there is no testimony that the bags were in the custody of, or under the control of, the appellant. It is true that no witness saw appellant take the merchandise, but wé do not agree that it can be said that Charles Etta Cox did not have possession. Appellant certainly was in control of the automobile since she was driving it; the merchandise was in the automobile. It will be remembered also, that Mrs. Winkle, who was having her hair fixed in the beauty shop, testified that she observed appellant carrying what appeared to be a shopping bag, and saw her get into the car and drive off. It is stated by counsel for the State that research has not disclosed any Arkansas cases dealing specifically with stolen property found in vehicles, but authority from other states is cited, and the rationale appears to be entirely logical. In Lawson v. State, 82 So. 2d 812, the 2nd Division Court of Appeals of Alabama, in affirming a conviction of grand larceny, stated:

“Possession is not limited to actual manual control upon or about the person. If under one’s power and dominion the thing is possessed. That the appellant had knowledge of the presence of the stolen groceries can reasonably be inferred from his possession and control of the truck. Certainly, it was for the jury to so determine in the absence of any evidence by the appellant tending to justify his technical possession of the groceries.”

In Mason v. State, 262 A. 2d 576 (1970), the Court of Special Appeals of Maryland sustained the conviction of one who was driving a car containing stolen license plates. Two other men were also in the car at the time of the arrest. The court stated that appellant’s presence in, and driving of the automobile, were sufficient to raise the inference that he was a thief and the court then said. “Appellant in no way refuted the inference and his conviction therefore must stand.” Of course, in Arkansas, the possession of recently stolen property, if not explained to the satisfaction of the jury, is sufficient to sustain a conviction of larceny. Hammond v. State, 232 Ark. 692, 340 S. W. 2d 280. To paraphrase the language in the cases cited, it certainly can reasonably be inferred from appellant’s possession and control of the automobile, that she had knowledge of the presence of the stolen merchandise (which after all was only two or three feet away from her). Let it be remembered that appellant in no way refuted the inference that she was in possession of the property. As long ago as 1900, in the case of Lackey v. State, 67 Ark. 416, 55 S.W. 213, in an opinion by Justice Riddick, this court stated that the doctrine of reasonable doubt applies to the general issue of guilty and not guilty, but that it does not apply to each item of testimony or to each circumstance tending to show the guilt of the defendant. The proof on behalf of the State was ample to make a jury question, and it was the function of that body to pass upon the matter.

Finally, it is asserted that the court committed error in refusing to give appellant’s requested Instructions No. 1 and No. 2. The first told the jury that the defendant was presumed to be innocent throughout the trial and that the State must prove her guilt beyond a reasonable doubt. The second questioned instruction defined reasonable doubt. We find no merit in either contention since the subject matter in both instructions was clearly covered, and even more comprehensively, by the court in other instructions given to the jury.

On the whole case, finding no error, the judgment is affirmed.

It is so ordered.

      These were pillow cases.

      The merchandise was subsequently returned to Mrs. Winkle and placed in stock.

      This particular box contained a negligee set valued at $13.&.j.

      Articles taken included a negligee set, a suit, two dresses, bras and panties.

      This court has relied on the rationale of Carroll in numerous cases. For instance, see Tygart v. State, 248 Ark. 125, 451 S.W. 2d 225 (1970), cert. denied, 400 U.S. 807, 27 L. Ed. 2d 36; Moore, et al v. State, 244 Ark. 1197, 429 S.W. 2d 122 (1968), cert. denied, 393 U.S. 1063, 21 L. Ed. 2d 705 (1968); and Burke v. State, 235 Ark. 882, 362 S.W. 2d 695 (1962).

      Appellant herself twice pleaded guilty. On September 24, 1970, she entered a plea and was sentenced to a term of ten years in the penitentiary, with seven years suspended. Thereafter, a motion was filed by her then attorney to set aside her plea of guilty because she was not aware of the severe nature of the crime to which she pleaded guilty and the court granted this motion. On January 12, 1971, she again entered a plea of guilty and received the same sentence. Thereafter, her present attorney filed a motion to vacate the sentence under Criminal Procedure Rule I, alleging that her rights under the Federal and State Constitutions had been violated and asking that her sentence be vacated and the Circuit Court granted that motion. The case thereafter proceeded to trial on February 28, 1972.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    John H. REEVES et ux v. METROPOLITAN TRUST COMPANY
    73-71
    498 S.W. 2d 2
    Opinion delivered July 23, 1973
    [Rehearing denied September 4, 1973.]

      Tanner & Wallace, for appellants.

      H. B. Stubblefield, for appellee.
   George Rose Smith, Justice.

This suit to quiet title, brought by the appellee, presents a boundary line dispute between the appellee, a corporation holding record title to the area in question, and the appellants, a married couple asserting title by adverse possession. The chancellor found the issues in favor of the appellee. We sustain his decision as to that part of the tract lying outside a hedge planted by the appellants in 1952, but we find his decision to be against the weight of the evidence as to that part of the tract lying inside the hedge.

The parties own adjoining parcels in the Park Hill Addition to North Little Rock. In 1952 Mr. and Mrs. Reeves bought their home, which occupies a lot lying diagonally with the compass and fronting on Skyline Drive to the northeast. The appellee’s property, lying to the east and also fronting on Skyline Drive, has been vacant all along.

According to Reeves, three of his four corners had been surveyed and marked by pins set in concrete, in connection with litigation pending between neighboring landowners. The fourth corner, being the easternmost corner touching Skyline Drive, was not marked by a pin; but Reeves found a car axle, driven into the ground, which he took to be the true comer. Reeves planted a hedge from that point to the southernmost corner of his lot and took possession by maintaining a lawn between the hedge and his house. The car axle was actually about eleven feet east of the true corner, so that Reeves in fact took possession of a triangular area, eleven feet wide at the street, which was owned by Metropolitan.

The appellants’ proof of adverse possession for twenty years is virtually undisputed. Metropolitan’s principal argument is that since its land was unenclosed and unimproved, the Reeveses’ possession should not be deemed to have been adverse. The cases cited stem from our decision in Boullioun v. Constantine, 186 Ark. 625, 54 S.W. 2d 986 (1932). That line of cases, however, has to do with easements, such as those arising from pedestrian or vehicular travel across vacant lots. Those decisions have no bearing upon the adverse possession of Mr. and Mrs. Reeves, who enclosed and possessed the tract for twenty years in the good faith belief that they owned it. We find no merit in Metropolitan’s contention that it followed a practice of allowing its neighbors to use its land permissively, for no notice of any such practice was brought home to the appellants. Nor does it matter that the encroachment was not readily visible from the street, for it was Metropolitan’s duty to keep itself informed with respect to adverse occupancy of its property.

The second phase of the case involves a dog pen lying outside the hedge. In 1961 the city passed a dog leash law. Reeves built an enclosed pen outside the hedge, because he had to have a place to keep his dogs. He admits candidly that he knew the land did not belong to him. Both he and his wife testified that they did not mean to claim any land that they did not own. In the circumstances their use of their neighbor’s land was not adverse and did not ripen into title. Conway v. Shuck, 203 Ark. 559, 157 S.W. 2d 777 (1942); Shirey v. Whitlow, 80 Ark. 444, 97 S.W. 444 (1906).

The decree is affirmed in part and reversed in part, and since the title to land is involved, the cause is remanded for the entry of a decree conforming to this opinion.


author: Lyle Brown, Justice. John A. Fogleman, Justice,

text:
    CORN INSURANCE AGENCY, Inc. v. DARBY BUILDERS, Inc. et al
    73-72
    497 S.W. 2d 260
    Opinion delivered July 23, 1973

      Max C. Mehlburger, for appellant.

      Catlett if Henderson, for appellees.
   Lyle Brown, Justice.

The chancellor held that appellant, Corn Insurance Agency, Inc., had no standing to prevent an adjoining landowner, one of the appellees, from amending the latter’s bill of assurance so as to materially change the use by the adjoining landowner of an area described on its plat as “utility and greenery easements”. The single point advanced for reversal is; “The chancellor erred in holding that an easement dedicated to the public by plat and bill of assurance inures only to the benefit of owners of the platted property”.

In 1962 appellant Corn bought a five acre tract fronting Chicot Road on the outskirts of Little Rock. On the front part a shopping center was constructed; on the rear portion facilities were established for a motor trailer court with a capacity for some forty trailers. In 1964 R. M. Wilson, one of the appellees, having acquired a tract adjoining the trailer court, filed a plat and bill of assurance of Vernon Place, consisting of 46 lots. Lots one through fifteen adjoined the rear portion of the unplatted Corn tract upon which mobile trailers were placed up to the boundary line between Corn and Wilson. There was designated on Wilson’s plat a buffer or screening strip designated as “greenery easement”, thus creating a buffer between the trailer courts and the residential lots in Vernon Place. The bill of assurance recited that no buildings or paved driveways were to be built within the area of any of the easements shown on the plat:

With reference to the easements the bill of assurance provides:

Owners of the lots in this subdivision shall take their titles subject to the rights of the public utilities and the public.
The filing of this Bill of Assurance and plat for record in the office of the Circuit Clerk and Ex-Officio Recorder of Pulaski County shall be a valid and complete delivery and dedication of the streets and easements shown on the said plat.

With reference to amendments to the bill of assurance it was provided therein that such amendments required the written consent of the owners of sixty percent of the lots.

In 1972 Wilson, in anticipation of building apartments on the premises, decided he needed the easement area for parking. The easement dedication was amended to provide that the easement area could be paved for purposes of parking. That action resulted in the filing of this suit by Corn to enjoin the paving project. It is undisputed that Corn owns no property within the subdivision, Wilson Place. It is Corn’s contention that appellee Wilson was attempting “to amend out of existence an unequivocal dedication to the public of a greenery easement”. It is also Corn’s contention that the creation of the easement vested in him and his mobile home tenants the vested right to enjoy the natural biota created by the greenery easement. Wilson and his associates, appellees, responded that the right to enforce restrictions in the plat and bill of assurance rests upon a contractual basis and is limited to those owning lands subject to the bill of assurance.

In their briefs the parties have cited a number of cases from our court which they contend shed light on the problem before us. Wood v. City of El Dorado, 237 Ark. 681, 375 S.W. 2d 363 (1964); Mountain View v. Lackey, 225 Ark. 1, 278 S.W. 2d 653 (1955); Frauenthal v. Slaten, 91 Ark. 350, 121 S.W. 395 (1909); Brown v. Land, Inc., 236 Ark. 15, 364 S.W. 2d 659 (1963); Rickman et al v. Mobbs et ux, 253 Ark. 969, 490 S.W. 2d 129.

We list the aforementioned cases to make it clear that we are not, by our decision in the instant case, doing violence to the holdings in any of the cited cases. We have concluded that the cited cases are not substantially helpful to the problem at hand. That is because of the differences in facts, and more particularly because none of those cases deal with a buffer zone designated on the plat as a greenery easement. Because of the sum total of the following factors we conclude that the case must be affirmed: (1) The easement for the buffer zone on appellee’s property was established after Corn acquired its property, so no reliance was placed on that easement in buying or developing the Corn property. (2) The buffer was established substantially, if not exclusively, for the benefit of the property owners in the Wilson subdivision. (3) We doubt that Corn has any standing to challenge the right of the property owners in the Wilson subdivision to amend their bill of assurance to provide for paving the easement. (4) The suit was not brought as a class action for the benefit of the public. (5) The disputed easement was not established as a thoroughfare; thus the area cannot be likened unto a street or alley. (6) The easement area is not immediately accessible to the public.

We must also dispose of a motion filed by two of the three appellants. After this appeal was lodged, appellants Cook and Fonzo filed a motion stating that they had no desire to pursue the appeal. Their motion to dismiss as to them is granted, effective as of the date of their motion, May 25, 1973.

Affirmed.

Byrd, J., disqualified and not participating.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I dissent because I do not think that an easement dedicated to the public by plat and bill of assurance inures only to the benefit of owners of property platted in the plat showing the easement. I feel that an adjoining landowner may have rights in the easement.


author: John A. Fogleman, Justice.

text:
    Danny REYNOLDS v. STATE of Arkansas
    CR 73-48
    497 S.W. 2d 275
    Opinion delivered July 23, 1973

      Sam Sexton, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   John A. Fogleman, Justice.

On September 5, 1972, Danny Reynolds was found guilty of manslaughter of Willie Highfill on January 7, 1972. He was sentenced to two years in the penitentiary on the basis of the jury’s fixing that term when it found him guilty of voluntary manslaughter on a trial on a charge of first degree murder. We find reversible error in the circuit judge’s failure to exclude a witness, Paul Highfill, from the courtroom during the trial.

Paul Highfill was a brother of the victim, and was present at the time and place where Willie Highfill was mortally wounded. He was a participant in what seems to have been a running quarrel between Reynolds and his companions and three Highfill brothers. As a matter of fact, the conflict appeared to have had its inception in an encounter climaxed by fisticuffs between appellant and Paul Highfill. He had given a statement about the occurrence to Lt. Troy Dale Oliver, the investigating state police officer. He was subpoenaed as a witness both by the state and the defendant. The rule for sequestration of witnesses was invoked by appellant. Paul High-fill had been sworn as a witness. The prosecution asked that all the Highfill boys be permitted to sit at the counsel table, but the trial judge asked whether this one would be a witness. Upon being told that he would, the judge then inquired whether the prosecuting attorney felt like he needed the assistance of a member of the victim’s family, and was told that the state would be prejudiced without the assistance of the party “who followed this throughout.” The court then granted permission for this one member of the family to sit with the prosecuting attorney, over appellant’s continued objection to relaxation of the rule. It appears that this witness was in the courtroom throughout the trial. He was not called as a witness by the state, but was called by appellant. He first admitted having made a statement to the state police officer on the day after the shooting, which effectually absolved appellant and incriminated someone else as the one who fired the shot which proved fatal to his brother. After cross-examination, he expressed doubt about having made the statement, and stated that, in any event, he did not feel the same way when he was testifying.

Arkansas Statutes Annotated § 43-2021 (Repl. 1964) states the rule in mandatory language. Not only does it require that any witness be excluded at the request of an accused or his attorney, but it states that the purpose of the exclusion is that the excluded witness may not hear the testimony of other witnesses. Only recently, we recognized that the legislature had intended by Act 243 of 1955 to eliminate the discretion theretofore vested in the trial court in criminal cases. Vaughn v. State, 252 Ark. 505, 479 S.W. 2d 873. True it is, we recognized that there were cases in which a denial of the request might not be prejudicial. But, we must presume that error is prejudicial unless its absence is shown or is manifest from the record. Osborne v. State, 237 Ark. 7, 170; 371 S.W. 2d 518. The only contention advanced by the state in arguing that the error was not prejudicial is that any error was cured by the state’s failure to call the witness. We cannot follow this argument. Even though the trial judge refused to consider Paul Highfill as a hostile witness when called by the defendant, he had been involved in combat with the appellant on the evening his brother was killed, his presence in the courtroom to assist the prosecuting attorney was certainly indicative of hostility toward appellant’s defense, his testimony was certainly not as advantageous to the accused as :.¿ght have been anticipated from the statement he had made to the police and his vacillation on the giving of that statement came after he had heard every witness called by the state and many of those called by the defense. His antagonism toward appellant on the evening his brother was killed seems to have been a factor in bringing on the fatal encounter. We cannot say with any assurance that this error was not prejudicial and all appearances are that it was.

While this is the only reversible error we find, we will comment on those matters asserted as error by appellant which may possibly arise on a new trial. One of these involves a proposed jury instruction offered by appellant relating to the required corroboration of the testimony of an accomplice. The circuit judge gave an apparently correct instruction submitting the question whether Franklin Dale Reed and Albert Reed, companions of appellant on the night of the fatal shooting, who testified at the behest of the state, were his accomplices in the alleged crime. The instruction offered by appellant would have declared these two witnesses to be accomplices as a matter of law. Detailing the testimony would serve no useful purpose. Suffice it to say that there was substantial, but not conclusive, evidence to show that these two brothers were accomplices. Other testimony would justify a finding that they were peacemakers, or were at least trying to dissuade appellant from carrying out an intention to kill one or more of the Highfills. There was no error in refusing the instruction offered. Appellant argues, however, that the instruction given did not advise the jury that evidence required to corroborate the testimony of an accomplice must be independent of the evidence given by the accomplice. Although the instruction given required corroboration by “other evidence” tending to connect the defendant with the crime and followed the language of Ark. Stat. Ann. § 43-2116 (Repl. 1964), we think the specific statement that the “other evidence” be independent of that given by the accomplice not only would be correct, but would tell the jury with much more desirable clarity just what our law requires in this respect. Appellant did make an appropriate objection pointing out his contention as to the deficiency in the court’s instruction in this respect.

Appellant also argues that he did not receive a fair trial. His principal argument.on this ground is that pretrial statements made by Gary and Paul Highfill should have been admitted into evidence, not to impeach their testimony, but as direct, affirmative, substantive evidence. Appellant cited no authority for this argument and this seems contrary to our law. Prior statements, inconsistent with the testimony of a witness, are admissible for impeachment purposes only. Eddington v. State, 225 Ark. 929, 286 S.W. 2d 473; Comer v. State, 222 Ark. 156, 257 S.W. 2d 564.

We find no merit in appellant’s contention that testimony relating his spontaneous, unsolicited statement, “Get me a lawyer. I’m in real trouble,’’ addressed to his mother at the time of his arrest, was inadmissible because he was given no warning or explanation of his rights. See Haire v. State, 245 Ark. 293, 432 S.W. 2d 828; Bivens v. State, 242 Ark. 362, 413 S.W. 2d 653. Furthermore, we ñnd no prejudicial error in the introduction of a rifle into evidence over the appellant’s, objection.

For the reason indicated, the judgment is reversed and the cause remanded for a new trial.


author: John A. Fogleman, Justice. Conley Byrd, Justice,

text:
    James STONE v. STATE of Arkansas
    CR 73-54
    498 S.W. 2d 634
    Opinion delivered July 23, 1973
    [Rehearing denied September 10, 1973.]

      Harold L. Hall, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   John A. Fogleman, Justice.

The record in this case is stipulated. Appellant states (and the state agrees) that the sole issue on this appeal is the constitutionality of Section 1 of Act 68 of 1972. Upon a search of the person of appellant incidental to his arrest, 1200 milligrams of heroin were seized. The sole point relied upon for reversal by appellant was stated thus:

Section 1 of Act 68 of 1972 is unconstitutional in that it denied the defendant due process by permitting the jury to make a presumption upon, a fact not in evidence and that it violated his Fifth Amendment privilege against self-incrimination.

Appellant asks that his conviction be reversed and dismissed on the ground that he was convicted under an act that is unconstitutional under the Constitution of the United States.

The section of the statute in question reads:

Possession by any person of a quantity of Heroin in excess of 100 milligrams shall create a rebuttable presumption that such person possesses such Heroin with intent to deliver, provided however, the presumption provided for herein may be overcome by the submission of evidence sufficient to create a reasonable doubt that the person charged possessed Heroin with intent to deliver in violation of the law.

Appellant admits that a statutory inference may be valid if there is a valid connection between the fact proved and the ultimate fact to be established. Appellant’s principal reliance is placed upon Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969).

In approaching every question pertaining to the constitutionality of an act of the legislative branch, the judiciary must always keep certain basic principles in mind, all of which are essential to the welfare of the checks and balances provided by the American tripartite system of government. The first of these is that the legislature’s power is limited only by the state and federal constitutions. Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W. 2d 85; Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279; McArthur v. Smallwood, 225 Ark. 328, 281 S.W. 2d 428; Gipson v. Ingram, 215 Ark. 812, 223 S.W. 2d 595. The next is that a presumption of constitutionality attends every such act. Redding v. State, 254 Ark. 317, 493 S.W. 2d 116; Bush v. Martineau, 174 Ark. 214, 295 S.W. 9. All doubt must be'resolved in favor of constitutionality. Red-ding v. State, supra; Bush v. Martineau, supra. Another principle is that if it is possible for the courts to so construe an act that it will meet the test of constitutionality, they not only may, but should and will, do so. Davis v. Schimmel, 252 Ark. 1201, 482 S.W. 2d 785; McLeod v. Santa Fe Transportation Co., 205 Ark. 225, 168 S.W. 2d 413. Another way of stating this elementary rule is that every reasonable construction must be resorted to in order to save the statute from unconstitutionality. Bush v. Martineau, supra. See also Redding v. State, supra.

The act can be construed so it does not run afoul of constitutional inhibitions. At the outset it should be noted that, unlike most of such statutes which have fallen bn the test of constitutionálity by the theory upon which appellant’s argument is based, our statute does not base the statutory presumption (or more properly inference, as will be presently shown) upon mere possession of the heroin. The quantity possessed is the criterion.

A presumption of law is not involved, and we are, definitely, not dealing with a conclusive presumption. The words “rebuttable presumption” are of sufficient flexibility to permit a construction which will effectuate the legislative intention, and we should so construe this act. See Redding v. State, supra. Dean Ralph C. Barnhart has treated the flexibility of the word “presumption” in his article “Use of Presumptions in Arkansas,” 4 Ark. L. Rev. 128 (1950), saying:

The term “presumption” is accurately used only to describe any of the instances where the courts will assume the existence of a presumed fact when the basic fact is established — in short, to describe the compelled inference situation. Sometimes the courts use the term “presumption” when they mean something else. Frequently it is used to describe a mere logical reference, that is, an inference which arises from the probative force of the evidence, and which the trier is justified in drawing from the facts proved. Such an assumption is aptly described as a justifiable inference, since the trier may draw the inference if it thinks that the evidence requires it, or it may refuse to do so if it does not. This being so, such an inference does not impose any of the procedural consequences of a presumption upon the opposite party.
* * *
The term “presumption” may be used merely to state that the proponent of an issue has made out a prima facie case, using prima facie in the sense of sufficient evidence to take the case to the jury, thus avoiding a directed verdict against him. At the point the proponent rests, his prima facie case is equally effective to avoid a directed verdict, whether founded upon a presumption or upon evidence without the aid of a presumption. With respect to the opponent, the situation is quite different. Unless he brings in evidence to rebut the presumption, the court will tell the jury to find that the presumed fact exists. If he introduces sufficient evidence to rebut the presumpdon, the proponent’s prima facie case is gone.
* * *
Presumptions may serve a number of purposes in trials of law suits, but the chief purposes usually suggested are (1) to serve some procedural function, such as allocating the burden of proof or of permitting recovery upon an assumption of a fact of which strict proof is impossible; (2) to promote some desirable social or legislative policy or result; and (3) to embody in a uniform rule of law what seems to be the common experience of mankind in identical situations.

Only recently Mr. Justice Powell pointed out in a footnote to the majority opinion in Barnes v. United States, — U.S. —, 93 S. Ct. 2357, 37 L. Ed. 2d 380 (1973), that statutes creating criminal law inferences may be interpreted to preserve the trial court’s traditional discretion in determining whether there is sufficient evidence to go to the jury and in charging the jury, and cited Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970) and United States v. Gainey, 380 U.S. 63, 85 S. Ct. 754, 13 L. Ed. 2d 658 (1965), as holding the court’s discretion to be inherent in the use of common law inferences.

In its excellent brief, the state points out that the words “rebuttable presumption” are often taken to mean an inference which obtains until overthrown by proof. See, e.g., Beck v. K. C. Public Service, 48 S.W. 2d 213 (Mo. App. 1932). See also Dean Barnhart’s article, supra. The state appropriately concedes that the constitutionality of a statutorily created presumption rests in the rational connection between the proven fact and the presumed fact. We cannot say that the connection here is not rational. Clearly, the words of the statute made the “presumption” the kind productive of a prima facie case by providing that the “presumption” may be overcome by submission of evidence to create a reasonable doubt that the person charged possessed a controlled substance with intent to deliver in violation of Act 590 of 1971.

Passing now to the rationality of the inference that possession of 100 milligrams, or more, of heroin creates such a “rebuttable presumption,” we find absolutely nothing in this record to indicate that there is no such connection between the possession of such a quantity of heroin and the intent of the possessor to deliver it. Neither this court nor the trial court was asked to take judicial notice of the amounts or quantities which a person might possess for other uses and purposes. It is at least a matter of extreme doubt that this is a matter of which the courts could be asked to take judicial notice. At any rate, in the absence of evidence contradictory of the legislative declaration, or showing it not to be upon a rational basis, we cannot strike down the fact-finding stated in this act. To do so would usurp a legislative function.

Fact-finding in the judicial department is based upon evidence presented in an adversary proceeding. Legislative fact-finding is based upon an independent, investigatory process, which may be conducted by that branch of government in various ways. Our General Assembly has devoted much time in recent years to the study of the grave problems of our society arising out of the use and distribution of various types of drugs. That body has found that possession of various drugs in excess of the quantities enumerated in Section 1, Act 68 of 1972, bears a reasonable relationship with an intent to deliver them. We should not overthrow the finding or hold it to be irrational unless we are furnished with better and more persuasive information than is in the record before us or is of such common knowledge that no evidence should be required. We do not know just what fact-finding processes were utilized by the General Assembly before enacting Act 68 of 1972. Out lack of information on this score does not license this court to say that the legislature acted arbitrarily. We cannot overturn the legislative fact-finding unless its action can be said to be arbitrary. Stanley v. Gates, 179 Ark. 886, 19 S.W. 2d 1000; Gentry v. Harrison, 194 Ark. 916, 110 S.W. 2d 497; Jumper v. McCollum, 179 Ark. 837, 18 S.W. 2d 359; Chicago Title and Trust Company v. Hagler Special School District, 178 Ark. 443, 12 S.W. 2d 881. Expressions of this rule are well put in at least two of our decisions. In Greene County v. Clay County, 135 Ark. 301, 205 S.W. 709, we said:

* * * where a power is committed to the Legislature to exercise under a given state of facts it is necessarily implied that the Legislature must first ascertain the existence of those facts, and that its determination is conclusive upon the courts. Any other rule would lead to the utmost confusion in the efforts of the courts to review legislative action upon the ascertainment of the existence of facts which may or may not appear to be conclusive. The only sound rule is, we think, to say that when there is a question of fact to be ascertained outside of those things which both courts and lawmakers must take cognizance of, the courts cannot inquire into those facts, for the purpose of overturning legislative action.

In Hill v. Echols, 140 Ark. 474, 215 S.W. 882, we added:

It is the duty of the courts to respect legislative ascertainment of facts upon which laws are based, unless such determination is obviously erroneous, and there may be facts and existing circumstances which we áre not at liberty to inquire into for the purpose of reviewing the decision of the lawmakers.

Even in Leary v. United States, 395 U.S. 6, 23 L. Ed. 57, 89 S. Ct. 1532 (1969), cited by appellant, the United States Supreme Court repeated its recognition in United States v. Gainey, 380 U.S. 63, 85 S. Ct. 754, 13 L. Ed. 2d 658 (1965), that, in matters not within specialized judicial competence or completely commonplace, significant weight should be accorded legislative capacity to amass the stuff . of actual experience and cull conclusions from it. There was, and is, no burden on the state to make a showing of the constitutionality of this provision. Appellant did bear such a burden, but has not met it.

We can readily agree with the United States Supreme Court that the declaration that every bank insolvency is presumed to result from fraud is mere legislative fiat, i.e., an arbitrary order or decree, because it should have been common knowledge that many bank insolvencies resulted, not from fraud, but from unpredictable economic conditions, and that, even when bank failures resulted from fraud, all directors were seldom involved. See Manley v. Georgia, 279 U.S. 1, 49 S. Ct. 215, 73 L. Ed. 575 (1929). We further agree with that court’s holding that there is no rational basis to support a presumption that a firearm or ammunition possessed by a convicted felon or a fugitive from justice has been shipped, transported or received in interstate commerce. See Tot v. United States, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943). The basis for a rational connection between the fact proved and that to be presumed was obviously rather strained. We can also accept the idea expressed in United States v. Romano, 382 U.S. 136, 86 S. Ct. 279, 15 L. Ed. 2d 210 (1965), that the declaration that mere presence at an illicit liquor still has a rational connection with its possession and control is somewhat arbitrary. But quite a different result would have been reached by that court had the presence been made prima facie evidence of operational activities. We can accept the idea that it is arbitrary to say that marihuana being transported in this country was possessed with knowledge that it was illegally imported. In Leary v. United States, supra, however, the court, after reviewing the legislative record on the subject, held that statute invalid because there was no rational basis upon which to base any inference that marihuana possessors could, did, or should “know” that their marihuana was illegally imported. Indications from that record were that it would have been virtually impossible for legislative fact finders to arrive at the conclusion that most of the marihuana transported in this country was possessed with knowledge that it was illegally imported.

We cannot accept the Indiana Supreme Court’s rationalization in cases such as Powers v. State, 204 Ind. 472, 184 N.E. 549 (1935) and Walter v. State, 208 Ind. 231, 195 N.E. 268, 98 A. L. R. 607 (1935), that before a proven fact can constitute prima facie evidence of a fact, the first fact must necessarily be sufficient, of itself, to sustain a conviction.

The general rule, apparently adopted by an overwhelming majority of jurisdictions, is succinctly stated at 16 C.J.S. 528, § 128, as follows:

The legislature is also authorized to establish presumptions, and the effect to be given thereto, and it may declare what shall be prima facie evidence, in both civil and criminal proceedings, provided the facts to be proved fairly relate tp, and have a natural connection with, the proposition to be inferred therefrom, and the statute furnishes some guide or test stating the facts necessary to constitute the prima facie case, leaving it to the court to decide whether such facts have been proved. The legislature may also regulate the burden of proof, and the extent thereof required. Indeed, it has been broadly stated that legislation may validly prescribe the weight to be given to evidence, but other decisions hold that the legislature does not possess the power to declare what weight the court shall give to certain evidence.

Examination of the footnotes to the above text indicates that Indiana may be virtually alone in its position. We have spoken on the subject ourselves in a manner indicative of our rejection of the extreme Indiana position. In Linville v. State, 129 Ark. 36, 195 S.W. 382, we found no constitutional inhibition against legislative relaxation of the common law rule of evidence requiring the state to prove the material allegations of a criminal charge beyond a reasonable doubt, even though we did not find any encroachment upon that rule. In that case, the statute provided that in abandonment and non-support cases, no evidence should be required to prove that the accused husband was married to the wife, or is the father of the children involved, other than would be necessary to prove these facts in a civil action and approved an instruction that advised the jury that it was not necessary to find beyond a reasonable doubt that the man and woman were married but that these facts might be found upon a preponderance of the evidence. But more pertinently, we have sustained a statute providing that the acceptance of payments by a contractor on a contract without discharging a properly filed laborer’s or materialman’s lien within 10 days after receipt of payment or of notice of the lien was prima facie evidence of intent to defraud in a prosecution for the crime of failure to discharge mechanics’ and materialmen’s liens in violation of Ark. Stat. Ann. § 51-640 (Supp. 1965). We said in State v. Jacks, 245 Ark. 77, 418 S.W. 2d 622:

The general rule, well established in many jurisdictions, including the United States Supreme Court, is well stated in O’Neill v. United States, 19 F. 2d 322 (8 Cir., 1927):
“The general principle is well recognized that even in criminal prosecutions, Congress or a state Legislature may with certain limitations enact that when certain facts have been proved they shall be prima facie evidence of the existence of the main fact in question. * * * The limitations are these: There must be some rational connection between the fact proved and the ultimate fact presumed; the inference of the existence of the ultimate fact from proof of the other fact must not be so unreasonable or unnatural as to be a purely arbitrary mandate; and the accused must not be deprived of a proper opportunity to present his defense to the main fact so presumed and have the case submitted upon all the evidence to the jury for its decision.”
The case at bar clearly cannot be classified as a peonage statute. It is more comparable to our law making it an offense to execute an overdraft which likewise contains the presumption clause. Ark. Stat. Ann. §§ 67-720 — 24 (Repl. 1966). This court said in Edens v. State, 235 Ark. 284, 357 S.W. 2d 641 (1962) that the only effect of the presumption clause in § 67-722 is to place the burden on the defendant to go forward with the case. The burden of proof is not shifted.
Further protection is afforded Jacks by the holding in Reno and Stark v. State, 241 Ark. 127, 406 S.W. 2d 372 (1966), where we held that it is improper for the trial court to advise the jury of the presumption provision. Reno and Stark involved the charge of failure to discharge materialmen’s liens.
We hold that the presumption clause has a rational connection with the balance of our statutes governing mechanics’ and materialmen’s liens. It is not arbitrary. The accused is not deprived of opportunity to present his defense on the main fact. The presumption of innocence remains with the accused and the burden of proof on the whole case is on the State. The accused is merely required to go forward with his proof when the lien is established, payment is proven, and the failure to satisfy the lien is shown.

We cannot agree with the implied equation of the statutory declaration with comments upon the failure of an accused to testify, or the argument that the statute requires an accused to prove his innocence, and violates his privilege against self-incrimination. As pointed out in Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970), the appropriate evidentiary rebuttal might come through the testimony of others than the accused himself. It should be noted that the statutory presumption in that case that Turner purchased, sold, dispensed, or distributed a narcotic drug (cocaine) not in or from the original package, if found in possession of the drug without the appropriate tax stamps, was overturned upon the basis that bare possession was obviously an insufficient predicate for a conclusion that Turner was either dispensing or distributing and that there was a reasonable possibility that Turner did not purchase the cocaine, but either stole it or purchased it from a thief in a stamped package.

The United States Supreme Court has again, on June 18, 1975, flatly rejected, upon the authority of United States v. Gainey, 380 U.S. 63, 85 S. Ct. 754, 13 L. Ed. 2d 658 (1965), the argument that a properly worded instruction on a permissive inference constitutes a comment on the defendant’s failure to testify. Barnes v. United States, — U.S. —, 93 S. Ct. 2357, 37 L. Ed. 2d 380 (1973).

Although, according to the stipulated record, the question of constitutionality arose upon appellant’s objection to a jury instruction in the language of the statute, the only objection made went to the question of constitutionality of the statute. No mention or hint of the instruction’s being a comment on the evidence appears anywhere in the record until appellant’s reply brief was filed. There, appellant invokes Article 7, Section 23, of the Constitution of Arkansas by asserting that to adopt the state’s conclusion that the act is constitutional would be contrary to that constitutional provision. A complete answer to that particular argument is that there is no language whatever in the statute that requires the court to instruct the jury as to the impact or effect of proof of possession of more than 100 milligrams of heroin. Consequently, the section of the act in question cannot possibly be unconstitutional because of conflict with that section of our state constitution.

The question whether the instruction quoting the statute, insofar as it related to possession of heroin, violates Article 7, Section 23, is not properly before this court, even if the recited argument, advanced for the first time in appellant’s reply brief, could be said to raise it. Yellow Cab Co. v. Sanders, 250 Ark. 418, 465 S.W. 2d 324; Ryall v. Waterworks Improvement Dist. No. 3, 247 Ark. 739, 447 S.W. 2d 341. It may well be that the instruction would fall upon the authority of Lott v. State, 223 Ark. 841, 268 S.W. 2d 891, in which it was held that telling the jury that an inference of gtiilt of larceny could be based upon an accused’s possession of recently stolen property was prohibited as a comment on the evidence. We reserve that question for another day when the state shall have had an opportunity to state and advocate its position thereon.

On the record presented, we hold that Section 1, Act 68 of 1972, is constitutional and affirm the judgment.

Mr. Jus dee Byrd dissents.

Conley Byrd, Justice,

dissenting. Appellant James Stone was convicted of possessing heroin, a controlled substance, with intent to deliver contrary to Ark. Stat. Ann. § 82-2617 (Supp. 1971), as amended. For reversal he contends that the trial court erred in instructing the jury in accordance with Act 68 of 1972.

Section 1, Article IV, Act 590 of 1971 (Ark. Stat. Ann. § 82-2617), makes possession of a drug with intent to deliver a felony. Mere unlawful possession is only a misdemeanor. Act 68 of 1972 provides:

“SECTION I. Section 1 of Article IV of Act 590 of 1971 is hereby amended by adding a new subsection at the end thereof to read as follows:
“(d) Rebuttable Presumption. Possession by any person of a quantity of any controlled substance listed in this subsection in excess of the quantity limit set out herein, shall create a rebuttable presumption that such person possesses such controlled substance with intent to deliver in violation of Section 1 (a) and (b) of this Article. Provided, however, the presumption provided for herein may be overcome by the submission of evidence to create a reasonable doubt that the person charged possessed a controlled substance with intent to deliver in violation of Section 1 (a) and (b) of this Article.
Heroin.— 100 milligrams
Opium. 5 grams
Morphine. 300 milligrams
Cocaine. 2 grams
Codeine. 600 milligrams

The stipulated facts upon which this record is before us shows that appellant had 1200 milligrams of heroin in his possession. The trial court instructed the jury as follows:

“Possession by any person of a quantity of Heroin in excess of 100 milligrams shall create a rebuttable presumption that such person possesses such Heroin with intent to deliver, provided, however, the presumption provided for herein may be overcome by the submission of evidence sufficient to create a reasonable doubt that the person charged possessed Heroin with intent to deliver in violation of law.”'

The brief writers have not favored us with any expertise as to the dosage of heroin for either medication purposes or addiction. In a book entitled Narcotics and Narcotic Antagonists by Francis F. Folder, M.D., Mark Swerdlow, M.D. and Ephraim S. Siker, M.D., it is pointed out at page 183 that heroin is two to four times as potent as morphine. At page 86 the authors state:

"After prolonged use very high doses of narcotics may be tolerated by addicts. The usual daily dose of morphine in long standing addiction is in the range of 2 to 3 gr., but in a verified case as much as 5 gm. were used daily and 2 gm. of morphine were injected intravenously in 0.25 gr. increments within two and one half hours to an addict without any appreciable deleterious effect. The degree of tolerance, however, is not limitless. Fatalities among narcotic addicts occur not infrequently from overestimation of the tolerated dose.”

The same authors point out at page 138 that the normal dose of codeine in adults is 30 to 60 milligram. A common pill sold under the trade name of Empirin No. 3 contains 30 milligram of codeine.

Statutes such as that involved here which make one fact evidence of another fact have been before the courts on numerous occasions. Apparently most of the state courts, except Rhode Island, see State v. Beswick, 13 R. I. 211 (1880), at first, took a rather liberal view of such statutes. See State v. Kelly, 218 Minn. 247, 15 NW 2d 554, 162 A.L.R. 477 (1944). The Minnesota court criticizes these early decisions in this language:

“The pragmatic test focuses on the end in view rather than on the means applied. The rights of the individual are sacrificed because it is thought that the welfare of society demands it. In the many cases which have sustained statutory presumptions in connection with prosecution for violation of liquor laws, it is evident that the decisions are based upon the wholesome desire to enforce the liquor laws rather than on reason and experience. In their labored effort to sustain these statutes under any and all circumstances as a proper exercise of legislative control over evidence, many state courts have abjured all adherence to the Bill of Rights, as if it were a mere scrap of paper. ...”

The early state court cases were not always unanimous. For instance in Commonwealth v. Williams, 6 Gray, Mass. 1, 9 (1856), construing a statute making the delivery of spirituous liquor prima facie evidence of a sale, Mr. Justice Thomas, in a dissent, made the following criticism of the rebuttable presumption.

“. . . Upon the proof of a fact, equally consistent with the innocence, as with the guilty of accused, it infers and presumes his guilt. Upon the proof of an act which the law nowhere forbids or censures, and which is, in and of itself, without meaning, it takes from the accused the presumption of innocence, and calls upon him for his defence; his defence not to the thing proved, but to the thing not proved, the thing the government has failed to prove, to wit, a sale.”

After state courts had approved such legislative presumptions as to liquor violations, the state legislatures started enacting similar presumptions to other conduct. For instance Georgia enacted a banking law which provided:

“Every insolvency of a bank shall be deemed fraudulent, and the president and directors shall be severally punished by imprisonment and labor in the penitentiary for not less than one (1) year nor more than ten (10) years; provided that the defendant in a: case arising under this section, may repel the presumption of fraud by showing that the affairs of the bank have been fairly and legally administered, and generally, with the same care and diligence that agents receiving a commission for their services are required and bound by law to observe; and upon such showing the jury shall acquit the prisoner.”

In Manley v. State of Georgia, 279 U.S. 1, 49 S. Ct. 215, 73 L. Ed. 575 (1929), this statute was held violative of the due process clause, of the Fourteenth Amendment. In so doing the United States Supreme Court said: “Mere legislative fiat may not take the place of fact in the determination of issues involving life, liberty or property.”

In Tot v. United States, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943), the statute before the court provided:

“It shall be unlawful for any person who has been convicted of a crime of violence or is a fugitive from justice to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce, and the possession of a firearm or ammunition by any such person shall be presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this Act.”

The court pointed out that there was no connection between the fact proved and the presumed fact in common experience, and in holding the act violative of the due process clause, said:

“The Government seems to argue that there are two alternative tests of the validity of a presumption created by statute. The first is that there be a rational connection between the facts proved and the fact presumed; the second that of comparative convenience of producing evidence of the ultimate fact. We are of the opinion that these are not independent tests but that the first is controlling and. the second but a corollary. Under our decisions,, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may'not be created upon a view of relation broader than that a jury might take in a specific case. But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know. them, it is not competent for the legislature to create it as a rule governing the procedure of courts.”

In Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), there was before the court of California a law that permitted comment upon the failure of the accused to testify in his own behalf. The California trial court, pursuant to such law, had instructed the jury:

“As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.”

In holding this violative of the Fifth Amendment, the court said:

. . The question remains whether, statute or not, the comment rule, approved by California, violates the Fifth Amendment.
“We think it does. It is in substance a rule of evidence that allows the State the privilege of tendering to the jury for its consideration the failure of the accused to testify. No formal offer of proof is made as in other situations; but the prosecutor’s comment and the court’s acquiescence are equivalent of an offer of evidence and its acceptance. ...”

Tn United States v. Romano, 382 U.S. 136, 86 S. Ct. 279, 15 L. Ed. 2d 210 (1965), upon a charge of “possession, custody and control of an illicit still” in violation of 26 U. S. C. 5601 (a) (1), the trial court had in accordance with 26 U. S. C. 5601(b) (1), instructed the jury that the presence of the defendant at the site of an illegal still “shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury.” In holding the statute void, the Court said:

“The test to be applied to the kind of statutory inference involved in this criminal case is not in dispute. In Tot v. United States, 319 U.S. 463, the Court, relying on a line of cases dating from 1910; reaffirmed the limits which the Fifth and Fourteenth Amendments place ‘upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated. . . .
“. . . Presence tells us only that the defendant was there and very likely played a part in the illicit scheme. But presence tells us nothing about what the defendant’s specific function was and carries no legitimate, rational or reasonable inference that he was engaged in one of the specified functions connected with possession, rather than in one of the supply, delivery or operational activities having nothing to do with possession. Presence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant’s function at the still, its connection with possession is too tenuous to permit a reasonable inference of guilt — ‘the inference of the one from the proof of the other is arbitrary. . . .’ ”

In Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969), the charge was knowingly transporting marihuana which had been illegally imported. The statute also provided:

“Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.”

After consulting the authorities to the effect that some marihuana is grown in the United States, the court in holding the presumption invalid said:

“The upshot of Tot, Gainey, and Romano is, we think, that a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.”

In a concurring opinion, Mr. Justice Black pointed out that the statutory presumption permitted Leary to be convicted without being confronted with the witnesses against him.

In Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970), Turner was convicted on two counts relating to heroin and two counts relating to cocaine. The first count on heroin charged that Turner violated 21 U.S.C. § 174 by receiving . . . and facilitating the transportation of heroin knowing that it had been unlawfully imported. The second count charged that Turner purchased, possessed and distributed heroin not in or from the original stamped package in violation of 26 U.S.C. § 4704(a). Identical charges were made with respect to the cocaine. At the trial the Government presented the evidence of the seizure of the drugs from Turner but presented no evidence of origin. On the § 174 counts the trial judge charged, in accordance with the statute, that the jury could infer from Turner’s unexplained possession of the heroin and cocaine that he knew that it had been unlawfully imported. On the § 4704(a) counts, the trial judge read to the jury the statutory provision making posession of drugs not in a stamped package prima facie evidence that Turner purchased, sold, dispensed or distributed the drugs not in or from a stamped package. The Court again consulted the authorities from which it determined that cocaine was manufactured in this country but that heroin was neither produced nor manufactured in this country. Upon these facts the Court concluded that the possession of heroin was equivalent to the possession of “imported heroin.” The § 174 conviction for knowingly receiving and transporting heroin that he knew was illegally imported was upheld. The Court after characterizing the § 4704(a) heroin charge as one “of purchasing in or from an unstamped package” also upheld that conviction. In so doing the Court was careful to make the following clarification:

“Moreover, even if the evidence as to possession is viewed as not in itself proving that Turner was distributing heroin, his conviction must be affirmed. True, the statutory inference, which on this assumption would assume critical importance, could not be sustained insofar as it authorized an inference of dispensing or distributing (or of selling if that fact had been charged), for the bare fact of possessing heroin is far short of sufficient evidence from which to infer any of these acts. Cf. Tot v. United States, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943); United States v. Romano, 382 U.S. 136, 86 S. Ct. 279, 15 L. Ed. 2d 210 (1965). But the inference of purchasing in or from an unstamped package is another matter.”

The Court held the statutory presumptions invalid as to the cocaine charges. In discussing the presumption with respect to the § 4704(c) cocaine count, the Court said:

“Since Turner’s possession of cocaine did not constitute an act of purchasing, dispensing, or distributing, the instruction on the statutory inference becomes critical. As in the case of heroin, bare possession of cocaine is an insufficient predicate for concluding that Turner was dispensing or distributing. As fór the remaining possible violation, purchasing other than in or from the original stamped package, the presumption, valid as to heroin, is infirm as to cocaine.
“While one can be confident that cocaine illegally manufactured from smuggled coca leaves or illegally imported after manufacturing would not appear in a stamped package at any time, cocaine, unlike heroin, is legally manufactured in this country; and we have held that sufficient amounts of cocaine are stolen from legal channels to render invalid the inference authorized in § 174 that any Cocaine possessed in the United States is smuggled cocaine. . . . Similar reasoning undermines the § 4704(a) presumption that a defendant’s possession of unstamped cocaine is prima facie evidence that the drug was purchased not in or from the original stamped container. The thief who steals cocaine very probably obtains it in or from a stamped package. There is a reasonable possibility that Turner either stole the cocaine himself or obtained it from a stamped package in possession of the actual thief. The possibility is sufficiently real that a conviction resting on the § 4704(a) presumption cannot be deemed a conviction based on sufficient evidence. . . .”

The State Courts, that have had an occasion to discuss the subject of statutory presumptions since the Tot case, supra, have arrived at the same conclusions reached by the United States Court. See Sharp v. Commonwealth, 213 Va. 269, 192 S.E. 2d 217 (1972), wherein the court held invalid a statute that permitted the jury to convict one in possession of marihuana with intent to distribute upon the sole evidence of possession. A strong and rather thorough discussion can be found in State v. Kelly, 218 Minn. 247, 15 N.W. 2d 554, 162 A.L.R. 477 (1944). Under the laws of Minnesota possession of intoxicating liquor was permitted and made lawful in both wet and dry counties. Another statute provided:

“The finding of any such intoxicating liquors in the possession of any person, by means of search warrant shall be prima facie evidence that such person had possession of such liquors for the purpose of selling. . . without having obtained a license.”

In holding this statute invalid the court among other things said:

“It has been well stated that presumptions of law— at the best, uncertain instruments in the investigation and discovery of truth — are especially dangerous, in the administration of criminal justice, when used to control or impair the natural fundamental presumption of innocence; their effect being to give to evidence a technical probative force beyond that which it would naturally and ordinarily possess, in pro-ducting conviction in the minds of the jury. . . .
“. . . [T]o hold that a legislature can create artificial presumptions of guilt from facts which are not only consistent with innocence, but which are not even a constitutent part of the crime when committed, is to hold that it has the power to take away from a judicial trial, or at least substantially reduce in it, the very element which makes it judicial. . . .”

The Indiana Supreme Court had before it presumptions dealing with the possession of an unregistered firearm in Powers v. State, 204 Ind. 472, 184 N.E. 549 (1933), and with embezzlement of bank deposits in Walter v. State, 208 Ind. 231, 195 N.E. 268, 98 A.L.R. 607 (1935), long before the Tot case, supra.

In Powers v. State, supra, the charge was murder and the plea was self defense. The prosecution proved that the defendant’s weapon was an unregistered firearm and to sustain its admissibility relied upon the following statute:

“In the trial of a person charged with committing or attempting to commit a felony against the person or property of another while armed with a pistol or revolver, without having a permit to carry such firearm as hereinbefore provided, the fact that such person was so armed shall be prima facie evidence of his intent to commit such felony.”

The court pointed out that the shooting, if unlawful, could not be justified by a permit to carry a pistol, and, if the shooting was necessary to protect the appellant from death or great bodily harm, he was not required to forego protecting himself and suffer death or great bodily harm merely because he was carrying his pistol without a permit. In holding the statute invalid and the evidence inadmissible, the court said:

“Enactments, such as the one under consideration, seek to establish a weight for certain evidence as affecting criminal intent. The authorities here cited . . . give no support to the theory that the legislature has any such power. We agree that an enactment which would make a fact prima facie evidence of crime which has no relation to a criminal act, and no tendency to establish a criminal act, would be unconstitutional. But we must go farther and hold that before a proven fact can constitute prima facie evidence of criminal intent, it must be sufficient of itself to sustain a conviction without support of statutory enactment. We cannot agree with the proposition that if the legislature gives a party a fair opportunity to establish his defense, and give evidence, the enactment is constitutional. Such a rule would require a defendant to prove himself innocent, notwithstanding the evidence against him,, unsupported by legislative enactment, would not be sufficient to sustain a verdict of guilty.”

The subsequent case of Walter v. State, supra, involved an Indiana statute defining the crime of embezzlement to include a bank officer who received a deposit when the bank was insolvent. The same statute also provided that the failure, suspension, or involuntary liquidation of the bank within thirty days after the time of receiving the deposit, which is charged to have been embezzled, shall be prima facie evidence of intent to defraud. In holding the prima facie presumption invalid the court said:

“Section 19, of article 1 of the Constitution of Indiana provides: ‘In all criminal cases whatever, the jury shall have the right to determine the law and the facts.’ It has been repeatedly held, and is well settled, that it is error for the court in a criminal action to instruct the jury what evidence will be sufficient to establish any ultimate fact. Such an instruction is an invasion of the constitutional right of the jury to determine the facts for itself. The Legislature has no more right to invade the province of the jury than the court, and it cannot invest the court with power to invade the constitutional province of the jury. The giving of the instruction referred to was error.”

The Constitution of the State of Arkansas, Art. 7, § 23 has a similar provision which provides: “Judges shall not charge juries with regard to matters of fact, but shall declare the law. . . .” While we have had no occasion to interpret this provision with respect to statutory presumptions, it has been applied to common law presumptions such as the possession of recently stolen goods. See Mays v. State, 163 Ark. 232, 259 S.W. 398 (1924), wherein the trial court upon a charge of receiving stolen property, instructed the jury, “. . . that the finding of stolen property in the possession of another, shortly after the said property had been stolen, raises a presumption of guilt as against the person in whose possession the same is found, but that this presumption is a rebuttable one, and that, if this possession is explained to the satisfaction of the jury, the presumption is overcome. . . .” We there held that such presumptions constituted an invasion of the province of the jury contrary to the aforesaid constitutional provision. Other courts have arrived at similar conclusions upon presumptions from flight of the accused. See Hickory v. United States, 160 U.S. 408, 16 S. Ct. 327, 40 L. Ed. 474 (1896).

Thus it appears to me that the statutory presumption here is invalid under the due process clause, the Sixth Amendment right to confrontation of witnesses and the Fifth Amendment right to remain silent. Furthermore, under the interpretation given to the act by both the trial court and the State in the trial of this case, the act also violates Art. 7 § 23 of our Constitution which prohibits comments on the weight of the evidence. See Reno and Stark v. State, 241 Ark. 127, 406 S.W. 2d 372 (1966).

The anomaly of the majority’s position can be demonstrated by the fact that hereafter all such cases will be tried before a jury — the jury may not know about the statute whereas defense counsel can be certain that in a trial before the judge the judge will certainly be aware of the inference.

For the reasons herein stated I respectfully dissent.

      We ourselves have called a similar statutorily declared presumption to be a "rebuttable presumption” when it can be overcome by proof. Cactus Distributing Co. v. State, 249 Ark. 113, 458 S.W. 2d 149. See Ark. Stat. Ann. § 48-922 (Repl. 1964).

      See Act 258 of 1937, Act 344 of 1937, Act 324 of 1941, Act 155 of 1941, Act 250 of 1959, Act 590 of 1971.

      It should be noted that in Tot the pertinent statute provided for a conclusive, not rebuttable, "presumption.”

      We have many such statutes, in addition to those to which reference has been made in this opinion, declaring similar presumptions. See, e.g.,
      Ark. Stat. Ann. § 75-1031.1 (Repl. 1971)
      (as to blood content sufficient to show driver of motor vehicle under the influence of intoxicating liquor)
      Ark. Stat. Ann.' § 73-1001 (Repl. 1957)
      (construed to declare a presumption that a railroad is negligent upon proof of an injury caused by the running of a train)
      Ark. Stat. Ann. § 73-231 (Supp. 1971)
      (making proof of existence of a weighing device on a building in which or from which buying or selling is commonly carried on presumptive evidence that the device is regularly used for commercial purposes by the person in charge of the building)
      Ark. Stat. Ann. § 75-623 (Supp. 1971)
      (making collision with a pedestrian in a cross-walk or vehicle in intersection by driver who failed to stop at yield sign prima facie evidence of driver’s failure to yield right-of-way)
      Ark. Stat. Ann. § 41-3942 (Supp. 1971)
      (by which wilful concealment of unpurchased goods is basis of prima facie presumption of intention of concealer to convert goods to own use).

      The qualifying language of the statute may bring it within the purview of instructions such as that approved in Selman v. State, 159 Ark. 131, 251 S.W. 882. The instruction was not restricted to a statement that the possession of more than 100 milligrams tended to prove an intent to deliver, so that it would come within the coverage of Walker v. State, 138 Ark. 517, 212 S.W. 319. Nor was it couched in such language as we approved for advising the jury of the inference permissible from possession of recently stolen property in Petty v. State, 245 Ark. 808, 434 S.W. 2d 602. In Barnes v. United States, supra, the United States Supreme Court has held that an instruction submitting a permissive inference to a jury does not violate federal constitutional due process requirements so long as it only permits, but does not require, the jury to draw the inference, and to weigh the evidence consistent with innocence given in explanation on behalf of the defendant, and shifts only the burden of going forward to the defendant. See also, United States v. Gainey, supra.


author: J. Fred Jones, Justice.

text:
    Ross FORTUNA v. Robert ACHOR et al
    6182
    497 S.W. 2d 251
    Opinion delivered July 23, 1973

      Hodges, Hodges & Hodges and Dan Orr, for appellant.

      Ponder ir Lingo and Burris & Berry; for appellees.
   J. Fred Jones, Justice.

This is an appeal by Ross Fortuna from an adverse chancery court decree in a land partition suit. The facts are somewhat confused by the length and nature of the litigation, but as near as we can determine from the record before us, they appear as .follows:

It seems that Ross Fortuna and Robert Achor were originally residents of Florida and conceived the idea of purchasing and developing into residential plots, a large tract of land in Sharp County, Arkansas. Approximately 1,200 acres were thus acquired from local landowners apparently in 11 contiguous tracts of varying size in acreage. Legal title to some of the tracts was held by Fortuna and Achor as tenants in common with each owning a one-half undivided interest. Mrs. Achor was also a grantee in some of the deeds. The title to one of the tracts was taken in the name of Achor alone but actually belonged to Fortuna and Achor as tenants in common. The title to another tract was taken in the name of Fortuna alone but actually belonged to Fortuna and Achor as tenants in common. The title to another tract, designated as tract 10, was held by Fortuna, Achor, Edgar E. Huddleston, Elnora P. Huddleston and John C. McQuiston. Fortuna and Achor owned an undivided one-fourth interest in this tract as tenants in common, while Mr. and Mrs. Huddleston owned an undivided one-half interest and McQuiston owned the remaining one-fourth undivided interest.

It appears that some of the land had been replatted and some work and expense had been incurred in its development when Fortuna and Achor disagreed about going forward as co-tenants in the project. They attempted to divide their holdings between themselves but it appears that they were unable to effect a settlement pertaining to credits for expenses each had incurred in developing the property. Their disagreement resulted in the commencement of this litigation when Fortuna and the Huddlestons filed a partition suit in the chancery court, with Mr. and Mrs. Achor and Mr. McQuiston as the named defendants. The Achors filed an answer admitting the ownership of the lands in common with Fortuna, but alleging that they had agreed to exchange interests in some of the property. They alleged certain expenditures in developing the property and prayed as follows:

“Wherefore, defendants Robert Achor and Henretta Achor ask that their contract of division be enforced and all other lands jointly owned be divided in kind; that if this be not done, then an accounting be made and the lands divided in kind in such a way as to protect, their investment; that if this cannot be done and the lands are ordered sold, that the amount an accounting shows should be credited to them should be deducted from Fortuna’s share of the sale and added to their share of the proceeds of the sale; for their cost and all other proper relief.”

The petitioners were represented in this suit by Attorney John Burris of the law firm of Dudley and Burris, and the respondents were represented by Attorney H. L. Ponder. The petition was heard by Chancellor Charles F. Cole who granted the petition. Chancellor Cole directed the parties to name commissioners to view and appraise the lands and the chancellor set out in detail the duties of the commissioners. He then continued the case pending report of the commissioners. Commissioners were selected by the parties and appointed as directed by the chancellor and the commissioners filed their report. The commissioners’ report is omitted from the abstract as immaterial by the appellant, but Mr. and Mrs. Achor objected to the report of the commissioners and requested a hearing thereon.

In the meantime, the Honorable Charles F. Cole was replaced as chancelloi by the Honorable Robert Dudley who was the presiding chancellor when Achors’ objections to the commissioners’ report came on to be heard. Upon request of Mr. and Mrs. Achor, Chancellor Dudley disqualified himself from presiding in the matter because he was one of the attorneys of record representing the original petitioners in the case. At this point in the proceedings, Fortuna discharged Attorney Burris and he was permitted to withdraw as attorney for Fortuna by order of the Honorable Andrew Ponder who was sitting as chancellor on exchange. Attorney Burris, however, continued to represent the Huddlestons and the court reserved jurisdiction, to award a reasonable attorney’s fee as prayed by Burris for his representation of Fortuna. Following the disqualification of Chancellor Dudley, the Honorable Wayne Boyce was elected special chancellor to preside over the remainder of the case. The report of the commissioners was accepted and approved by the court; the property was ordered sold and the proceeds divided according to the interests of the parties. The partition sale has been conducted and the proceeds are being held subject to distribution pending this appeal.

Upon employing his present counsel, Fortuna filed a motion to prohibit Attorney Burris from further participation in the case as attorney for the Huddlestons or anyone else, and challenged the jurisdiction of the chancellor on exchange to relieve Mr. Burris from representing Fortuna. Mr. Fortuna also challenged the election of The Honorable Wayne Boyce as special chancellor to hear the case upon the disqualification of Chancellor Dudley. Both issues were resolved against Fortuna, and Achors’ objections to the report of the commissioners were overruled.

Mr. Fortuna has appealed to this court and if we should attempt to discuss each argument he has advanced in support of the points he relies on for reversal, this opinion would become as lengthy and complicated as the record before us.

The appellant first contends that the chancellor erred in denying his motion to set aside the appointment of the special chancellor. We find no merit to this, contention because under Ark. Stat. Ann. § 22-436 (Repl. 1962) a special chancellor may be elected in the same manner as special circuit court judges are elected, and § 21 of Art. 7 of the Constitution provides in part as follows:

“. . . [I]f the judge of said court . . . shall from any cause be disqualified from presiding at the trial of any cause then pending therein, then the regular practicing attorneys in attendance on said court may in like manner, on notice from the judge or clerk of the said court, elect a judge to preside at such court or to try said causes, and the attorney so elected shall have the same power and authority in said court as the regular judge would have had if present and presiding. . . .”

We conclude from the record before us, that this procedure was properly followed in the case at bar.

The appellant next contends that the trial court erred in overruling his motion for a voluntary nonsuit without prejudice. We have held that after final submission, the motion for a voluntary nonsuit is in the sound discretion of the trial court. Raymond v. Young, 211 Ark. 577, 201 S.W. 2d 583. It is our view that this case was finally submitted when the petition was granted and partition ordered. All that remained to be done, or all that should have remained to be done, was the acceptance and approval of the report of the commissioners; the sale of the property and the distribution of the receipts. A more compelling reason, however, is that the Huddlestons remained petitioners for partition and, while they shared in the ownership of only one of the tracts, the Achors also prayed affirmative relief calling for partition of the property. We conclude that the chancellor did not abuse his discretion in refusing Fortuna’s motion to dismiss without prejudice.

The appellant next contends that the chancellor erred in denying his motion to enforce a compromise agreement entered into October 1, 1971, and hold John Achor in contempt of court for failure to perform such agreement. From the record on this contention, it appears that at one of the court hearings the parties were in near agreement on a partition of the property, with the exception of one of the tracts on which some improvements had been made. At the chancellor’s suggestion the attorneys with their clients retired from the courtroom in an effort to come to an agreement on this tract. It appears that John Achor, a brother of the appellee Robert Achor, participated in the conference and offered to purchase the tract and pay Mr. Fortuna a specified amount therefor. It then turned out that John Achor was unable to raise the money with which to pay Fortuna, and the entire attempt at partition by agreement was unsuccessful. We are unable to find from the record where John Achor was acting as agent for his brother and sister-in-law, Robert and Henretta Achor in connection with this offer, and we conclude that Fortuna’s remedy, if any, for the enforcement of John’s alleged agreement, would be in a proceeding on contract rather than through contempt. We find no merit in this assignment.

The appellant next contends that his motion to disqualify the special chancellor should have been granted. It appears that the law firm of which the special chancellor was a member, at some time in the past had represented a book company in a garnishment proceeding against a bank in which John Achor had some funds. The entire matter was settled amicably and we find no merit to this contention.

The appellant next contends that the chancellor erred in awarding John Burris two legal fees. Mr. Burris was awarded a fee of $2,500 (based on 5% of the sale price) to be paid from the proceeds of the sale of tract 10 in which the Huddlestons owned á one-half undivided interest, and was awarded the additional amount of $2,500 to be paid from the sale of the remaining lands because of his work in connection with the overall partition suit. It is apparent from the record that the court considered these awards as one fee for Mr. Burris’ work with the Huddlestons bearing the greater portion of it. Mr. For-tuna was the only one objecting to the payment of the fee and his objection seemed to primarily be on the basis that Mr. Burris should have been prevented from continuing in the case as attorney for the Huddlestons after he had been discharged by Fortuna, and that a $2,500 fee would be ample pay for his services until the time of his discharge by Fortuna. The lands sold at partition sale for over $100,000; Mr. Burris offered evidence that he had earned the fee awarded, and there was no evidence offered that he had not. We find no error on this assignment.

The appellant next contends that the court exceeded its authority in ordering tracts one through nine sold at the request of a litigant (Huddleston) not having proprietary interest in said tracts. We find no merit whatever in this contention. The petition was filed by Fortuna as well as the Huddlestons and the same action was requested in the alternative by the Achors as already set out. The petition was granted as to all the participants, including Robert and Henretta Achor as well as Fortuna, the Huddlestons and J. C. McQuiston.

The appellant next contends that the court erred in not enforcing the October 1, 1971, agreement requiring appellees Robert and Henretta Achor to pay John Burris’ fee in the sum of $2,500. We find no merit to this contention because this arrangement was a part of the attempted agreement already discussed and which was never consummated because of John Achor’s inability to raise the money with which to pay Fortuna.

The appellant next contends that the election procedure under Art. 7, § 21, of the Arkansas Constitution violates the Constitution of the United States. We do not agree with this contention. He next contends that the notice of sale was defective and the sale should be voided. The appellant argues several points under this assignment, including the argument that there were some tracts included in the sale that belonged to third parties who were not parties to the lawsuit. It appears that two or three of the building plots had been sold to third parties prior to the partition sale and that these lots were eliminated from the sale by an agreement of the parties. We find no merit to this assignment.

As already stated, to answer all the arguments presented in support of the points raised by the appellant in this case, would add many pages to this opinion. We have examined the entire record in this case and find no reversible error in any of the points raised by the appellant. We conclude, therefore, that the decree of the chancellor is not against the preponderance of the evidence and should be affirmed.

The decree is affirmed.