text:
    Darrell A. MORPHEW v. SAFECO INSURANCE COMPANY OF AMERICA
    74-50
    510 S.W. 2d 543
    Opinion delivered June 24, 1974

      Tackett, Moore, Dowd & Harrelson, for appellant.

      Wayne Prescott and Victor Hlavinka, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Darrell A. Morphew from a circuit court judgment in favor of the appellee, Safeco Insurance Company of America, in a suit brought by Morphew against Safeco under the omnibus clause of a liability insurance policy issued by Safeco on an automobile belonging to Larry Vanderburg and being driven by Thomas Melvin Francis with Vanderburg's consent.

The facts, in so far as they relate to the question on this appeal, appear as follows: Thomas Melvin Francis lived with Larry Vanderburg at 301 East 33rd Street in Texarkana, Arkansas. On November 12, 1971, Francis was driving Vanderburg’s automobile and ran it into the rear of Morphew’s automobile injuring Morphew and damaging his automobile. The appellee Safeco had liability coverage on Vanderburg’s automobile and voluntarily paid some of the medical bills and automobile repair bills sustained by Morphew. When Safeco and Morphew were unable to reach a settlement for Morphew’s injuries, he filed suit in circuit court against both Francis and Vanderburg. He obtained personal service upon Vanderburg and attempted constructive service upon Francis under the Arkansas nonresident motorist statute, Ark. Stat. Ann. § 27-342.1 (Supp 1973). Morphew dismissed his complaint against Vanderburg and took a default judgment against Francis for $6,000.

Morphew then filed suit directly against Safeco alleging that Francis was operating the automobile owned by Vander-burg with the permission of Vanderburg. Morphew alleged Safeco’s coverage on the Vanderburg automobile and the coverage extension to Francis as the driver of the insured automobile with the owner’s permission. Morphew then alleged that Safeco had notice of the lawsuit against Francis; that Safeco had in fact paid for automobile repairs; that Safeco was given an opportunity to defend the suit against Francis; that Safeco had been notified of the existence of a judgment against Francis, and that even though demand had been made against Safeco for the payment of the amount of the judgment, Safeco has failed and refused to pay same.

Safeco filed answer admitting the collision as alleged in the complaint and admitting its coverage on the Vanderburg automobile in the amounts alleged. It admitted notice of judgment against Francis and admitted that it had refused to pay same. As affirmative defenses, Safeco alleged that its insured had not complied with the terms of the insurance contract as a condition precedent for liability under it and had not given assistance and cooperation as specifically required as a condition precedent under the terms of the policy. The answer further alleged that Francis did not receive summons and complaint or actual notice of the pendency of a suit against him and, therefore, did not so advise Safeco.

A jury was waived by the parties and the case was submitted to the trial court sitting as a jury. As already indicated, the trial court rendered judgment in favor of Safeco primarily on the grounds as stated by the court as follows:

“The Court is of the opinion that Arkansas’ long-armed statute permitting service and sometimes referred to as the ‘Non-resident Motorists Service’ requires utmost diligence upon the part of the plaintiff to insure notice of the pendency of the suit. Halliman v. Stiles, 250 Ark. 249, wherein the Court stated ‘Appellees did not demonstrate that sufficient inquiry was made in attempting to ascertain appellant’s last known address and thereby deprived him of‘reasonably probable’ actual notice, consistent with due process.’
Our courts have uniformly held that a diligent effort of an actual notice must be afforded unless there is a strong showing that there is a deliberate, frustrating, evasive, absentee defendant, and for the Court to find that the defendant Francis was conducting an evasive action would require the Court to speculate. As the Court feels bound to hold for the defendant for this reason, the other issues raised will not be decided.”

On appeal to this court M.r. Morphew sets out his assignments of error in three points designated as follows:

“1. An injured plaintiff, after obtaining a judgment against an insured defendant, is entitled to proceed directly against the defendant’s liability insurance carrier to collect on the judgment.
2. The defendant, Safeco Insurance Company of America, having knowledge of the plaintiff’s suit against its insured, Thomas Melvin Francis, was obligated to defend Thomas Melvin Francis and its failure to do so obligates the defendant to pay any judgment rendered against its insured.
3. The cause of action against Safeco was grounded on a valid judgment and an insurance company which has notice of an action against its insured and fails to defend is bound by the judgment as to issues which were or might have been litigated therein.”

All three of these assignments are predicated upon the assumption that Morphew had obtained a valid judgment on valid service against Safeco’s insured driver Mr. Francis, and Safeco was directly liable to Mr. Morphew for the payment of thejudgment under its insurance contract and under the law.

The entire question on this appeal turns on whether there was good and valid service on Francis. If there was no valid service on Francis, there could be no valid and enforceable judgment against him; and, of course, a void and unenforceable judgment against Francis, could not be enforced against him or his liability insurance carrier. We are of the opinion that thejudgment against Francis was void and unenforceable against Safeco.

In the first place under the terms of its contract of record, Safeco only agreed “to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages. ...” The policy further contained a provision as follows:

“6. Action Against SAFECO — Liability section: No action shall lie against SAFECO unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and SAFECO.” (Emphasis added).

It must be remembered that Safeco’s obligation and liability sounded in contract and were primarily to the automobile owner Vanderburg and the driver Francis. We deem it unnecessary to discuss the appellant’s assigned errors in detail because we agree with the appellee that the judgment against Francis could not support a cause of action against Safeco because the judgment against Francis was void for lack of service upon him. Morphew’s attorneys properly followed the statutory steps in attempting to obtain service on Francis under Ark. Stat. Ann. § 27-342.1 (Supp. 1973) which provides for the method of service on nonresident motorists, and resident motorists who subsequently absent themselves physically from the state. This statute is in derogation of the common law and must be strictly construed. Jenkins v. Hill, 240 Ark. 197, 398 S.W. 2d 679; Halliman v. Stiles, 250 Ark. 249, 464 S.W. 2d 573.

The record is clear that Francis was residing in Arkansas when the collision occurred and there is no evidence in the entire record that he has ever absented himself from this state. The circumstantial evidence, however, points to the contrary. All inquiries were made and leads were followed up in Texarkana, Arkansas, and all notices were mailed to his Texarkana, Arkansas, address. As a matter of fact, it was not even alleged in pleadings that Francis was a non-resident or that he had absented himself from this state. Such allegation at least was essential to make the provisions of the nonresident motorist act applicable. Webb v. Strait, 214 Ark. 890, 218 S.W. 2d 722.

The purpose of the statute was not to search out or fix service on residents of this state who simply cannot be found and personally served with process in the conventional manner. It is clear from the wording of the statute, as well as from logic and reason, that the purpose of such statute is to perfect service of process on residents of other states who have made themselves amendable to the laws of this state through the operation of their motor vehicles on the highways of this state; and, for the service of process on citizens of this state who have become liable to process in this state, and then absented themselves from this state beyond the reach of the conventional service of process.

There are good, practical, as well as legal, reasons why Safeco should not have entered Francis’ appearance and attempted to defend him on the service attempted in this case. Assuming that Safeco could have entered Francis’ general appearance, and did so, by filing an answer for him under the service had in this case, it is not difficult to visualize the complications that could arise if Francis should be in a hospital in this state waiting for his condition to improve before filing his own complaint for personal injuries.

The judgment is affirmed.


source: Caselaw Access Project

author: CONLEY Byrd, Justice.

license: Public Domain

text:
    Daniel MERCER v. STATE of Arkansas
    CR 74-46
    510 S.W. 2d 539
    Opinion delivered June 24, 1974

      Donald Goodner, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen., for appellee.
   CONLEY Byrd, Justice.

Appellant Daniel Mercer was charged with involuntary manslaughter allegedly arising from the operation of his vehicle in a willful and wanton manner. To reverse his conviction upon a jury verdict, he relies upon the following points:

“I. The court erred in refusing to dismiss the case and in allowing the matter to be submitted to the jury.
II. The court erred in refusing the defendant’s requested instruction as to acts committed by misfortune or accident.
III. The court erred in overruling the appellant’s motion to suppress evidence of the chemical test of the appellant’s blood.”

POINT I. To sustain the action of the trial court in submitting the case to the jury the State makes the following argument:

“The testimony adduced at the trial, when viewed most favorably to appellee, reveals a 1965 Pontiac being driven by appellant was north bound on U.S. Highway No. 71. At a point approximately eight miles north of Waldron, Arkansas, appellant’s vehicle crossed a well-marked center line and sideswiped the left rear wheel of a trailer towed by a tractor driven by Marcus Eoff; a tire was blown and the light lens was torn off the trailer, throwing up a cloud of smoke and dirt. Appellant’s car continued around a curve and collided head-on with a vehicle driven by Bert Berkshire. The second collision occurred entirely in the Berkshire lane of traffic. Berkshire was killed by the impact and appellant Mercer suffered multiple injuries. Several beer bottles were found broken in the interior of the Mercer vehicle; a chemical test revealed Mercer was under the influence of alcohol at the time of the accident.”

We cannot find in the record any evidence to sustain the State’s contention that appellant “crossed a well-marked center line” before he sideswiped the trailer driven by Marcus Eoff. Trooper Ira Green described the scene of the collision as occurring “. . . nine miles North of Waldron, Highway 71, at the area of the accident, the road runs generally east and west and there was a curve to the North. ...” The truck driver Mr. Eoff testified that he had appellant’s vehicle in view a hundred yards or so before the collision with his truck. During that time he was not exactly watching appellant’s vehicle but was watching the road. His direct testimony is as follows:

“Q. Alright, now did anything happen there as you met him?
A. Well, he just side-swiped the back of my trailer, blowed out a tire and knocked the light lens off of my trailer, but he didn’t scratch the trailer.
Q. Well, the fellow that got killed, he was following you?
A. Yes, sir.
Q. Now did the accident occur there between Mr. Berkshire and — the man that was following you and the man that sideswiped you, the defendant Mercer?
A. Yes, sir.
Q. Was there a head-on collision?
A. Yes, sir.
Q. Was the defendant over on the wrong side of the lane of traffic?
A. Well, all I could see whenever he side-swiped me, was smoke and dirt. You see, I was around the curve, I had just straightened out on the curve and he hit the other fellow as the other fellow was coming into the curve from the north side. There was so much fog and dust and smoke there, I didn’t know that he had hit the other car till I had got back about half way down there.”

The statute under which appellant was charged provides:

“If the killing be in the commission of an unlawful act, without malice, and without the means calculated to produce death, or in the prosecution of a lawful act, done without caution and circumspection, it shall be manslaughter. Provided further that when the death of any person ensues within one [1] year as a proximate result of injury received by the driving of any vehicle in reckless, willful or wanton disregard of the safety of others, the person so operating such vehicle shall be deemed guilty of involuntary manslaughter.”

We are unable to find in the record any proof to show that the proximate cause of the head-on collision with decedent’s vehicle resulted from appellant’s driving of his vehicle in reckless, willful or wanton disregard of the safety of others. There is no proof as to the lane of travel in which the collision with the trailer occurred. Since a conviction cannot be sustained upon speculation and conjecture, Ayers v. State, 247 Ark. 174, 444 S.W. 2d 695 (1969), it follows that the trial court erred in overruling appellant’s motion for a directed verdict.

POINT II. Since the alleged error in refusing to give appellant’s requested instruction upon misfortune or accident will not necessarily arise upon the same evidence on a new trial, we need not reach that issue on this appeal.

POINT III. The record shows that the investigating officer at the scene of the collision requested that blood be drawn from appellant and an alcohol test run. The record also shows that appellant was taken to the hospital immediately after the accident where he spent several weeks recuperating from the injuries he received in the collision. The blood sample taken showed an alcoholic content of .15% of one percent.

To suppress this evidence appellant makes two contentions. The first is that it amounts to an unlawful search and seizure. Our legislature recognizes that one who drives an automobile on the highways of this state gives an implied consent to the taking of such tests, Ark. Stat. Ann. § 75-1045 (Repl. 1957). A number of other states have similar laws. The validity of such laws was upheld in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). Consequently, we find no merit in the contention.

Appellant’s next contention is that the evidence should be suppressed because he was not arrested before the sample was taken as required by Ark. Stat. Ann. § 75-1045 (Repl. 1957). We find no merit in this contention. The record clearly shows that the officer saw enough at the scene of the collision to warrant an immediate arrest of appellant for driving while intoxicated. Since appellant admits that his condition at the time was such as to require hospitalization and that he remained therein for several weeks, it would appear that because of the officer’s benevolence, he should be estopped from asserting that an arrest was a prerequisite to the taking of the blood sample. Furthermore, it would be absurd and ridiculous to hold that an officer would have to be so inhumane as to invariably arrest a person teetering on the brink between life and death before his blood alcohol content would be admissible in evidence. On the whole record, we cannot say that the trial court erred in not suppressing the evidence.

Reversed and remanded for new trial.


author: Frank Holt, Justice.

text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE Company v. J. M. PUMPHREY
    74-51
    510 S.W. 2d 570
    Opinion delivered June 24, 1974

      Laser, Sharp, Haley, Young & Boswell, for appellant.

      John W. Cole, for appellee.
   Frank Holt, Justice.

Appellant issued to appellee its automobile liability insurance policy which included uninsured motorist coverage. Appellee was injured when his car collided with one driven by an uninsured motorist. A jury awarded appellee damages and on appeal the only contention for reversal is that the trial court erred in permitting appellee’s treating physician to testify that nothing in a written report of an examination made by another doctor was inconsistent with the treating physician’s testimony as to appellee’s injuries.

The treating physician, a general practitioner, referred appellee to a bone specialist who made the requested examination and forwarded his written report to his fellow doctor. At trial the court properly sustained appellant’s objection tc the treating doctor’s testimony as to what the specialist’s report “stated.” Neither the communication to the treating physician nor its contents were admissible in evidence since the specialist was not present to testify and subject to the test of cross-examination. New Empire Ins. Co. v. Taylor, 235 Ark. 758, 362 S.W. 2d 4 (1962). However, even though what the written report “stated” was held to be inadmissible, the treating physician was then permitted to testify that the written report forwarded to him concerning appellee’s injuries was not inconsistent with his own testimony. Unquestionably it would be hearsay had the witness attempted to testify that, based upon what the specialist told him, the specialist’s report was not inconsistent with his own. We are constrained to hold that the approach allowed at trial is impermissible inasmuch as it was doing indirectly what could not be done directly, i.e., a circumvention of the hearsay evidence rule. Robinson v. State, 255 Ark. 485, 500 S.W. 2d 929 (1973). In the case at bar, the procedure denied the appellant the right to subject the absent doctor to cross-examination as to his written report to the physician-witness. Furthermore, the testimony that the specialist’s written examination report was not inconsistent with the treating physician’s finding made it possible to present that argument to the jury which would bolster and corroborate the opinion of the physician-witness. As was said in New Empire Ins. Co. v. Taylor, supra, “*** there was nothing to prevent [appellee] from either taking the deposition of the [absent doctor] or having him present in the court room to testify” which would have given the jury the benefit of his expert opinion. As indicated, we must agree with the appellant that the procedure was impermissible and prejudicial.

Neither can we agree with the appellee that the written report made by the specialist and forwarded to the treating physician comes within the purview of Ark. Stat. Ann. § 28-928 (Repl. 1962) which permits the admissibility of writings when made in the regular course of a business. We do not interpret the business record statute as being intended by the legislature to encompass such a communication as in the case at bar.

Reversed and remanded.


author: FRANK Holt, Justice.

text:
    John Arthur BOWDEN v. STATE of Arkansas

      CR 74-6

    510 S.W. 2d 879
    Opinion delivered June 24, 1974

      Harold L. Hall, Public Defender, by: John W. Achor, Chief Dep. Public Defender, for petitioner.

      Jim Guy Tucker, Atty. Gen., by: Robert S. Moore Jr., Asst. Atty. Gen., for respondent.
   FRANK Holt, Justice.

The petitioner, by a writ of certiorari, seeks a review of the validity of a search and seizure warrant issued by the circuit court at respondent’s request. In approving the search warrant, after an evidentiary hearing, the trial court suggested and permitted the petitioner sufficient time to apply to this court for a temporary stay which we granted. This case is one of first impression. The area of the search is the lower part of the petitioner’s spinal canal where the object of the search, a bullet, is lodged. Petitioner is a suspect in a robbery-murder. He fits the description of one of two men seen fleeing the scene of the crime. One ran bent forward clutching his stomach, apparently wounded. Within a few minutes an unidentified individual brought petitioner to a local hospital. He was suffering from a stomach wound. An x-ray revealed that a bullet resembling a .38 caliber had come to rest in his spinal canal. The deceased had fired a .38 caliber pistol at the robbers. Petitioner has denied complicity to the officers and told them he had suffered a .22 caliber gunshot wound in a gambling game.

Petitioner first asserts that the search warrant is constitutionally impermissible on the basis that it constitutes an unreasonable search and seizure in contravention of the Fourth Amendment of our United States Constitution. That amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ....

The identical provision is found in our Ark. Const. Art. 2, § 15 (1874). The standard by which a state can conduct reasonable Fourth Amendment searches is delineated in Schmerber v. California, 384 U.S. 757 (1966). There the issue was whether the taking of a blood sample from the defendant without his consent was admissible in evidence against him. The purpose was to determine the state of intoxication. There the United States Supreme Court held the evidence was admissible and met the Fourth Amendment test of reasonableness since that minor intrusion into the body was an effective means of determining intoxication, imposed no risk, trauma, or pain and was performed in a reasonable manner (a needle) in the hospital by a physician. However, the Schmerber decision issued a restrictive warning in clear and unmistakable language articulating the permissible extent of an intrusion or invasion of the human body to secure evidence. The court said:

That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions. (Emphasis added.)

The Fourth Amendment requirements for such a procedure as was there prescribed are further bolstered by a fundamental due process consideration that “. . . . inescapably imposes upon this court an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English speaking peoples even toward those charged with the most heinous offenses.” Malinski v. New York, 324 U.S. 401 (1945), cited in Rochin v. California, 342 U.S. 165 (1952). in Rochin, petitioner swallowed two narcotic capsules as officers approached him. After an unsuccessful manual attempt to remove the capsules from petitioner’s throat, his stomach was pumped at a hospital against his will. The evidence was held admissible at trial. In reversing, the court characterized the procedure as offensive to “even hardened sensibilities” and “too close to the rack and the screw to permit of constitutional differentiation.” There the late Mr. Justice Frankfurter analogized this method of search and seizure to that of coerced confessions by saying:

Coerced confessions offend the community’s sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society.

Within the framework of the Fourth Amendment and due process restrictions, we turn now to the propriety of an operation for the removal of a bullet from the human body where the individual objects. Two state jurisdictions have addressed the matter. Indiana appears to flatly reject the procedure, relying on Schmerber and Rochin, as being prohibited by the Fourth Amendment and due process even if the operation would only require a local anesthetic to remove the bullet or metalic fragments lodged in the flesh of the buttocks of a felony murder suspect. Adams v. State, 299 N.E. 2d 834 (Ind. 1973), cert. denied, 94 S. Ct. 1452 (February 19, 1974). Georgia allowed the operation where a medical examination determined no danger to life or health was involved since the bullet could be removed in no more than fifteen minutes with a local anesthetic. Creamer v. State, 229 Ga. 511, S.E. 2d 350 (1971). Creamer was reluctantly followed in Allison v. State, 129 Ga. App. 364, 199 S.E. 2d 587 (1973), where the evidence was uncontradicted that the bullet could be removed without danger to life or limb. In Creamer the bullet was lodged in the fat, subcutaneous area of the right side of the chest, within the area of the muscle. In Allison the bullet was lodged in defendant’s right side just below the skin.

In the case at bar, at the evidentiary hearing two doctors testified about the required surgical procedure to remove the bullet from the petitioner who had remained in the hospital under their observation. They located the bullet in the lower spinal canal. Both agreed that surgical removal could cause a worsening of petitioner’s condition due to the involvement of spinal nerves. A general anesthetic would be required. Although both doctors recommended the removal of the bullet, the opinion was also expressed that a fatal risk was involved by surgical intervention. Each doctor described the operation, medically, as a “major intrusion” into the human body.

We are not insensitive to the strong showing of petitioner’s involvement presented by the state. However, it is our appellate responsibility to maintain an awareness of the potential misuse which could arise if we approved such a procedure which so clearly is contrary to the mandate in Schmerber and Rochin. In applying the requirements of Schmerber, in the case at bar, we hold that the issuance of the search warrant does not meet the stringent standard of reasonableness there enunciated. It is uncontroverted that the proposed operation constitutes medically a major intrusion into the petitioner’s body involving trauma, pain and possible risk of life even when performed in a proper medical environment with the most careful and skilled attention. The medical testimony most favorable to the state is that the risk of serious complication of petitioner’s injury by removal of the bullet at least equals the risk of such complication with the bullet left in place. Other testimony was that there was a greater percentage of risk of complication in removal of the bullet than there would be if it were not removed. Just as coerced confessions are inadmissible evidence because they are offensive to a community’s sense of fair play and decency and our American jurisprudence, it follows that a substantial intrusion into a defendant’s body, without his consent, involving pain, trauma and risk of serious complications, is equally offensive to due process standards as well as the test of reasonableness required by the Fourth Amendment and also the same provision in our Arkansas Constitution. Therefore, it becomes unnecessary to discuss petitioner’s other contentions for quashing the search and seizure warrant.

The temporary stay is made permanent and the warrant is quashed.

      It is interesting to note the similarity of the workmen’s compensation test for discontinuing benefits when a claimant refuses surgery. See, 1 Larson, Workmen’s Compensation Law § 13.22 (1972) and cases cited therein.


author: Harold Sharpe, Special Justice. John A. Fogleman, Justice,

text:
    Jimmy (Red) JONES, Nancy J. HALL, Auditor and Treasurer, respectively for the State of Arkansas, V. T. FLETCHER, et al v. Roger MEARS and Bob SCOTT
    74-49
    Opinion delivered June 24, 1974
    [Rehearing denied July 22, 1974.]

      Smith, Williams, Friday, Eldredge & Clark, by: William J. Smith and Paul Benham III, for appellants.

      U. A. Gentry and Herbert C. Rule III, for appellees.

      James C. Cole, and Gore, Cladouhos & Brashares, by: Sarah C. Carey, Washington, D.C., for Amicus Curiae, Citizens Conference on State Legislators.

      Henry Woods, Attorney for Amicus Curiae Ad Hoc Committee on Legislative Reorganization.
   Harold Sharpe, Special Justice.

This is a taxpayer’s action challenging the constitutionality of Act 274 of the General Assembly of 1971 and Act 2 of the General Assembly of 1973.

Act 274 authorizes the members of the General Assembly to obtain reimbursement for actual, reasonable, and necessary expenses incurred by the members in performing activities which are directly connected with and incidental to their official duties during the interim period between legislative sessions. The Act fixes an escalating maximum as follows: $150.00 per month for the 1971-72 fiscal year, $200.00 per month for the 1972-73 fiscal year, $250.00 per month for the 1973-74 fiscal year.

Act 2 of 1973, appropriates the necessary funds to defray the expenses of the Senate of the 69th General Assembly, and reimburse the Senators as provided in Act 274.

Appellee taxpayers filed this action alleging that Act 274 of 1971 and Act 2 of 1973 are void as an effort to make an allowance to the legislators, thereby increasing their salaries in violation of Amendment 48 to the Arkansas Constitution. We agree with the following facts as found by the Trial Court: Senator V. T. Fletcher received payment of the following sums under authority of Act 274 of 1971, from an appropriation made by Act 798 of 1971: $150.00 per month for the month of July, 1971 through January, 1972, $150.00 per month for the months of April through June, 1972; and $200.00 per month for the months ofjuly through December, 1972, inclusive; a total of $2,950.00. These payments were made to Senator Fletcher as a result of his filing with the Secretary of the Senate his statements of interim expenses incurred on a monthly basis. These statements were not accompanied by supporting papers showing that said expenses claimed had been incurred in the transaction of official duties required by law. Senator Fletcher kept no records itemizing individual expenses for which reimbursement was claimed.

On January 10, 1973, each of the Defendant Senators received a warrant in the amount of $600.00 for postage, telephone and telegraph expense; $1200.00 for per diem expense and $1800.00 for contingency expenses, issued under authority of Act 2 of 1973. The amounts paid to each of the Defendant Senators by the warrants for contingency expense in the amount of $1800.00 and postage, telephone and telegraph expense in the amount of $600.00 were paid to them before any expenses for these purposes were incurred.

Based on these findings of fact, the Trial Court concluded that the members of the General Assembly had no official duties during the interim period between sessions, and that Act 274 and Act 798 of the 1971 Acts of the General Assembly were unconstitutional and void, restrained the Treasurer and Auditor of the State of Arkansas from paying warrants under the authority of Act 274 and granted judgment against Defendant Senators for the amounts received by them under the authority of the Act.

The points relied on for reversal by appellants include: (1) Act 274 of 1971 does not increase the salaries of members of the General Assembly and does not violate Amendment 48 to the Arkansas Constitution; (2) Act 2 of 1973 does not increase the salaries of the members of the Senate of the General Assembly and does not violate Amendment 48 to the Arkansas Constitution; (3) Judgment should not have been granted in favor of the State of Arkansas against the appellant State Senators for the sums each received under the authority of Act 274 of 1971 and Act 2 of 1973.

The constitutionality of Act 274 of 1971 and Act 2 of 1973, will be considered separately.

It is our opinion that Act 274 of 1971 is constitutional, and we so hold. In so holding, we restate our adherence to two fundamental rules of construction; first, that the Constitution of this State is not a grant of enumerated powers to the legislature, not an enabling, but a restraining act, and that the legislature may rightfully exercise its powers, subject only to the limitations and restrictions of the Constitution of the United States and the State of Arkansas; second, that an act of the legislature is presumed to be constitutional and will not be held by the Court to be unconstitutional unless there is a clear incompatibility between the act and the Consitution. All doubt on the question must be resolved in favor of the Act. Bush v. Martineau, 174 Ark. 214, 295 S.W. 9 (1927), and cases therein cited.

Compensation of legislators of the General Assembly of this State was originally set by Article V., Section 16, of the Constitution of the State of Arkansas. After delineating the compensation of the legislators, that Section contained the following express prohibition:

“And they shall receive no compensation, perquisite or allowance whatever, except as herein provided.”

After a series of amendments, compensation was ultimately fixed by Amendment 48 to the State Constitution. Amendment 48 contains no such express prohibition. The Amendment provides:

“Salary and per diem allowance - mileage - The members of the General Assembly shall receive as their salary, the sum of $1200.00 (twelve hundred) dollars per annum, except the Speaker of the House of Representatives, who shall receive his salary of $1350.00 (thirteen hundred and fifty dollars) per annum, with such salaries to be payable in equal monthly installments; and in addition to such salary, the members of the General Assembly shall receive twenty dollars ($20.00) per day for each day the General Assembly is in regular session, and shall receive five cents ($0.05) per mile for each mile traveled in going to and returning from the seat of government over the most direct and practicable route; and provided, further, that when said members are required to attend an extroardinary session of the General Assembly, they shall receive an addition to salary herein provided, the sum of six dollars ($6.00) per day for each day they are required to attend, and mileage at the same rate herein provided.”

Appellees cite the case of Ashton v. Ferguson, 164 Ark. 254, 261 S.W. 624 (1924), for the proposition that Act 274 is unconstitutional. We emphasize that Ashton v. Ferguson, was decided prior to the adoption of Amendment 48, and under a constitutional provision containing the prohibition above cited. Our interpretation of the absence of that prohibition in Amendment 48 is succinctly stated in Berry v. Gordon, 237 Ark. 547, 865, 376 S.W. 2d 279 (1964):

“The Ashton case simply ruled that members of the legislature were not entitled to allowances prohibited by the Constitutional provisions in effect at that time. Those constitutional provisions have been repealed.”

Inasmuch as there is no constitutional prohibition against the reimbursement granted by Act 274, the Act does not violate the Constitution of the State of Arkansas.

We agree that the evidence elicited from Senator Fletcher at the trial level concerning the incurring of the reimbursed expenses in his capacity as a legislator during the interim period is border line, but officers of the State are cloaked with the presumption that their actions are lawful, correct, and in good faith and sincerity of purpose in the execution of their duties. Rockfeller v. Hogue, 244 Ark. 1029, 429 S.W. 2d 85 (1968). Appellees have not overcome this presumption by showing that Senator Fletcher did not actually have legitimate reimbursable expenses in excess of the amount claimed. However this Court could countenance no claim which appeared to be a sham to evade the constitutional limitation on compensation.

We also hold Act 2 of the General Assembly of 1973 constitutional as adopted. However, the application of the provision to the facts in this case does not meet with the requirement of allowing reimbursement only for expenditures actually incurred. The evidence is clear that on January 10, 1973, each of the Defendant Senators received a warrant in the amount of 1600.00 for postage, telephone and telegraph expenses; $1200.00 for per diem expense, and $1800.00 for contingency expense. The $1200.00 voucher for per diem expense was paid before earned, and the $600.00 voucher for postage, telephone and telegraph and the $1800.00 voucher for contingency expense were paid before these expenses were incurred. With respect to the $1200.00 per diem, we affirm the trial court’s judgment that the payment of the per diem in advance is not a fatal defect inasmuch as each Senator did serve for the session and ultimately earned the per diem.

With respect to the $600.00 voucher for postage, telephone and telegraph, and the $1800.00 voucher for contingency expense, we hold that the advance payment of these sums is violative of the Constitution of the State of Arkansas, and affirm the judgment rendered by the trial court against Defendant Senators for these sums.

Affirmed in part and reversed in part.

FOGLEMAN, J., concurs; Hdlt J., disqualified.

John A. Fogleman, Justice,

concurring. I concur in the result and all of the majority opinion except that portion which might be taken to imply that any advance payment of allowances for postage, telephone and telegraph and for “contingency” expense is violative of the Constitution of the State of Arkansas. The majority does not specify exactly which section of the Constitution would be violated by an act authorizing these payments. This leaves me without a clear understanding of the holding, although I must infer that the section contemplated is Amendment 48.

Act 2 of 1973 appropriated moneys for certain items of expenditure for the Senate. Among these are $63,000 for contingent expenses, special travel for members and other miscellaneous expenses, and $10,500 for postage for members, and $10,500 for telephone and telegraph for members. Section 3 of the act reads as follows:

That the Secretary ol the Senate of said General Assembly is hereby directed to issue vouchers evidencing all payments authorized by the General Assembly, and when such vouchers issued covering expenditures of the Senate have been approved by the Chairman of the Efficiency Committee of the Senate, the State Auditor is directed to convert such vouchers into warrants, and the Treasurer is directed to pay the sum out of the funds herein set up.

If the majority is saying that the vouchers to the individual Senators are void, and in violation of Amendment 48, as a supplement to salary, because the allowances were not disbursed as required by Act 2, then I probably could not disagree. Proper procedures for disbursement were not followed. Vouchers are to be issued to evidence payments authorized by the General Assembly. Nowhere has the General Assembly authorized payments of lump sum allowances to Senators. Vouchers issued under Act 2 are for expenditures of the Senate. Nowhere has the General Assembly authorized advances in anticipation of expenditures which have not been made and may never be made.

It was admitted that warrants were received by each of the Senators who is a party to this action for $600.00 for telephone, telegraph and postage and for $1800.00 for “personal services.” The item of personal services is not mentioned anywhere in Act 2, and if it were, an appropriation for that purpose would be a clear violation of Amendment 48 as a salary supplement. This is unimportant, however, because these Senators did actually claim that the disbursement was for “contingency” expenses which I take to fall under the appropriation for contingent expenses, special travel for members and other miscellaneous expenses. At any rate, I can find no legislative authority for disbursements of these amounts as it was made. For this reason alone, the judgments for their recovery must be sustained, even though it might possibly be said that, when disbursed without such authority, such payments were a salary supplement in violation of Amendment 48.

It would seem that it would not be necessary, and I do not think it is proper, to go into the constitutionality of Act 2 itself. Courts should not and do not pass upon constitutional questions unless the answers to those questions are so necessary to a determination of the case that it cannot otherwise be decided. Missouri Pacific Ry. Co. v. Smith, 60 Ark. 221, 29 S.W. 752; Porter v. Waterman, 77 Ark. 383, 91 S.W. 754; Smith v. Garretson, 176 Ark. 834, 4 S.W. 2d 520; Honea v. Federal Land Bank of St. Louis, 187 Ark. 619, 61 S.W. 2d 436; Satterfield v. State, 245 Ark. 337, 432 S.W. 2d 472; Searcy County v. Stephenson, 244 Ark. 54, 424 S.W. 2d 369; Mobley v. Scott, County Judge, 236 Ark. 163, 365 S.W. 2d 122; Rome v. Ahlert, 231 Ark. 844, 332 S.W. 2d 809. We have even said that where the case can be disposed of without determining the constitutional question, it is our duty to do so (Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487); that constitutional questions are never decided unless necessary (Little Rock Road Machinery Co. v. Jackson County, 233 Ark. 53, 342 S.W. 2d 407); and that constitutional questions are not decided unless the case cannot be disposed of on any other ground (Bailey v. State, 229 Ark. 74, 313 S.W. 2d 388, cert. denied 358 U.S. 869, 69 S. Ct. 101, 3 L. Ed. 2d 101).

Our predominant rule was founded upon the language of Judge Cooley quoted in Missouri Pacific Ry. Co. v. Smith, supra. A part of that quotation follows:

In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet, if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it and when, consequently, a decision upon such question will be unavoidable.

In Board of Equalization v. Evelyn Hills Shopping Center, 251 Ark. 1055, 476 S.W. 2d 211, we did not reach constitutional arguments there made “in accord with our long-standing rule that constitutional issues will not be determined unless their determination is essential to disposition of the case,” citing Martin v. State, 79 Ark. 236, 96 S.W. 372 and Bell v. Bell, 249 Ark. 959, 462 S.W. 2d 837.

A compelling reason for abiding by our well established rule in this case is the desirability for avoiding unnecessary confrontations between departments of government. Furthermore, we should recognize that, even though the General Assembly is the repository of all sovereign powers not reserved by the people or not constitutionally delegated to one of the other two departments, it also has the obligation to support the Arkansas Constitution. We should presume thát it has and will, in the absence of convincing evidence to the contrary.

If we must treat the matter, I can only agree that allowances to members of the General Assembly in excess of their salaries has not been prohibited by our constitution since the adoption of Amendment 15 in 1928. Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279. I further agree that Act 2 of 1973 is not unconstitutional.

I must also agree that we could not approve the act if it were clearly a sham to evade constitutional prohibitions. It is a proper exercise of the power of judicial review of statutes to strike down legislative action when it is manifestly for the purpose of .evading the constitution and this court has not hesitated to do so. See Simpson v. Matthews, 184 Ark. 213, 40 S.W. 2d 991; Union Carbide & Carbon Corp. v. White River Distributors, Inc., 224 Ark. 558, 275 S.W. 2d 455. The legislature cannot do indirectly what the constitution prohibits it from doing directly. Cragar v. Thompson, 212 Ark. 178, 205 S.W. 2d 180; Texarkana - Forrest Park Dist. No. 1 v. State, 189 Ark. 617, 74 S.W. 2d 784. In exercising this judicial power, however, we should never assume that the legislative branch, an independent, coordinate department of government, will not uphold the constitution in the exercise of its powers. We certainly should not assume that it will attempt to evade the Arkansas Constitution. Furthermore, the courts have no power to inquire into the wisdom, advisability, expediency, or propriety of legislation not violative of the constitution. These are matters solely for consideration of the legislative department, whose responsibility to the ultimate sovereign, the people, is at least as great as that of the judicial branch. Ward v. Bailey, 198 Ark. 27, 127 S.W. 2d 272; Albright v. Karston, 206 Ark. 307, 176 S.W. 2d 421; Reed v. Hundley, 208 Ark. 924, 188 S.W. 2d 117; Fugett v. State, 208 Ark. 979, 188 S.W. 2d 641; Cook v. Arkansas-Missouri Power Corp., 209 Ark. 750, 192 S.W. 2d 210; Longstreth v. Cook, 215 Ark. 72, 220 S.W. 2d 433; Beaumont v. Faubus, 239 Ark. 801, 394 S.W. 2d 478.


author: CARLETON HARRIS, Chiefjustice.

text:
    Louise Matthews GANNAWAY, Sué Ellen HALE, Louise Harris GANNAWAY, Billy Louise STARK and Harold STARK and Sandra HAGUE v. William Byron GODWIN and Mary Charline Gannaway GODWIN
    74-68
    511 S.W. 2d 171
    Opinion delivered July 1, 1974

      Jones, Matthews & Tolson, for appellants.

      Huey and Viltitow, for appellees.
   CARLETON HARRIS, Chiefjustice.

Dr. C. E. Gannaway, a resident of Bradley County, died testate in March, 1944. Dr. Gannaway had been married twice and was the father of two sons, Files Gannaway and Claude Gannaway, by the first marriage, and the father of a daughter by the second marriage, Charline Gannaway (now Godwin). Dr. Gannaway was predeceased by Claude, who left surviving him two sons, C. E. Gannaway and Ben Gannaway. The will of Dr. Gan-naway contained a residuary clause naming the three children, heretofore mentioned, as residuary devisees and legatees, the estate of Dr. Gannaway consisting of both real and personal property. The widow, Rena Gannaway, was named executrix of the estate. As reflected by the abstract, sometime prior to July, 1972, Ben Gannaway died, survived by his widow, Louise Matthews Gannaway and a daughter, Sue Ellen Hale, and Files Gannaway died, survived by his widow, Louise Harris Gannaway, and two daughters, Sandra Hague and Billie Louise Stark, these children of Ben and Files Gannaway, along with the widows being the appellants herein.

In July, 1972, Mrs. Godwin, along with her husband, William Byron Godwin, appellees herein, instituted suit in the Bradley County Chancery Court, seeking partition of the real property owned by Dr. C. E. Gannaway at the time of his death. Appellants filed a counter-claim seeking partition of 93 shares of common stock in Schering-Plough, Inc. held by appellee, which was an increase from 6 shares of common stock which had been owned by Dr. Gannaway in Plough, Inc. After the appointment of commissioners, the real property was sold at public sale and the proceeds divided among the parties. Evidence was presented on the issue of who owned the stock, and the court held that the counterclaim of appellants should be dismissed, and the stock vested in appellee. From the decree so entered, appellants bring this appeal.

A chronological background of events that occurred would probably be helpful in a discussion of this case. On May 7, 1945, Mrs. Rena Gannaway, as executrix of the estate of Dr. Gannaway, filed her “Final Account Current” reflecting under “receipts”, the bank account held by Dr. Gan-naway at the time of his death and insurance (New York Life) payable to the estate. The receipts from these sources totaled $4,842.69. Expenditures were then shown, which included an advance to the heirs of $1,681.98. The settlement reflected that there was a balance to be divided among the heirs under section 6 of the will (the residuary clause) showing Charline to be due $438.87, Files Gannaway to be due $438.88 and Ben L. Gannaway and Claude Edgar Gan-naway, children of Claude Gannaway, to be due the sum of $219.44 each. Thereafter (though undated), each of the four people just mentioned signed a “receipt”, the amounts being as heretofore set out, as follows:

“Received of Mrs. Rena Gannaway, a Executrix of the Estate of C. E. Gannaway, Deceased, the sum of [amount inserted] in full payment and satisfaction of all monies or property due me as one of the heirs at law of the said C. E. Gannaway as my distributive share of said estate as specified in the Will of the said C. E. Gan-naway, and I do hereby discharge and release the said Mrs. Rena Gannaway, as such Executrix, from all claims for my distributive share of said estate, and from all actions, claims and demands whatsoever by reason thereof, and of any other act, cause, matter or thing whatsoever; this release in no way affecting my interest in the real estate.”

The stock remained in the possession of Mrs. Rena Gan-naway for approximately 18 years until the time of her death (1962), and has been in possession of Mrs. Godwin since that time. On February 24, 1972, Mrs. Godwin filed a petition in the Bradley County Probate Court setting out that the stock in issue was bequeathed, under the will of C. E. Gannaway, to Claude, Files, and Charline, as tenants in common; that in order to accomplish the transfer of the ownership of the stock on the corporate records, “it is necessary for this Petitioner to obtain an order of this court directing the said transfer.” Whereupon, it was prayed that the court enter an order nunc pro tunc vesting title to the stock in the three children, and further directing the transfer agent to transfer the ownership of said stock to the persons mentioned. The then probate judge entered an order in compliance with the prayer on March 1, 1972, the order stating that “Bankers Trust Company of New York, New York is hereby ordered to cause the Stock Records of said corporation to so indicate said ownership as of May 5, 1945, nunc pro tunc.” In March, 1972, Mrs. Godwin filed another petition in the Probate Court of Bradley County asking to reopen the estate of her mother to reflect that Mrs. Gannaway owned the stock here in question; that Mrs. Godwin was the sole heir of her mother and that the court should order distribution of the stock accordingly. The probate court granted the petition, and on May 11, 1972, found that the stock had been omitted in the final order of distribution and the ownership of same should be ordered vested in Mrs. Godwin. The latter was named ad-ministratrix for that purpose. These were all the transactions occurring prior to the institution of the partition suit.

Appellee, to support her claim as owner of the stock, relies upon the receipts, or releases, executed by .the other children and grandchildren of Dr. Gannaway, wherein each heir acknowledged full payment of his share in the estate and Mrs. Gannaway, as executrix, was released from all claims that each of those who signed the receipts might have against the estate. Appellants appear, to depend primarily on the petition filed by Mrs. Godwin in February, 1972 in which she asked for a nunc pro tunc order which would enable the reissuance of the stock to the three children of Dr. Gannaway. For reversal, it is asserted that the chancellor erred in not considering this petition, and the order of the Bradley County Probate Court subsequently entered. After the present case ■was submitted to the chancellor, he commented that the nunc pro tunc portion of the order was an attempt to make the probate records reflect a fact that did not actually appear to have taken place at the time of the original entry of the order of distribution, and he further stated that it was indicated during the trial that the reason for the above order was merely to effectuate transfer of record ownership in accordance with requirements of the transfer agent. Appellants say there is no evidence to support this last conclusion, and they argue that the petition for the nunc pro tunc order is an admission against interest, that is, an admission that the stock properly belonged to all heirs. It appears that the chancellor did give consideration to this evidence; be that as it may, looking at the matter de novo, we think this circumstance falls far short, when viewed together with other facts in the case, of establishing recognition of a present right in the heirs of the brothers to an interest in the stock.

Like the chancellor, we think the strongest evidence in the case is the receipts signed by all heirs. Appellants say that the receipts should not be binding because the stock was not included in the Final Account Current. Of course, it must be remembered that Dr. Gannaway’s sons and grandsons (who executed the receipts) had every right to ask for an inventory if they were dissatisfied. It is well to also recall that the Final Account Current reflects that advances had been made to the heirs. It should also be pointed out that there is no allegation of fraud whatsoever in the pleadings filed by appellants. The most important fact, however, is that the burden of proof was upon appellants to establish that the releases were obtained by subterfuge, or mistake; not a single witness testified to that effect, and, in fact, no witness testified on behalf of appellants. The receipts (or releases) themselves contain language which strongly indicates that all claims as to personal property were being released by the signers. While Mrs. Gannaway was discharged and released from “all claims for my distributive share of said estate, *** actions, claims and demands whatsoever”, the receipt concludes as follows, “this release in no way affecting my interest in the real estate.” [Our emphasis].

How could these heirs have more clearly stated that they were releasing the estate of all claims relating to personalty than to emphasize that they were not releasing their claims to the realty? In other words, it appears that a family settlement was entered into. In Bennett v. Coleman, 234 Ark. 633, 354 S.W. 2d 6, we quoted from 16 Am. Jur. Descent and Distribution § 146, page 928, as follows:

“In the construction of family agreements for the distribution of the property of intestates, the courts, while seeking the real intent of the parties as revealed in the agreement, will, in the absence of fraud or mistake, adhere strictly to the terms thereof.”

That opinion also quoted an earlier case, stating:

“Courts of equity have uniformly upheld and sustained family arrangements in reference to property where no fraud or imposition was practiced.”

In George v. Serrett, Administrator, 207 Ark. 568, 182 S.W. 2d 198, after pointing out that a receipt, although reciting a settlement in full, may be open to explanation, we then stated:

“The sole evidence tending to establish the family settlement is the releases or receipts executed by the parties in June, 1936, when they accepted from the administrator checks for sums supposed to represent their respective distributive shares in the estate. ***
“Whether the transaction assumed the dignity of a family settlement is a matter of no great importance. It is admitted that all of the heirs did execute and deliver to the administrator these receipts or releases, by which they, and each of them, accepted the sums so paid ‘in full settlement of all our interest in said estate,’ and in consideration thereof did ‘release and acquit the administrator of any further liability to us on account of our interest in said estate.’ ”

Here, too, it is admitted that all heirs executed the releases, and there is no allegation, contention, nor proof of fraud.

Finally, it is urged that the chancellor erred in admitting pleadings and orders from the Rena Gannaway estate into evidence. The trial court announced that it was not considering these exhibits and we agree that these instruments are not pertinent to the question involved, and really have no effect one way or the other. Actually, the only relevant fact shown by the exhibits is that Charline Godwin is the sole heir of Rena Gannaway.

Summarizing, our decision is based on two facts, viz-, the receipts or releases executed by the original heirs clearly denote an intention to release the estate from all claims relating to personal property, and second, the burden was on appellants to show that these releases were obtained by fraud, misrepresentation, or mistake of fact. This burden has not been met.

Affirmed.

      There was a merger between Schering and Plough in 1972.

         Martin v. Martin, 98 Ark. 93, 135 S.W. 348.


author: CaRLETON Harris, Chief Justice. Carleton Harris, Chief Justice.

text:
    James H. HERMAN, Andrew R. CHAJA and Donald LOWE v. STATE of Arkansas
    CR 74-48
    Opinion delivered July 1, 1974
    [Supplemental Opinion on Denial of Rehearing P. 864A.]

      R. W. Lasler, for appellants.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen.; Lee A. Munson, Pros. Atty., 6th District Ct., by. John Wesley Hall Jr., Dep. Pros. Atty., for appellee.
   CaRLETON Harris, Chief Justice.

On August 28, 1973, the Pulaski County Prosecuting Attorney was notified by counsel for Beaver Amusement Corporation, owner and operator of the Adult Cinema located at 310 Rock Street, Little Rock, Arkansas, that his client intended to exhibit the motion picture film “Deep Throat” in Little Rock, commencing on September 1, 1973. The staff of the Prosecuting Attorney and Little Rock Police Department were invited to an advance private showing, and counsel agreed to release the film to the police after the showing in order that a preliminary judicial determination as to obscenity could be made prior to its scheduled public exhibition. After this advance showing, the film was voluntarily given to the police by the manager of the Adult Cinema, and on the following day, was shown to Judge Joel C. Cole, Judge of the North Little Rock Municipal Court, a court of record with county-wide jurisdiction in Pulaski County. Applying the test set out in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, Cole held that the film was obscene as that term is defined in Ark. Stat. Ann. § 41-2730 (Supp. 1973). The film was then returned to Adult Cinema, and despite the holding by Judge Cole, and warnings by the Prosecuting Attorney that showing of the film would subject the employees of the theater to arrest, appellants proceeded to publicly exhibit the film to paying audiences. Appellants were arrested and charged with violation of Ark. Stat. Ann. § 41-2729 (Supp. 1973), viz., exhibition of obscene film, and upon trial before a jury in the Pulaski County Circuit Court, were found guilty, and fined $2,000 each. From the judgment so entered, appellants bring this appeal. For reversal, it is simply asserted that § 41-2729 is unconstitutional because the definition of obscenity in § 41-2730 (2) was unconstitutional on its face before judicial construction. Several sub-points are included in the contention mentioned and we proceed to a discussion of same.

It is asserted by appellants that the statute is defective on its face because it does not limit the area of proscribed material to offensive depictions of sexual conduct, and that the only standard provided by the statute is whether or not the material appeals to prurient interest; also, that the statute does not contain a provision that alleged obscene material may be redeemed because of any measure of social value. We do not agree with these arguments, and both are fully answered in Gibbs v. State, 255 Ark. 997, 504 S.W. 2d 719 (February 4, 1974). There, the appellant pointed out that Miller held that the offensive conduct must be specifically defined by the applicable state law, “as written or authoritatively construed”, and further, quoted Miller in support of his second argument as follows:

“A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.”

We disagreed with the first contention, stating:

“Appellant contends that because of this language and the words ‘sexual conduct specifically defined by the applicable state law,’ the statute must fall because it neither mentions nor defines sexual conduct. He reads Miller as requiring that the sexual conduct which is obscene be spelled out in the statute itself, wholly overlooking the provision that such conduct may be defined by authoritative construction.”

The second argument was likewise rejected in Gibbs when we said:

“We have not construed the definition of obscene material in the statute applied in this case. As amicus points out, our decision in Bullard v. State, 252 Ark. 806, 481 S.W. 2d 363, wherein we held the definition of the word ‘obscene’ in Ark. Stat. Ann. § 41-2730 sufficiently fair and comprehensive to meet the test of constitutionality, left us with sufficient flexibility for the application of Miller standards to our statute. We held in Bullard the absence of a requirement that material be ‘utterly without redeeming social value’ before it could be obscene under Ark. Stat. Ann. § 41-2729, did not render the statute constitutionally deficient, because it is not essential that a statute incorporate every constitutional nuance. Also, we are dedicated to the proposition that we must give an act a construction that would meet constitutional tests, if it is reasonably possible to do so. Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634.”

Appellants seem to argue, under their third sub-point that the legislation is overly broad in areas affecting freedom of speech, asserting:

“A statute which regulates speech and is unconstitutional on its face cannot be saved by a narrow construction without a chilling effect on the first amendment rights of persons whose conduct is constitutionally protected.”

The first thing wrong with this argument is that we have already held that the statute here complained of constitutional in Gibbs v. State, supra, discussed in preceding paragraphs.

Also, in Miller, the United States Supreme Court pointed out:

“This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles.”

In language that is pertinent to the argument here advanced by appellants, our high court also said:

“The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a ‘misuse of the great guarantees of free speech and free press . . . . Breard v. Alexandria, 341 U.S., at 645. The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent. ‘The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people,’ Roth v. United States, supra, at 484 (emphasis added). See Kois v. Wisconsin, 408 U.S., at 230-232; Thornhill v. Alabama, 310 U.S., at 101-102. But the public portrayal of hard core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter. ***
“We do not see the harsh hand of censorship of ideas — good or bad, sound or unsound — and ‘repression’ of political liberty lurking in every state regulation of commercial exploitation of human interest in sex.”

Appellant’s third point is without merit.

It is next argued that the constitutionality of the Arkansas statute should be determined according to the judicial standards involved at the time of the offense, i.e., at the time of the showing of the film, our statute had not been specifically upheld. The offense was committed in September, 1973, and Gibbs was decided in February, 1974. The important fact to be considered is that Miller was handed down on June 21, 1973, nearly two and one-half months before appellants allegedly violated the Arkansas obscenity statute. As pointed out by appellee, since obscenity adjudication is limited to the standards announced by the United States Supreme Court as the final arbiter of obscenity law, appellants were certainly on notice that Miller could be applied to their actions.

Let it be remembered that, following Miller, other obscenity cases pending were remanded to the state courts in order that those courts might review such cases in accordance with the standards set out in Miller. The cases remanded, of course, involved actions which were consummated before the Miller determination.

Again, in the case before us, there was local court action which certainly should have had the effect of putting appellants on notice; the film was viewed by the municipal judge prior to its showing, and, under Miller standards, held to be obscene.

Finally, it is urged that an affirmation of appellants’ convictions would be the functional equivalent of an ex post jacto application of law. The primary authority cited by appellants in this respect is United States v. Lang, 361 F. Supp. 380 (C.D. Cal. 1973). Lang cites Bouie v. City of Columbia, 378 U.S. 347, 84 S. Ct. 1697. The latter case held that an unforeseeable judicial construction could not be applied retroactively, i.e., it could not be applied to an appeal from an arrest and conviction occurring before the construction. Bouie cited an earlier case, defining an ex post facto law as one that makes an action done before the passing of the law, and which was innocent when done, criminal; *** or that aggravates a crime, or makes it greater than it was, when committed.”

It has already been pointed out in the discussion of point four that the actions of appellants in the instant case could not be deemed “innocent”; to the contrary, ample warning had been given, both under Miller and the Order of the North Little Rock Municipal Court, that the showing of the film could be viewed as a violation of the Arkansas statute. The rationale argued by appellants was specifically rejected in United States v. Marks, 364 F. Supp. 1022 (1973) by the United States District Court (E.D. Ky.), where the court said:

“It should initially be noted that the Ex Post Facto Clause is intended to apply to statutory enactments, not judicial construction. Frank v. Mangum, 237 U.S. 309, 35 S. Ct. 582, 59 L. Ed. 969 (1915); United States ex rel. Almeida v. Rundle, 3d Cir., 383 F. 2d 421 (1967), cert. denied 393 U.S. 863, 89 S. Ct. 144, 21 F. Ed. 2d 131 (1968). Although Bouie v. City of Columbia, 378 U.S. 347, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964), did hold that a retroactive application of a court interpretation may offend the Due Process Clause, it is evident that the factors present in the obscenity area render that case easily distinguishable; the Bouie upholding should be applied only to decisions which are ‘ “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue. . . ” Id. at 354, 84 S. Ct. at 1703. As admitted by the defendant, the previous uncertainty in the realm of obscenity has only been settled by the recent Supreme Court decisions. The Miller group did not create a new definition of illegal conduct, but merely clarified earlier concepts of obscenity of which the defendants were constructively aware. Rosen v. United States, 161 U.S. 29, 16 S. Ct. 434, 40 L. Ed. 606 (1896); Nash v. United States, supra; United States v. Wurzbach, supra. Further, the Court’s action in remanding Miller and its accompanying cases to the lower courts for re-evaluation in light of the clarified standards intimates that the use of the Miller standard in the case at bar is entirely proper; prospective application would have been decreed if constitutional violation had been feared. ”

Summarizing our views with regard to the arguments set forth in points four and five, we think it is obvious that appellants are in no position to contend that they innocently exhibited the film to the public, or that they were surprised by the application of the Miller standards to their prosecution.

For the reasons heretofore set out, the judgments are affirmed.

It is so ordered.

Supplemental Opinion on Denial of Rehearing delivered September 16, 1974

Constitutional law — due process — validity of obscenity statute. —The obscenity statute could not be held to lack fair notice as to proscription or deny due process guaranteed by the Fifth Amendment because of being too vague to support a conviction where judicial construction of the statute did not create new definitions of illegal conduct but merely clarified prior conceptions of obscenity making the meaning of the statute more definite in its application to obscenity prosecutions.

Carleton Harris, Chief Justice.

On rehearing, appellants cite the decision of the New Hampshire Supreme Court in State v. Harding, N. H., 320 A. 2d 646, upholding the constitutionality of the New Hampshire obscenity law, but dismissing the conviction, holding that the defendant had not had sufficient warning because the statute had not previously been construed by the New Hampshire court. They also cite Miranda v. Hicks, decided on June 4, 1974, 15 CrL. 2309, where the court invalidated the California obscenity statute which had been construed in the light of Miller, holding that the prohibition of hard core pornography in materials containing “graphic depictions of sexual activities” did not provide fair notice to those who would depict sexual activity. The court held that the term “hard core” pornography was no more precise than the term “obscenity” and the language “graphic depiction of sexual activity” did not meet the specificity test. We do not find these cases persuasive for on June 24, the United States Supreme Court in Hamling, et al v. United States, — U.S. —, 94 S. Ct. 2887, 4 L. Ed. 2d 590 (1974) involving a conviction for mailing and conspiring to mail an obscene advertising brochure, cited Roth v. United States, 354 U.S. 476 (1957), mentioning that it found in that case that the statute did not deny the due process guaranteed by the Fifth Amendment because “too vague to support conviction for crime”, again reiterating that finding, and then stating:

“Nor do we find merit in petitioners’ contention that cases such as Bouie v. City of Columbia, 378 U.S. 347 (1964), require reversal of their convictions. The Court in Bouie held that since the crime for which the petitioners there stood convicted was ‘not enumerated in the statute’ at the time of their conduct, their conviction could not be sustained. Id., at 363. The Court noted that ‘ a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language.’ 378 U.S., at 352. But the enumeration of specific categories of material in Miller which might be found obscene did not purport to make criminal, for the purpose of 18 U.S.C. § 1461, conduct which had not previously been thought criminal. That requirement instead added a ‘clarifying gloss’ to the prior construction and therefore made the meaning of the federal statute involved here ‘more definite’ in its application to federal obscenity prosecutions. Bouie v. City of Columbia, 378 U.S., at 353. Judged by both the judicial construction of § 1461 prior to Miller, and by the construction of that section which we adopt today in the light of Miller, petitioners’ claims of vagueness and lack of fair notice as to the proscription of the material which they were distributing must fail.”

Petition denied.

      “(2) ‘Obscene’ means that to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”

        Lang was specifically rejected by the court which noted four contrary decisions to thaf holding.

      This case was decided one week before the present opinion was handed down though our opinion had already been written. Since Hamling was not in conflict with Marks, but rather, confirmed our reasoning, the opinion was handed down without further change.


author: George Rose Smith, Justice.

text:
    ARKANSAS SAVINGS AND LOAN ASSOCIATION BOARD et al v. CENTRAL ARKANSAS SAVINGS & LOAN ASSOCIATION
    74-56
    510 S.W. 2d 872
    Opinion delivered July 1, 1974

      Smith, Williams, Friday, Eldredge & Clark, by: William L. Patton Jr. and Hermann Ivester, for appellants.

      Lester and Shults, by: Edward Lester, for appellee.
   George Rose Smith, Justice.

In 1973 the appellee, Central Arkansas Savings & Loan Association, applied to the Arkansas Savings and Loan Association Board for a charter to begin business as a savings and loan association in the city of Conway. The application was resisted by the Security Savings & Loan Association of. Conway, which had been chartered in 1961.

A three-member quorum of the five-member Board considered the application after an extended hearing. By a 2-0 vote the Board denied the application, finding, in the language of the statute, that there is not a public need for the proposed association and that the volume of business in the area is not sufficient to indicate a successful operation. Ark. Stat. Ann. § 67-1824 (Repl. 1966). On appeal the circuit court set aside the Board’s decision, finding it to be without substantial supporting evidence.

At the outset the appellee contends that the Board erred in failing to make specific findings of underlying facts, as required by this provision of the Administrative Procedure Act: “A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.” Ark. Stat. Ann. § 5-710 (Supp. 1973). The appellee argues that the Board’s failure to make the required statement of underlying facts justified the circuit court in reviewing the evidence and determining that there was no basis for the Board’s conclusion. The appellants (the Board itself and the protesting association) describe the Board’s error as “minor and inconsequential” and insist that the appellee cannot raise the point in this court, because it was not raised in the circuit court.

We cannot agree entirely with either position. To begin with, the requirement that the underlying facts be concisely and explicitly stated is primarily for the benefit of the reviewing courts and therefore cannot be waived by a litigant. Moreover, the Board’s failure to comply with the statute is not a minor and inconsequential matter.

Professor Davis summarizes the law accurately in § 16.05 of his Administrative Law Treatise (1958):

The practical reasons for requiring administrative findings are so powerful that the requirement has been imposed with remarkable uniformity by virtually all federal and state courts, irrespective of a statutory requirement. The reasons have to do with facilitating judicial review, avoiding judicial usurpation of administrative functions, assuring more careful administrative consideration, helping parties plan their cases for rehearings and judicial review, and keeping agencies within their jurisdiction.
* * * *
The language of Mr. Justice Cardozo, in a case in which the Court could do no more than get an impression that the Commission may have acted properly, is often quoted: ‘The difficulty is that it has not said so with the simplicity and clearness through which a halting impression ripens into reasonable certitude. In the end we are left to spell out, to argue, to choose between conflicting inferences. Something more precise is requisite in the quasi-jurisdictional findings of an administrative agency. ... We must know what a decision means before the duty becomes ours to say whether it is right or wrong.’ [United States v. Chicago, M., St. P. & P. R.R., 294 U.S. 499 (1935).]

Equally pertinent to the case at hand is a statement by the Oklahoma Supreme Court in Oklahoma Insp. Bur. v. State Bd. for Prop. & Cas. Rates, 406 P. 2d 453 (1965): “The findings are insufficient because there was a failure to incorporate therein a proper and acceptable finding of the basic or underlying facts drawn from the evidence. The Board’s decision only amounts to the statement ‘We have heard the evidence. The evidence does not meet the requirements of the law. ’ This is not enough.”

The record before us is so voluminous that the appellants’ abstract runs to more than 300 printed pages. We find not only what appears to be basically factual testimony but also what appear to be conclusions on the part of witnesses. We have no way of knowing what specific facts the Board relied upon in denying the application. We are left, in Cardozo’s words, “to spell out, to argue, to choose between conflicting inferences.” We hardly need to add that the courts cannot supply the' deficiencies by weighing the evidence themselves; that responsibility belongs to the administrative agency, which sees the witnesses as they testify. Dura Craft Boats v. Daugherty, 247 Ark. 125, 444 S.W. 2d 562 (1969).

The judgment is reversed and the cause remanded, through the circuit court, to the Board for such further proceedings as may be necessary.

The Chief Justice would affirm the judgment.


author: Lyle Brown, Justice.

text:
    Wendell SHERMAN, by his Father and Next Friend, William SHERMAN v. George KEENE and Kaylor DICKERSON
    74-79
    510 S.W. 2d 870
    Opinion delivered July 1, 1974

      Hardin, Rickard & Harmon, by: Curtis E. Rickard, for appellant.

      McMillan & McMillan, by: H. W. McMillan, for appellees.
   Lyle Brown, Justice.

This suit was brought on behalf of Wendell Sherman for injuries allegedly received when George Keene, an employee of Kaylor Dickerson, appellee, inserted a high pressure hose into the rectum of Wendell Sherman and released pressured air into his body. This appeal is from a summary judgment granted Dickerson. It is contended the judgment was entered without notice and that there were material issues of fact for the jury’s consideration.

Kaylor Dickerson operated a retail gas and oil station in Saline County. It appears that Dickerson spent considerable time away from the station, leaving it in charge of an employee. On the day in question Dickerson was away. Wendell Sherman and his brother, along with some other young men, were at the station consuming cold drinks. George Keene is alleged to have suddenly grabbed Wendell Sherman and inserted the air hose as heretofore related.

The allegations against Kaylor Dickerson were not based on respondeat superior. Seven acts of negligence were alleged against Dickerson. They were: (1) failure to adequately supervise his employees, (2) failure to properly instruct them in the proper behavior in the performance of their duties, (3) failure to instruct them in the proper treatment of customers, (4) failure to provide a safe place of business for the customers, (5) hiring an individual whom he knew or should have known would tease or torment invitees on the presmises, and (7) leaving his premises in control and in charge of one who permitted card playing and other frivilous activities to take place on the premises. Allegation No. 6 is repetitive.

Kaylor Dickerson filed an answer in the form of a general denial. Dickerson then propounded sixteen interrogatories to appellant and they were timely answered. Dickerson then took the discovery depositions of all of appellant’s witnesses, Ray Carter, Joey Sherman, Wendell Sherman, and William Sherman. The foregoing documents were filed and accompanied by a motion by Dickerson for summary judgment. The only instrument filed by appellant in response to the motion for summary judgment was a short unverified brief. Two weeks later the trial court granted summary judgment.

One week after the granting of the summary judgment appellant filed an instrument styled “Objections and Exceptions”. This instrument pointed out that the judgment was granted without a formal hearing. It was also argued that ample evidence for possible liability was reflected in the discovery depositions.

We now consider the first point for reversal, namely, that the court should have conducted a hearing on the motion for summary judgment. We are cited to Ark. Stat. Ann. § 29-211 (Repl. 1962). Subsection (c) provides that “The motion shall be served at least 10 days before the time fixed for the hearing”. Appellant does not claim he was in any way prejudiced by failure of the court to fix a date for formal hearing. Appellant had adequate timely access to the depositions. Appellant thereafter filed a response to the motion and referred to the contents of the depositions in support of his argument against granting the motion for summary judgment. The prayer of that motion was that the summary judgment be denied. No motion was ever made for a formal hearing. We conclude that the point is without merit.

On the second point we hold that the trial court acted properly in granting the summary judgment. We are not unmindful of the rule cited by appellant to the effect that a summary judgment should be entered only if the proof presents no issue for the jury. Bergetz v. Repka, 244 Ark. 60, 424 S.W. 2d 367 (1968). The same authority requires us to view the evidence in the light most favorable to the one resisting the motion.

We have carefully examined the detailed abstracts of the testimony taken by discovery. We are unable to find a sub-missible issue among the seven allegations of negligence which we have heretofore enumerated. We forego a discussion of the specific testimony in that respect because it would be of negligible value as a precedent.

Affirmed.


author: J. Fred JONES, Justice.

text:
    Bobbie ROBINSON v. STATE of Arkansas
    CR 74-43
    510 S.W. 2d 867
    Opinion delivered July 1, 1974

      McArthur & Lofton, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert S. Moore Jr., Asst. Atty. Gen., for appellee.
   J. Fred JONES, Justice.

Bobbie Robinson was tried and convicted on September 13, 1973, for having in her possession a quantity of restricted drugs for purpose of sale in violation of Act 590 of the Acts of Arkansas for 1971 as amended, and she was sentenced to three years in the state penitentiary.

On appeal to this court Bobbie Robinson contends that the trial court erred by commenting on the evidence in violation of Art. VII, § 23 of the Constitution of the state of Arkansas. She also contends that the search of the automobile in which she was a passenger and the search of her person were without probable cause, unreasonable and in violation of her constitutional rights. In connection with her first assignment, she argues that the trial court commented on the evidence in the giving of instructions Nos. 7 and 8 to the jury. We must agree with the appellant on this point.

The appellant Robinson in the case at bar was tried and convicted more than four months prior to our decision in French v. State, 256 Ark. 298, 506 S.W. 2d 820 (1974), wherein we considered for the first time and disapproved the “rebut-table presumption” instruction given in the statutory language of the Controlled Substances Act, Ark. Stat. Ann. § 82-2617 (Supp. 1973). In French the charge involved was the possession of controlled substances with intent to deliver in violation of Act 67 of 1972, § 82-2617, supra, and the instruction in that case, as in the case at bar, was given in form which was virtually a verbatim recitation of the statute. We have quite often approved jury instructions when couched in statutory language (Jones v. City of Forrest City, 239 Ark. 211, 388 S.W. 2d 386; Gentry v. State, 201 Ark. 729, 147 S.W. 2d 1; Barker v. State, 248 Ark. 649, 453 S.W. 2d 413). But the difficulty encountered in French, as in the case at bar, arises from the “rebuttable presumption” language used in the statute.

The state concedes that with the exception of the type of drug involved, the instruction No. 7 in the case at bar was identical with the instruction disapproved in French, but the state argues that we should reconsider the issue and affirm the propriety of the instruction as given. The “rebuttable presumption” language, as used in the statute, has nothing whatever to do with identifying the crime or fixing the punishment, it has only to do with the burden of proof and weight of evidence.

The Controlled Substances Act, § 82-2617, supra, classifies the controlled drugs and substances into several categories and fixes penalty for the manufacture, delivery or possession with intent to manufacture or deliver any of the controlled substances. The Act then provides as follows:

“(d) Rebuttable Presumption. Possession by any person of a quantity of any controlled substance listed in this sub-section 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) [this section] of this article. 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 a controlled substance with intent to deliver in violation of Section 1 (a) and (b) of this Article.
Heroin — 100 milligrams
Opium — 3 grams
* * *
Depressant Drug — 20 hypnotic dosage units * *

Under the trial court’s instruction No. 7 it set out the violation charged as to the possession of a depressant drug. The instruction then, in virtually the verbatim language of the statute, instructed the jury that “the possession of 20 hypnotic dosage units or more shall create rebuttable presumption that such person possesses such substances with intent to deliver provided, however, that the presumption may be overcome by the submission of evidence sufficient to create a reasonable doubt that the person charged possessed a controlled substance with intent to deliver.” As already stated, the point here involved was first before us in French v. State, supra, and we find nothing in the case at bar that would justify a change from the rationale we employed in that case, wherein we said:

“The rationale of our holdings in regard to such matters is that it is improper for a court to tell a jury that a specific fact shown by the evidence is sufficient to support a certain inference, such as guilt, negligence, malice or the like.” Citing Thiel v. Dove, 229 Ark. 601, 317 S.W. 2d 121.

Consequently, we hold that the court erred in giving instruction No. 7 in the form it was given.

Instruction No. 8, as given by the court, contains language as follows:

“[I]f you find from the evidence in this case and beyond a reasonable doubt that the defendant, Bobbie Robinson, did in Howard County, Arkansas on or about July 28, 1973, possess 20 hypnotic dosage units or more of a depressant drug with the intent to deliver, or did stand by, aid, abet or assist in the possession with intent to deliver, then you will find the defendant guilty. ...”

We conclude that this instruction should not have been given in the form it was given since the number of hypnotic dosage units possessed could only refer to the rebuttable presumption as set out in the Act and as given in instruction No. 7. The accused was not charged with the possession of any particular number of drug dosage units. The number of units only came out in the course of the testimony and was important only as to intent and motive of possession, and as bearing on the statutory presumption.

We find no merit to appellant’s second contention. According to the testimony of Deputy Sheriff Gene Anderson and state Trooper Hendershott, Officer Anderson was working traffic in the area of a rodeo at Dierks, Arkansas, when he stopped the automobile in which the appellant was riding because the automobile was crossing the center line of the highway and Officer Anderson suspected that the driver was intoxicated. He radioed Trooper Hendershott for assistance and then stopped the automobile in which the appellant was riding.

According to Trooper Hendershott, Mr. Anderson had the vehicle stopped when he arrived at the scene in response to Anderson’s radio call. He said that Deputy Anderson had a white male outside the automobile talking with him and that Mrs. Robinson was still in the automobile sitting on the passenger side of the front seat. He said he observed a paper bag on the floorboard of the automobile next to Mrs. Robinson’s left leg and when he inquired as to its contents, she answered that it contained clothes and immediately picked up the bag and started stuffing some clothing into it. He said Mrs. Robinson used a constant stream of vile and profane language directed at him and Officer Anderson which indicated to him that she was under the influence of something.

Trooper Hendershott said that when Mrs. Robinson got out of the automobile at his request, she brought the paper bag with her. Both officers testified concerning Mrs. Robinson’s attitude and actions in attempting to protect the contents of the bag from inspection and from view, and we are of the opinion they were justified in believing the bag might contain a weapon as they testified. According to the testimony of the officers, as they were attempting to retrieve the bag from Mrs. Robinson for the purpose of examining its contents for a weapon, Mrs. Robinson finally slung the bag away from her. They said that when the bag fell to the ground, the bottom came out of it revealing the prohibited drugs here involved, consisting of about 196 hypnotic units.

Mrs. Robinson denied that the bag burst open as the officers testified. She said the officers poured the contents of the bag out on the ground where the drugs in question became exposed to view. She said the drugs belonged to the driver Slaten; that when she last saw them they were in a separate bag from the one she was attempting to protect from search and seizure, and she had no idea how the drugs got into the bag containing her clothes unless driver Slaten put them there while she was asleep.

According to the officers’ testimony there was really no search of the automobile or of the appellant’s person involved, and there was only an attempt made to search the paper bag after the appellant removed it from the automobile. We are of the opinion that Bobbie Robinson’s violent reaction to questioning by the officers, as testified by them, and her apparent anxiety to protect the contents of the bag from search or exposure, certainly justified the officers in concluding that there was something in the bag she was very interested in protecting from their view, so we conclude that the officers were justified under the circumstances as testified by them, in attempting to search to paper bag for weapons.

For the error above indicated the judgment is reversed and this cause remanded for a new trial.

Reversed and remanded.

      The drugs in this case consisted of approximately 196 hypnotic dosage units of depressant drug.