author: John A. Fogleman, Chief Justice. John F. Stroud, Justice,

text:
    Bennie BEED, Jr. v. STATE of Arkansas
    CR 79-229
    609 S.W. 2d 898
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980

      Thomas R. Newman, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

Appellant Bennie Beed, Jr., was found guilty of rape, aggravated robbery and kidnapping (class C) in a jury trial on June 12, 1979, and sentenced to life for rape, 50 years for aggravated robbery and 10 years for kidnapping. Appellant lists 11 points for reversal. Some of them include multiple assertions of error. We find reversible error in the jury selection and in the failure of the trial court to suppress evidence obtained by a search. In addition to these points, in this opinion we will treat only those points that will likely arise on retrial.

Appellant, under the heading of a single point, challenged the trial judge’s excusal of Buck Walker and R. F. Stewart for cause, his failure to excuse Richard Bolton for cause and the misuse of peremptory challenges by the state to exclude Negroes from jury service. Appellant says that Stewart and Walker were persons of the Negro race, and that two others of that race were excused by the state-by peremptory challenge. The record, however, does not disclose the race of the prospective jurors. Assuming, however, that appellant states the race of the jurors correctly, we find no error except as to juror Bolton. As far as this record discloses, the state’s exercise of peremptory challenges has not been shown to be systematic. The mere fact that the state peremptorily challenged all the Negroes on a petit jury panel does not constitute a showing that appellant’s constitutional rights were violated. Rogers v. State, 257 Ark. 144, 515 S.W. 2d 79; Brown v. State, 248 Ark. 561, 453 S.W. 2d 50; Jackson v. State, 245 Ark. 331, 432 S.W. 2d 876; Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965). Appellant was not entitled to any particular juror and is in no position to raise any question as to the jurors excused for cause, because he interposed no objection. Clark v. State, 264 Ark. 630, 573 S.W. 2d 622.

The excusal of Richard Bolton for cause is another matter. As the state points out in its brief, it must be considered in and of itself as a matter of law and not in juxtaposition with the excusal of other jurors. Appellant relies on Ark. Stat. Ann. § 43-1920 (Repl. 1977) which provides that a challenge for implied bias may be made where the juror is related to the person on whose complaint the prosécution was issued and Ark. Stat. Ann. § 39-105 (e) (Supp. 1979) which excludes from petit jury service any person who is prevented by any relationship from acting impartially. He points out that juror Bolton’s brother Bill was the police officer to whom the complaining witness made her original complaint, a portion of which, including the description of her assailant, was related to the jury by Officer Phillips, of the Miller County Sheriff s office, who also testified before the jury that Officer Bolton had taken the statement. The trial judge had also been informed, prior to voir dire examination of prospective jurors, by testimony at pretrial hearings, that Officer Bill Bolton had assisted in conducting a “picture lineup” by presenting a folder containing six photographs, one of which was of appellant, to the victim for identification, had participated in two searches of the dwelling house in which appellant resided for evidence to be used in the trial and had developed a part of the information contained in the affidavit for the warrant on which the searches were based. There is a clear implication in the testimony of Phillips during the trial that Bolton assisted him in the entire investigation of the crimes which resulted in charges against appellant. He also told the jury that Officer Bolton assisted with the “picture lineup.” The defense in the case was alibi and mistaken identification.

On voir dire, it was disclosed that Richard Bolton had been the victim of a crime and that he had worked for the sheriff s department for two years. This juror stated that should his brother be a witness, he would not be caused to lean more heavily toward the state than toward the defendant and that it would not be embarrassing for him to discuss the case with his friends if he were on the jury and it should return a verdict of not guilty. The trial judge asked Richard Bolton if he could, withott embarrassment, serve and let the verdict speak the truth. Appellant’s challenge to this prospective juror for cause was denied. Appellant points out that he had, at the time, exhausted his peremptory challenges. He was not required to object or to save exceptions to the denial of his challenge in order to obtain appellate review. He was only required to make the court aware of the action he desired.

It is true that the question of a juror’s qualification lies within the sound judicial discretion of the trial judge and that appellant had the burden of showing the prospective juror’s disqualification. See Satterfield v. State, 252 Ark. 747, 483 S.W. 2d 171; Swindler v. State, 264 Ark. 107, 569 S.W. 2d 120. This case, however, is unlike Gammel v. State, 259 Ark. 96, 531 S.W. 2d 474, cited by the state. There the challenge was for actual bias. Although Officer Bolton did not testify, the reliability of the identification of appellant by the prosecuting attorney and the propriety of the photographic lineup conducted by Bolton and Officer Phililps were major issues in the case. Phillips testified on cross-examination that, even though there were hundreds of black males, “we” did not show any of them, except for six, to the victim because “we had our suspect.” Bennie Beed testified that he really believed that the whole matter was something like a police conspiracy to get him tried for rape, robbery and kidnapping.

Although it was established by examination of Richard Bolton that he would not be embarrassed by his brother’s connection with the case, the potential embarrassment of other jurors in weighing the evidence seems to have never been considered. If the statute on implied bias is read literally and technically, it was not Bolton’s complaint that was the basis for the institution of the prosecution. But we have not construed this section of the statute in that way. We have construed it rather liberally toward insuring the constitutional right of a defendant to a trial by an impartial jury secured by Art. 2, § 10, Constitution of Arkansas. See Swindler v. State, supra; Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670. In Swindler, we found abuse of the trial court’s discretion in not sustaining a challenge for cause to a prospective juror who was an employee of the United States Marshall’s office only because the victim of the crime was a city police officer. We also held that there was an abuse of discretion in not sustaining a challenge for cause to a member of the jury panel who had worked for the same company that employed the victim’s father for 17 years and had expressed sympathy to the father.

Even in a civil case, we held that it was an abuse of discretion for the trial court to refuse to excuse the wife of a witness, for cause, in spite of the fact that she said she would not believe him above any other witness in the case. Arkansas State Highway Comm’n. v. Young, 241 Ark. 765, 410 S.W. 2d 120. There we recognized that the statute disqualifies jurors related to a party or his attorney, but made no reference to witnesses. We followed the polestar that “justice ought not only to be fair, but appear to be fair.” There we stated the rule that where a close relative is a witness to a controverted issue in a case and the matter is brought to the attention of the trial court before the jury is sworn, it is an abuse of discretion for a trial court to refuse to strike a relative for cause. The polestar should be brighter and more clearly visible in a criminal case than in a civil one, rather than less so (see Acklin v. State, 270 Ark. 879, 606 S.W. 2d 584 (1980), particularly in view of our constitutional guarantee to an accused of trial by an impartial jury in Art. 2, § 10.

It is true that Officer Bolton did not testify; however, when we consider the role of this officer with reference to the initiation of the investigation, the search and the identification procedure, we cannot eliminate him as one on whose complaint the prosecution was instituted. Neither can we say that Richard Bolton’s answers on voir dire were sufficient to eliminate him as one who was prevented by a relationship or by circumstances from acting impartially, any more than we could do so in Young. In Young, we said:

*** It does not stretch the imagination to say that the very presence of a witness’ close relative on the jury would tend to inhibit the frank discussion necessary in a jury room for arriving at an impartial verdict — for what prudent banker or merchant on the jury, who was inclined to believe the witnesses for the Highway Commission, would care to criticize Mrs. Ragge’s husband to her face?

How could a juror in this case freely criticize the identification procedures or even the search during jury deliberations?

Failure to sustain the challenge was prejudicial error. The juror was one whom appellant was not willing to accept after he had exhausted his peremptory challenges. When a defendant has used all his peremptory challenges, before a prospective juror is called, he may only challenge that juror for cause and not peremptorily, and it is reversible error to thereafter hold a biased juror competent. Snyder v. State, 151 Ark. 601, 237 S.W. 87.

Appellant attacked the legality of a search of the dwelling house in which Bennie Beed had been residing with his mother at the time the offenses were alleged to have occurred by a motion to suppress an emerald ring seized there as evidence. The ring was identified by the victim as hers. The burden was upon the state to justify the search. Where, as here, the search is pursuant to a warrant, the state must produce the warrant and show that it was issued in compliance with the law by producing the required written evidence relied upon by the magistrate as establishing probable cause for issuance of the warrant or by following proper procedures for establishing the contents of the warrant and its supporting evidence. Schneider v. State, 269 Ark. 245, 599 S.W. 2d 730 (1980). When this is done, the burden of showing the invalidity of the warrant and its supporting documents is upon the party moving to suppress evidence seized under authority of the warrant. Schneider v. State, supra.

Although there were two search warrants issued and two entries of the dwelling house, we will concern ourselves only with the second warrant and the search made in reliance on it because the ring was seized during that search. The search was made on April 27, 1979, the day the second warrant was issued by Municipal Judge Purifoy upon an affidavit by Chief Deputy Sheriff Don Branch of Miller County. Appellant alleges that the search was unlawful because it was based upon an unlawfully issued warrant. He asserts that the affidavit on which the warrant was issued failed to disclose how the unnamed informant was reliably informed that the things sought were in the place to be searched, along with other grounds not material here.

The affidavit was sufficient as to the reliability of the informant in that it contained a statement that he had previously provided information that led to the arrest and conviction of two individuals for burglary and theft in the past. State v. Lechner, 262 Ark. 401, 557 S.W. 2d 195. The affidavit was not sufficient, however, in that it failed to disclose how the reliable informant knew that the ring and the other property described in the warrant were in the house to be searched. It was merely recited that the informant had said Bennie Beed had resided at the described premises during the time he was being sought by the officers for these crimes and that the property described was hidden in the house. The statement of this conclusion without any statement of underlying circumstances from which the informant arrived at it was insufficient to meet the test for showing probable cause for the search. Lunsford v. State, 262 Ark. 1, 552 S.W. 2d 646; State v. Lechner, supra. Denial of the motion to suppress the evidence was error.

Appellant complains that his counsel was denied the right of effective cross-examination and that the court commented on the evidence. Appellant contends that the trial judge prevented his attorney from stopping Phillips from giving hearsay testimony on cross-examination which the attorney contended was non-responsive to his question. We do not agree that the answer was not responsive to the attorney’s question: “Based on her description how did you conclude Mr. Beed to be a suspect in this case?” After the officer stated that the officers had, based on the description given them by the victim, talked to several people and received information through his investigation, appellant’s attorney interrupted the answer which we take to have been responsive and, perhaps, even admissible as an explanation of the reason the officers did what they did. Van Cleave v. State, 268 Ark. 514, 598 S.W. 2d 65 (1980). A cross-examiner is not licensed to go on a fishing expedition without accepting the hazards of such a procedure which include answers which would not be admissible as direct testimony. Arkansas State Highway Comm’n v. Russell, 240 Ark. 21, 398 S.W. 2d 201; Arkansas State Highway Comm’n. v. Fowler, 240 Ark. 595, 401 S.W. 2d 1.

Another instance of the alleged improper restriction of cross-examination occurred during appellant’s attorney’s attempt to impeach the credibility of the identification of appellant by the alleged victim. The witness had, on cross-examination, admitted there was a possibility of mistake in identification of a total stranger viewed for only a short time, that appellant was the only black man in the court, and that she could have been mistaken as to the description of her assailant she had given the officers, but stated emphatically that she was positive that Beed was her assailant, even if there were testimony that Beed was elsewhere when she was assaulted. The only way that the attorney’s next question could be interpreted as a question would have been from the inflection of his voice. The question the trial judge ruled argumentative and repetitive was: “As far as you are concerned. This man resembles your assailant close enough to be the right one?” We see no error. Ark. Stat. Ann. § 28-1001, Rule 611 (a) (Repl. 1979) gives the trial court reasonable control over the mode of interrogating witnesses so as to avoid needless consumption of time and to protect the witness from undue harassment. This does not really change the latitude of discretion heretofore vested in the trial judge in such matters.

Another instance is the attorney’s cross-examination of the prosecuting witness about evidence of appellant’s intent. The question to which the state objected as speculative and which the court found improper was: “Do you have any reason to believe that your assailant had any intention to rape you when he forced you into the car at Skaggs?” The court limited the cross-examiner to asking what was said or done, leaving the determination of intent to the jury. Because of the testimony elicited by further examination, including a statement that the prosecutrix had not known if he (the assailant) was going to rape her, we find no reversible error in the limitation of cross-examination. Error may not be predicated upon a ruling excluding evidence unless a substantial right of a party is affected. Ark. Stat. Ann. § 28-1001, Rule 103 (a) (Repl. 1979).

Appellant states that his attorney had to forego cross-examination of Officer Phillips on rebuttal “as to the time of alibi” to preclude evidence of other unrelated cases from being heard by the jury. Phillips testified that when appellant Beed surrendered, Beed had asked the officer, “About this rape deal — when did it happen?” and said that he had been taken to his girl friend’s house at about 7:30 that night by a fellow living near Mandeville and had remained there until 10:30 to 11:30. This was inconsistent with appellant’s testimony and that of the witnesses who testified on behalf of appellant. Appellant’s objection to the testimony was on the ground that the statement was not made in the presence of counsel. We do not understand how appellant’s counsel was precluded from cross-examination, except by his own tactical decision.

Appellant contends that there were several instances where the trial judge commented on the evidence to appellant’s prejudice. We do not see how the trial judge’s remarks that the question by appellant’s counsel as to the existence of any reason for her to believe that her assailant intended to rape her was speculative and that the question of intent was for determination by the jury, constituted a reprimand of counsel. The argument that permitting the prosecuting attorney to question a witness on voir dire in the presence of the jury about his presence in the courtroom after the witness had been sequestered, somehow amounted to a comment by the court indicative of a lack of credibility is not persuasive. The witness denied having heard the testimony and was permitted to testify. We do not see how appellant was prejudiced by the court’s questioning Williams about the kind of gambling he had been doing at the time about which he had testified, asking him if his statement that he and appellant had been shooting dice was made under oath and whether this had taken place in March, 1979. The witness had already testified that on Friday night, March 23, 1979, the date of the alleged commission of the crimes with which appellant had been charged, he had gone to Babe Martin’s place to gamble and that he gambled continuously at a table from the time of his arrival there, somewhere between 10:00 and 11:30 p.m. and the time of his departure at 3:30 or 4:00 a.m. Williams had also said that he went there to gamble often. He said about 30 or 40 minutes after his arrival, Beed came there and stood at the table, along with 15 to 20 others, gambling until Williams left. The trial judge’s inquiry pertained to the gambling at the place, not to Williams’ testimony about Beed’s presence. This line of inquiry should not be repeated on retrial.

There was neither an unwarranted limitation of cross-examination nor improper comment on the evidence when, after the prosecuting witness had testified on cross-examination that she and her husband, to whom she first reported the incident on which the charges were based, had separated before the alleged offense occurred and that a divorce suit was pending, the trial court sustained an objection by the state to that line of questioning and responded to a statement by appellant’s attorney that he had a right to go into the character of the prosecuting witness by saying that the fact that the witness and her husband were separated did not necessarily go to her character. The trial court’s remark simply stated the reason for sustaining the state’s objection. Appellant did not attempt to indicate how the line of inquiry reflected upon the credibility of the witness. We do not find that the collective effect of the trial judge’s remarks constituted an unmerited rebuke of appellant’s attorney as appellant now contends. The only remark that might be so construed was the trial judge’s statement permitting the objection of defense counsel to be “copiously noted of record.” The descriptive adverb should not have been used, but we take the statement to have been an expression of the trial judge’s irritation by defense counsel’s tactics rather than a reprimand and not reversible error. See Rogers v. State, 257 Ark. 144, 515 S.W. 2d 79.

Appellant advances several arguments about the admission of evidence, which we will now consider, insofar as they may affect a new trial.

During a pretrial hearing, appellant objected to admission of the photographic lineup folder which had been presented to the prosecuting witness for identification purposes. The trial judge reserved a ruling at that time but permitted introduction of the folder during the trial. Appellant’s objections here are multiple. He contends that the identification was unfairly influenced because: (1) testimony as to the date it was conducted is “self-contradicting;” (2) the photographs all showed only head and shoulders, so they could not have been selected from the hundreds in police flies from the description given by the prosecuting witness and the only characteristic of the person portrayed that fit the description given was that all of those pictured were relatively young black males; and (3) the state deliberately limited the number of photographs to be viewed to six, rather than permit the prosecuting witness to view the numerous pictures of young black males contained in the sheriff s files.

Although the reliability of eyewitness identification is normally a question for the jury, the fundamental fairness of identification procedures addresses itself to the trial court. See Synoground v. State, 260 Ark. 756, 543 S.W. 2d 935; Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73, cert. den. 439 U.S. 882, 99 S. Ct. 220, 58 L. Ed. 2d 194. Although the question whether a pretrial photograph identification procedure is unduly prejudicial may be a mixed question of law and fact, {McClain v. State, 247 Ark. 33, 444 S.W. 2d 99, Synoground v. State, supra) we should not reverse the trial judge’s decision unless, viewing the totality of the circumstances, it is clearly erroneous. See Hinton v. State, 260 Ark. 42, 537 S.W. 2d 800; Mayes v. State, 264 Ark. 283, 571 S.W. 2d 420. Identification testimony is properly admissible, if from the totality of the circumstances the confrontation did not give rise to a very substantial likelihood of irreparable misidentification. Lindsey v. State, 264 Ark. 430, 572 S.W. 2d 145. We cannot say that the trial court erred in admitting the evidence concerning the photograph identification.

The discrepancy in dates is based upon the testimony of Officer Phillips at the pretrial hearing that the lineup was conducted on March 23, 1979, and that the prosecuting witness only viewed the photographs on one occasion. He said that none of those shown in the photographs were in custody at that time. The prosecuting witness testified at the pretrial hearing that she saw them on a later date, after she had given a statement about the alleged offense. Phillips testified at the trial that the prosecuting witness had viewed the photographs on March 27. The witness also testified during the trial that she had viewed the photographs on March 27. The discrepancy in dates was inconsequential and not indicative of unfair influence.

Phillips testified that, in selecting the photographs, the officers attempted to choose those of persons of the same height and age and complexion that would match the suspect. He said that the photographs, although showing only the heads and shoulders of the persons pictured, were of persons of the same build, complexion and age. The prosecuting witness said that she had described her assailant as a black male, between 5'5" or 5'6" tall, slender, weighing about 145 pounds, well dressed, wearing a three-piece suit and snap-brim hat, in his early twenties, with smooth complexion and no facial hair, light skinned, soft spoken, not having an ordinary black accent and not using slang. She said that the only similarities in the photographs and her description were that the subjects were all black and all relatively young. Keeping in mind the fact that appellant was not then in custody, it is hardly likely that the photographs would show similar wearing apparel. If the photograph of appellant in possession of the police (it was obtained from the Arkansas City Police Department), showed only head and shoulders, it was logical that all others be of the same type. This fact, standing alone, was not evidence of unfair police influence.

The limitation to six photographs is a matter that gives us more concern when considered along with appellant’s other objections. As we read Officer Phillips’ testimony at the pretrial hearing, however, it discloses that he and Officer Bolton went through the files of photographs available until they had found five of approximately the same age as their suspect, Beed, with similar haircuts, features and builds; they did not consider it necessary to have the prosecuting witness go through numerous other photographs nor did they believe this limitation might unduly influence her in her identification.

The test we apply in such identifications is based on factors stated in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). McCraw v. State, 262 Ark. 707, 561 S.W. 2d 71. They are: the opportunity of the witness to view the criminal at the time of the crime, the degree of attention of the witness, the accuracy of the prior description of the criminal, the level of certainty demonstrated at the confrontation and the time between the crime and the confrontation. There may have been some discrepancies in the description given as to height and weight, and the matter of facial hair was subject to some dispute; however, the prosecuting witness was always positive and unwavering. We cannot say that the collective effect of those matters appellant takes to be suggestive is not outweighed by the pertinent factors to be considered in determining reliability of identification for admission of the evidence.

Appellant next contends that, since the folder of photographs was introduced through Officer Phillips rather than through the prosecuting witness, it was hearsay, because the witness testified that she identified appellant’s photograph. Any error in this respect was cured when the prosecuting witness testified and was cross-examined extensively about her identification of appellant and the description she had given the police. White v. State, 270 Ark. 482, 605 S.W. 2d 11 (1980). See also, French v. State, 231 Ark. 677, 331 S.W. 2d 863; Bishop v. State, 236 Ark. 12, 364 S.W. 2d 676.

Appellant next makes a two-pronged attack upon the admission of evidence of the photographic lineup, i.e., one, the state’s exhibits two and three were unnecessary because they were cumulative and two, their probative value was substantially outweighed by unfair prejudice. The mere fact that evidence is cumulative may be a ground for its exclusion, in the sound discretion of the trial judge, but it is hardly a basis for holding that its admission, otherwise proper, constitutes an abuse of discretion. McMillan v. State, 229 Ark. 249, 314 S.W. 2d 483; Sheppard v. State, 120 Ark. 160, 179 S.W. 168; 23 CJS 1175, Criminal Law, § 1041. See also, Hall v. State, 64 Ark. 121, 40 S.W. 578; Kindrix v. State, 138 Ark. 594, 212 S.W. 84. Ark. Stat. Ann. § 28-1001, Rule 403 (Repl. 1979) does not require a different approach, in either the trial or the appellate court, for it merely permits the exclusion of evidence as cumulative. The question of weighing the prejudicial effect of cumulative evidence against its probative value is a matter of balancing which is primarily the function of the trial judge in the exercise of his discretion. The exercise of discretion by the trial court in such a matter should not be interfered with on appeal in the absence of manifest abuse. McMillan v. State, supra; Sheppard v. State, supra. See also, Tompkins, The Trial Evidence Handbook 3, § 8 (2d. Ed. 1936). It should be noted that under Ark. Stat. Ann. § 28-1001, Rule 403 (Repl. 1979), relevant evidence should not be excluded unless its probative value is substantially outweighed by unfair prejudice. Of course, it is likely that evidence offered by the state will be prejudicial to an accused, or it probably would not be offered. The first consideration for a trial judge is whether evidence which makes the existence of a fact more probable creates a danger of unfair prejudice. The secondary consideration is whether the danger of the unfair prejudice substantially outweighs the probative value of the evidence. There was no abuse of discretion in the admission of this evidence, particularly in view of the alibi defense and the necessarily persistent attack on the identification of appellant by the prosecuting witness.

After appellant and his witnesses had testified in an effort to establish an alibi, the state called Ed Kreiger as a witness in rebuttal. Kreiger was a jailer employed by the Miller County Sheriffs office. He testified that on April 6, 1979, he had overheard Beed say to someone in a telephone conversation, “Get the gun. It’s either in the suitcase or by the dryer.” The abstract of the record merely discloses that appellant’s attorney made a general objection and any specific ground was stated in an off-the-record discussion at the bench. A general objection cannot be the basis for reversible error. Ark. Stat. Ann. § 28-1001, Rule 103 (a) (Repl. 1979). Appellant now says that, in order to avoid disclosing that the conversation related to another offense with which appellant was charged, his attorney objected on the ground that, when the statement was made, appellant had not waived the right to counsel. The statement was not the result of any interrogation whatever. The mere fact that appellant was in custody when it was made did not make it inadmissible without a showing that appellant had waived his right to counsel, where there was no interrogation.

It was police misconduct that was intended to be inhibited by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed. 2d 694 (1970) and its progeny and not the making of incriminating statements. Statements which do not result from in-custody interrogation are not barred Johnson v. State, 252 Ark. 1113, 482 S.W. 2d 600. Spontaneous, voluntary and unsolicited statements made when an accused, although in custody, is not being interrogated are admissible. Steel v. State, 246 Ark. 75, 436 S.W. 2d 800; Crawford v. State, 254 Ark. 253, 492 S.W. 2d 900; Reynolds v. State, 254 Ark. 1007, 497 S.W. 2d 275; Upton v. State, 257 Ark. 424, 516 S.W. 2d 904; Sanders v. State, 259 Ark. 329, 532 S.W. 2d 752; Little v. State, 261 Ark. 859, 554 S.W. 2d 312. It might be advisable for the court on retrial to conduct a hearing in camera to determine whether the statement was voluntary.

The decision of appellant’s attorney not to base an objection on the relationship of the statement to another crime was clearly a tactical one, but the testimony would not have been rendered inadmissible had the attorney chosen a different tactical course.

Appellant moved the court to require the state to elect whether it intended to prosecute him for kidnapping or for rape. The basis of the motion was the contention that the same acts of force formed the basis for both the forcible compulsion which was an element of the charge of rape and the charge of kidnapping with the purpose of engaging in sexual intercourse. Appellant argues that the same restraint was used to prove both rape and kidnapping and this resulted in putting him in double jeopardy. He does not contend that the same acts cannot be used as proof of two separate and distinct felonies. He relies upon the definition of the two crimes and the commentary to the section of the statute in the Arkansas Criminal Code defining kidnapping and rape. He points out that kidnapping is a continuous offense requiring proof that the accused restrained another person, without that person’s consent, so as to interfere with the other person’s liberty with the purpose of engaging in certain acts, one of which is engaging in sexual intercourse, while rape is the act of engaging in sexual intercourse with another person by forcible compulsion, which is either physical force, or a threat, express or implied, of death or physical injury to or kidnapping of another person. See Ark. Stat. Ann. §§ 41-1702, -1803 and -1801 (2) (Repl. 1977). The commentary on which appellant places greatest reliance follows Ark. Stat. Ann. § 41-1702. That commentary, however, is a clear recognition that when, as here, the restraint exceeds that normally incident to the crime of rape or robbery, the robber should also be subject to prosecution for kidnapping.

The evidence here clearly forms the basis for the two separate crimes of kidnapping and rape. The prosecutrix testified that she was accosted by her assailant when, at about 10:00 p.m. on March 23, 1979, she returned to her automobile, which was in the parking lot at the Skaggs-Albertson grocery store in Texarkana, and that the assailant jerked the car door back, shoved a silver derringer in her face, said, “Move over or I’ll kill you,” got in the car, started it up and drove out Highway 67 to Mandeville, where he turned the car into a field, told her to get out of the car or he would shoot her head off, ordered her into the back seat of the car and to take her clothes off, and then raped her. She said that the accused first indicated his intention to have sexual intercourse with her while they were driving down Highway 67. She said that she had first resisted the act of sexual intercourse by fighting her assailant, but that he said that if she fought him, he would kill her. She testified that he held the gun in his hand throughout the act of intercourse. She said that she would not have submitted to the rape or given the man her rings had he not had a weapon, that he threatened her on several occasions and that she believed he would kill her. Clearly there was evidence of more than the minimal restraint which necessarily accompanies the crime of rape. We have recently rejected an argument similar to that of appellant in Conley v. State, 270 Ark. 886, 607 S.W. 2d 328 (1980). For this reason we find cases from other jurisdictions, upon which appellant relies, unpersuasive. We find no merit in appellant’s argument on this point.

Appellant contends that the trial court erred in denying his motion for dismissal of the charge of aggravated robbery at the close of the state’s case-in-chief and that there was insufficient evidence to support his conviction of that crime. Appellant contends that the evidence did not show either robbery or aggravated robbery, but would have supported, at best, theft of property by threat. It is appellant’s contention that there could be no aggravated robbery because there was no robbery and there was no evidence of a threat to immediately employ physical force at the time the prosecuting witness gave her rings to her assailant. He says that the prosecuting witness admitted that the theft of her property was not committed while her assailant employed or threatened to employ physical force upon her.

Appellant points out that the immediacy of the threatened physical force distinguishes robbery from theft by threat. See Ark. Stat. Ann. §§ 41-2102 (Supp. 1979), -2103 (Repl. 1977), -41 -2203 (Supp. 1979) and Commentary, §§ 41-2103, -2201 (Repl. 1977). Appellant relies to some extent upon apparent inconsistencies in the testimony of the prosecuting witness, and between her testimony and prior statements to police officers. These are of no consequence in our consideration of this piont. At most, they went to the credibility of the witness. Kitchen v. State, 271 Ark. 1, 607 S.W. 2d 345 (1980). Resolution of the conflicts and the question of credibility were for the jury. Riddick v. State, 271 Ark. 818, 607 S.W. 2d 671 (1980). In determining the sufficiency of the evidence to show aggravated robbery, we only look to see if, viewed in the light most favorable to the state, there was substantial evidence to support the charge. Ply v. State, 270 Ark. 554, 606 S.W. 2d 556 (1980).

The gist of appellant’s argument is that there must have been some active, actual threat at the time the rings were taken to constitute robbery, or that, if there was an implied threat, it no longer existed. We do not agree when we view the evidence as we must.

The victim testified:

When she was accosted in the parking lot, Beed shoved a gun in her face and said: “Move over or I’ll kill you.” During the time they were in the car, he had the gun, a silver derringer, at all times, and even held it in his hand while he was raping her. When she was having difficulty in keeping from crying, Beed told her that he had said he would let her go, but if she kept on crying he would have to kill her. When he ordered her out of the car in a grassy field near Mandeville, the alternative offered was having her head shot off. When she was reluctant to take her clothes off when Beed ordered her to do so, he again threatened to kill her. When she resisted sexual intercourse by fighting Beed, he said if she fought, he would kill her. He seemed to be trying to agitate her, so she would fight. When Beed decided to terminate the sexual act, he told her he had decided not to kill her because she had children and he would let her go if she would not tell anyone about what had happened. He noticed her rings as she was getting dressed, asked if they were valuable and told her to give them to him along with all the money she had. He still had the gun in his hand. He told her then that he did not intend to hurt her, but she did not believe him. When Beed first got into the car at the parking lot, he had told her that he was going to kill her and wanted her money. She had no doubt in her mind about Beed’s intention to kill her. She would not have given Beed the rings if he had not had a weapon. He had threatened her several times and she believed he would kill her.

This testimony constituted very substantial evidence that there was an immediate threat of death or serious physical injury to the prosecuting witness, at least until she had surrendered her rings and her money.

Appellant contends that the court erred by not instructing the jury on the lesser included offense of sexual abuse in the first degree. The prosecuting witness, testified that Beed had sexual intercourse with her, that the sexual act lasted 5 to 15 minutes and that she did not believe that Beed reached a sexual climax before he got up, told her that he had decided not to do this, but that she was positive there had been penetration. We do not agree with appellant’s statement that the witness was confused as to whether Beed decided to discontinue the sexual act before or during the alleged act. The fact that the doctor who examined her four or five hours after the incident was unable to determine when she had last had sexual intercourse and the semen he found in a pelvic examination contained non-motile sperm was immaterial. It is true that the physician said that sperm normally had a life expectancy of two or three days, but he also said that his findings were consistent with recent sexual intercourse and mentioned a minimal degree of swelling around the labia. He said that a number of things can cause non-motility of sperm. Among them was the production (by some females) of antibodies which rapidly kill sperm.

It is not error to refuse to instruct the jury on a lesser included offense where the evidence, as here, clearly shows that the defendant is either guilty of the greater offense or innocent. Caton v. State, 252 Ark. 420, 479 S.W. 2d 537. Under the present law, a court is not obligated to instruct a jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the lesser degree. Ark. Stat. Ann. § 41-105 (3) (Repl. 1977). We find no rational basis for acquitting Beed of rape and finding him guilty of sexual abuse in the first degree.

Appellant complains of the court’s instruction on theft of property because of omissions he considers material and because the court did not submit the lesser included offense of theft as a class C felony and theft as a misdemeanor. We should first say that appellant is in error as to the minimum property value required for a class B felony by Act 360 of 1977. Ark. Stat. Ann. § 41-2203 (Repl. 1977). That amount was reduced from $10,000 to $2,500. The maximum value which could be found from the evidence here was $1,510.

The jury could find appellant guilty of theft as a class B felony if it found that the property was obtained by the threat of serious physical injury to the victim, regardless of the value of the property. It does appear that the lesser included offense of theft, class C felony, should be given.

Finally, appellant contends that the trial court erred in sentencing him without advising him of his right to appeal, the period of time prescribed for appeal, fixing bond for appeal or stating his right to bond, and without the benefit of any presentence investigation or report to determine any mitigating circumstances. We agree with appellant that it was error for the court to sentence him before according him the right of allocution. He has shown no prejudice because of the court’s failure to advise him of his rights with regard to appeal or to fix bond pending appeal. The resort to presentence investigation is discretionary with the trial court. Since the court made a life sentence, a 50 year sentence and a 10 year sentence run consecutively, it might have been the better practice to first have a presentence investigation, but we find no abuse of the trial court’s discretion in this case.

The judgment is reversed and the cause remanded for a new trial.

Stroud, J., concurs.

John F. Stroud, J., concurs.

John F. Stroud, Justice,

concurring. I am compelled to concur in the reversal of the conviction in this case because the affidavit in support of the search warrant was defective. This court has held many times that an affidavit of a police officer setting forth information gained from a confidential informant must not only show the information was obtained from a reliable source, but must also set forth some of the facts or circumstances upon which the informant’s information was based. State v. Lechner, 262 Ark. 401, 557 S.W. 2d 195 (1977); Lunsford v. State, 262 Ark. 1, 552, S.W. 2d 646 (1977). Here the affidavit contained sufficient facts to show the reliability of the confidential informant, but was completely devoid of any underlying circumstances or facts supporting the informant’s conclusion that the stolen items were hidden in the residence of appellant’s mother.

I favor a more lenient requirement for the issuance of a search warrant to permit the search of a residence for specific stolen property after the accused has been charged and arrested for burglary or robbery, because a person’s residence is the usual and normal place where such booty is hidden. To require that a confidential informant see the stolen goods there, be told by the accused that they are there, or otherwise have facts indicating that they are secreted in the residence is in most cases a denial of the right to search. I concur only because my view is inundated by the prior decisions of this court and the United States Supreme Court. Aguilar v. Texas, 378 U.S. 108 (1965).

However, I disagree with the majority opinion in also basing their reversal on the failure of the trial court to dismiss juror Richard Bolton for cause. Although I agree that it would have been expedient for the trial judge to have dismissed juror Bolton for cause, and I would urge all circuit judges to do so in similar circumstances, I do not think the failure to do so constituted reversible error. The majority acknowledge that a literal reading of Ark. Stat. Ann. § 43-1920 (Repl. 1977) does not require a dismissal of juror Bolton for cause, but they nevertheless apply the statute here on the premise of liberal construction. The portion of the statute relied on provides that a challenge for implied bias may be taken where the juror is related by consanguinity to the person on whose complaint the prosecution was instituted. There is no question about the relationship here, but the only possible person upon whose complaint the prosecution could have been instituted was the victim. I do not think that language can be expanded so liberally as to include a police officer who participated in the investigation, nor do I think the legislature could possibly have intended that meaning. It wás, therefore, not error to refuse to excuse juror Bolton for implied bias under § 43-1920.

The majority opinion also indicated that the juror should have been excused for actual bias when it said, “Neither can we say that Richard Bolton’s answers on voir dire were sufficient to eliminate him as one who was prevented by a relationship or by circumstances from acting impartially ...” Although a lengthy voir dire of the entire panel was conducted by the trial judge, the questioning of Mr. Bolton by the defense attorney after he had been called as a juror continued as follows:

Q. Mr. Bolton, should it develop from the evidence in this case, that your brother, who I believe is currently employed himself in law-enforcement work, should be a witness in this case or should have worked in connection with the investigation of this case, would that cause you to lean more heavily in favor of the State than toward the defendant?
A. No, sir.
Q. You heard, of course, the question to Mr. Walker about knowing a witness in the case. If you feel that you are chosen on this jury, and in your deliberations arriving at a verdict of not guilty, that it would be embarrassing to you to discuss this case with your friends being on the Sheriffs Department and Police Department?
A. No, sir.
Q. You don’t think it would bother you at all?
A. No, sir. ■
Q. You wouldn’t let that relationship influence your judgment of the evidence in this case?
A. No, sir.
Q. You wouldn’t try to persuade any of the other jurors that those things should be considered against their judgment?
A. No, sir.

Following the questioning by counsel, the trial court received an affirmative response from Bolton to an additional question, “Do you feel that you can, without any embarrassment, serve and let the verdict speak the truth?” It obviously would have been impossible for Mr. Bolton to have given more perfect responses reflecting a total lack of actual bias. The judge had the right to accept Mr. Bolton’s responses as being truthful. The determination of actual bias is a matter lying within the sound judicial discretion of the trial judge. Gammel v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976).

The majority rely on Arkansas State Highway Comm’n v. Young, 241 Ark. 765, 410 S.W. 2d 120 (1967), to support their decision that it was reversible error not to excuse juror Bolton for cause due to his brother’s participation as a police officer in the investigation of the case. That case did find it was error not to excuse the wife of a witness for cause, but in this case Officer Bolton was not a witness. In Jones v. State, 230 Ark. 18, 320 S.W. 2d 645 (1959), where a juror was the sister of a police officer who testified in the case, this court held, “The relationship of a juror to a witness in the trial does not per se disqualify the juror.” The majority opinion in this case is tantamount to a holding that Mr. Bolton is disqualified as a juror per se even though his brother was not a witness in the case. The appellant is entitled to a fair trial, but neither he nor any other accused is entitled to a perfect trial.


source: Caselaw Access Project

author: John A. Fogleman, Chief Justice.

license: Public Domain

text:
    Charles TILLMAN v. STATE of Arkansas
    CR 80-164
    609 S.W. 2d 340
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980

      E. Alvin Schay, State Appellate Defender, by: Linda Faulkner Boone, Deputy State Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

Charles Tillman was found guilty of theft by feloniously receiving and retaining a television set valued in excess of $100, knowing or having good reason to believe it was stolen. He was sentenced to five years imprisonment after a jury trial on January 25, 1979. On appeal, Tillman contends that the trial court erred in denying his motion to quash a search and to suppress as evidence the television, two screwdrivers and a knife seized as a result of that search. He also contends that the evidence was not sufficient to support his conviction of the felony of theft by receiving because there was no showing that the value of the television was in excess of $100. We do not agree with either contention, so we affirm the judgment.

On November 23, 1978, at about 7:50 p.m. Marshall Clarey, who resided in Apartment 5, at 969 Holly Street in Fayetteville, noticed an older model gold Cadillac automobile parked in the parking lot at the apartment complex. He observed a black male wearing a coat and a knit hat leaning against the car. A few minutes later, after the car had left, Clarey noticed that the door to a neighbor’s apartment was open. Knowing the neighbor was out of town, Clarey entered the apartment, discovered that the neighbor’s television set was missing, and called the police. While waiting for the police to arrive, Clarey saw the same automobile pass the apartment twice and noticed that it was occupied by two people.

Officer George Coffman, a sergeant in the Criminal Investigation Division of the Fayetteville Police Department was advised of the burglary of the apartment by a radio message about 8:15 p.m. He was told that a gold Cadillac in which there were one or two men, one of whom was black, was seen leaving the apartment complex where the burglary occurred. He said he received a message 10 or 15 minutes later that a television set had been taken. Coffman said that he was aware that, about three days earlier, a gold Cadillac had been seen by the victim of a burglary about three hours before his apartment had been burglarized, that he knew that Tillman drove a gold Cadillac, that he had “worked” several burglary cases in which Tillman was convicted and that 23 apartment burglaries had been cleared when Tillman had been arrested. He directed Paul Wood and Mark Hanna, also of the Fayetteville Police Department, to go to the area in which Tillman lived. Coffman stationed himself about a half block from the residence at which Tillman was living.

Paul Wood testified that he saw and stopped appellant in the gold Cadillac in a public “alleyway.” According to both Tillman and Officer Coffman, the alleyway was Meadow Street which ran behind the Ozark Theatre Building. Wood testified that he had been told by Coffman that a car of that description with a black person driving it, had been seen leaving the scene of a burglary. Wood asked the driver for his driver’s license for identification. Tillman gave the officer his driver’s license and the officer took it, went back to his police car and advised Coffman by radio that he had stopped the car. Wood said that he then awaited Coffman’s arrival. Coffman testified that he arrived at the vehicle where Tillman was within three minutes after he received Wood’s message, which was about 8:35 p.m., only about 20 or 25 minutes after he had received the first report of the burglary. He said that Tillman knew him and spoke to him. At that time, Officers Mark Hanna and Mike Carl had also arrived on the scene. Coffman said that the Tillman car was empty and that Tillman was in Officer Wood’s car. Coffman testified that he told Tillman that a car matching the description of Tillman’s car had been seen at a burglary a short time earlier and that officers believed that they had reasonable grounds to search his car for a stolen television. According to Coffman, Tillman asked if he had a search warrant, and when he told Tillman that he did not, Tillman said he could not search the car. Coffman said he again advised Tillman that his understanding of the law was that the officers did have probable cause to search the car, asked Tillman for the car keys, and, when Tillman refused to-give them to him, warned Tillman that if the officers could not have the keys, the car would be forcibly opened. Coffman said that Tillman became unruly and that the officers found it necessary to handcuff him for his protection and theirs. Coffman then removed the keys to the automobile from Tillman’s pocket, opened the trunk and found a Sears color television, some hubcaps, two screwdrivers, a knife and a tape recorder.

Both parties say that Tillman had not been arrested at the time of the search and it is admitted that no warrant authorizing the search had been issued. The trial judge denied the motion to suppress the evidence, holding that probable cause existed, that the requirements of Rule 14.1, [Arkansas Rules of Criminal Procedure, Ark. Star. Ann. Vol. 4A (Repl. 1977)] had been met and that the search was reasonable.

There were minor conflicts between the testimony of the officers and that of Tillman at the suppression hearing. The only conflict that might be considered significant is that Tillman testified that he never became unruly or belligerent, but when he declined to open the trunk of his car the second time, he was grabbed by three or four policemen and handcuffed, after which the keys were taken from his pocket. Tillman now contends that he was improperly stopped and that, in any event, the officers had no right to seize and to search his person for anything other than weapons.

We simply do not agree with Tillman’s contention that the officers did not have reasonable cause to believe that his moving, or readily movable, vehicle contained things subject to seizure. He says that the evidence fails to show that Officer Wood shared the information that Officer Coffman had and that he was stopped only on the basis of Wood’s information that a gold colored Cadillac driven by a black male had been seen at the scene of a burglary. The test for probable cause for the stopping and the searching of this automobile rests upon the collective information of the police officers, however, not upon the information of the officers stopping the vehicle. Perez v. State, 260 Ark. 438, 541 S.W. 2d 915. See also Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458. Viewed in the light of the collective information of the police, not only was there reasonable cause for the search, pursuant to Rule 14.1, but the search was not unreasonable under Fourth Amendment standards, when we view the evidence in the light most favorable to the state, as we must. See Horton v. State, 262 Ark. 211, 555 S.W. 2d 226.

The right of police officers to stop a vehicle on the public highway for the purpose of searching it exists when there is probable cause for that action, i.e., when the facts within the knowledge of the officers, or of which they have had reasonably trustworthy information, when they intercept the vehicle, amounts to more than a mere suspicion that it contains something subject to seizure. Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L.Ed. 1879 (1949); Cox v. State, 254 Ark. 1, 491 S.W. 2d 802; Tygart v. State, 248 Ark. 125, 451 S.W. 2d 225, cert. den. 400 U.S. 807, 91 S. Ct. 50, 27 L.Ed. 2d 36 (1970). See also, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed. 2d 419 (1970); Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); Perez v. State, supra; Anderson v. State, 256 Ark. 912, 511 S.W. 2d 151.

The officers clearly had the right to stop the vehicle. No search was attempted until Coffman arrived. When he did, he recognized Tillman. The parties agree that there was no arrest until after the search and the earlier existence of probable cause for arrest is not material.

The right to search and the validity of the seizure were not dependent upon the right to arrest; they were dependent only upon the reasonable cause the officers had for believing that the contents of the automobile were subject to seizure. Carroll v. United States, 267 U.S. 132, 46 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, supra; Cox v. State, supra; Moore v. State, 244 Ark. 1197, 429 S.W. 2d 122. Since the search was not incident to an arrest and not based upon a warrant, the reasonableness of the search turns upon its propriety as the search of an automobile.

The so-called “automobile exception” to the requirement of a warrant authorizing a search was first stated in Carroll v. United States, supra. It was based upon the premise that the Fourth Amendment to the United States Constitution does not denounce all searches and seizures, but only those which are unreasonable. See Milburn v. State, 260 Ark. 553, 542 S.W. 2d 490; Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909, 85 ALR 3d 1185. In Carroll, it was announced that the true rule is that a warrantless search and seizure are valid if made upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which is subject to seizure and destruction. It was recognized that there had long been a necessary difference between search of a store, dwelling house or other structure and a movable vehicle for contraband goods where it is not practicable to secure a warrant, because the vehicle can quickly be moved out of the locality or jurisdiction in which a warrant can be issued. See also, Chambers v. Maroney, supra. It is now well established that warrantless searches of automobiles may be reasonable when, under the same circumstances, a search of a home, store or other fixed piece of property would not be. Perez v. State, supra. The difference is based not only upon the mobility of the automobile, but upon the diminished expectation of privacy in an automobile. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed. 2d 538 (1977); Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed. 2d 235 (1979).

An automobile on the public highway may be searched without a warrant if there are both exigent circumstances and probable cause to believe that it will yield contraband or evidence useful for the prosecution of crime. Chambers v. Maroney, supra; Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909, 85 ALR 3d 1185. See also, Cox v. State, supra; Anderson v. State, supra; Roach v. State, 255 Ark. 773, 503 S.W. 2d 467; Tygart v. State, supra. For the purposes of the “automobile exception,” a public street and a public highway are viewed in the same light. See Arkansas v. Sanders, supra.

The knowledge of Coffman of Tillman’s previous activities as an apartment burglar, of the description of Tillman’s automobile and of the previous arrest and convictions of Tillman for burglary were important factors in the establishment of probable cause. See Brinegar v. United States, supra; Husty v. United States, supra. This knowledge, when coupled with the information the officers had about the presence of an automobile fitting the description of the one stopped and of a black man at the scene of the burglary, gave probable cause for search of the automobile, and, when the interior of the automobile was empty, a search of the trunk. See Chambers v. Maroney, supra; Tygart v. State, supra. Probable cause alone will not justify the warrantless search of an automobile; exigent circumstances must also exist. Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909.

The first information the officers had about the burglary was received through the call by Clarey. Police officers then came to the burglarized apartment. Thereafter, Coffman was notified. His first notice was received at 8:15 p.m. The fact that a television set had been taken was disclosed to him 10 to 15 minutes later. The knowledge of Coffman was necessary to the establishment of probable cause. There was a real danger that, unless immediate action was taken, the automobile would be outside the jurisdiction of the officers or the television removed from it. Tillman testified that he was about to stop at the house of a friend on Meadow Street when the police stopped him. If the officers had not stopped the automobile when they did, the chance of finding the television set would have been slight, if not nonexistent. Where there is probable cause for the search of an automobile for particular articles and it is not practicable to secure a warrant because the opportunity to search is fleeting, if an effective search is to be made at any time, the vehicle must be searched immediately without a warrant or seized and held without a warrant for whatever period is necessary to obtain a search warrant. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed. 2d 419 (1970). An immediate search of an automobile stopped on a public highway is constitutionally permissible when the occupant has been alerted and the car’s contents may never be found again if a warrant must be obtained and, given probable cause to search, there is no difference between, on the one hand, seizing and holding a car before presenting the probable cause issue to a magistrate and, on the other hand, carrying out an immediate search without a warrant. Chambers v. Maroney, supra; Cox v. State, 254 Ark. 1,491 S.W. 2d 802. In this case, where Tillman had not been arrested and had possession of the keys to the automobile, and the officers obviously were not confident before the search that they had probable cause for the arrest of Tillman, the right of the officers to seize and hold the automobile and thereby deny its use to anyone was questionable. In any event, the difficulties in seizing and securing automobiles have led the United States Supreme Court to make special allowances for search after police have seized an automobile and have it securely within their control. Arkansas v. Sanders, supra. We have under somewhat similar circumstances, said that the question was whether it was reasonably practical to obtain a search warrant. The search here was valid if it was not reasonably practical to obtain a search warrant. Perez v. State, 260 Ark. 438, 541 S.W. 2d 915; Tygart v. State, 248 Ark. 125, 451 S.W. 2d 225, cert. den. 400 U.S. 807, 91 S. Ct. 50, 27 L.Ed. 2d 36 (1970).

When the circumstances furnishing probable cause to search a particular automobile are unforeseeable, so that, if an effective search is to be made, it must be made immediately and without a warrant or the car must be seized and held without a warrant for whatever period is necessary to obtain a search warrant, either course is reasonable. Chambers v. Maroney, supra; Perez v. State, supra. The only practical action for the officers to have taken was to search the vehicle at the place it was stopped. It was highly impractical to obtain a •search warrant under these circumstances. The difficulties in obtaining a warrant were greater than usual at the time of day the search took place because all the events took place on Thanksgiving day, a universally observed holiday.

Assuming that the seizure of the car keys from the person of Tillman was an unreasonable intrusion, the search of the trunk and the seizure of the television set were not fruit of that intrusion because the officers had the right to search the trunk without the warrant and without the keys and the successful search was not dependent upon their seizure, since they could have, as they said, and undoubtedly would have, broken into the trunk for that purpose. See Somer v. United States, 138 F. 2d 790 (2 Cir., 1943); People v. Fitzpatrick, 32 N.Y. 2d 499, 346 N.Y.S. 2d 793, 300 N.E. 2d 139 (1973).

This case is not related in any way to Scisney v. State, 270 Ark. 610, 605 S.W. 2d 451 (1980), or Burkett v. State, 271 Ark. 150, 607 S.W. 2d 319 (1940). In Scisney, the only issue was whether there was a violation of the Fourth Amendment to the United States Constitution by a warrantless search of a suitcase found in the trunk of the accused’s automobile after he had been taken into custody with the intention of placing him under arrest for driving while under the influence of intoxicating liquors or drugs. That search was held unreasonable upon the basis of an owner’s expectation of privacy in his luggage, following Sanders v. State, 262 Ark. 595, 559 S.W. 2d 704, affd. sub nom Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed. 2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed. 2d 538 (1977); Torres v. Puerto Rico, 442 U.S. 465, 99 S. Ct. 2425, 61 L.Ed. 2d 1 (1979). We also found that there was no probable cause for believing that contraband was in the trunk. We found there were no exigent circumstances, because the vehicle was in the complete control of the officers, who had it towed to the police station by a wrecker, which would have afforded them ample opportunity to obtain a search warrant to search the trunk and suitcases after it was impounded. In Burkett, not only was the search of a locked automobile trunk made after an arrest of both occupants of the vehicle, and a call for a tow truck for the purpose of impounding the vehicle, but it was without probable cause.

Appellant also contends that the state failed to show that the television set had a value of more than $100. Wendel Fleming, its owner, testified that it was a 19-inch Sears color set he had purchased a year and a half prior to its theft, that the purchase price was $47 6, that he had never had any operational problems with it and that it was in good condition when stolen. The purchase price paid by the owner is admissible as a factor for the jury to consider in determining market value, when it is not too remote in time and bears a reasonable relation to present value. Williams v. State, 252 Ark. 1289, 482 S.W. 2d 810. This was the only evidence of value. Appellant contends that, because the set had been used for a year and a half, evidence of the purchase price was not substantial evidence of a market value of $100, relying upon Cannon v. State, 265 Ark. 270, 578 S.W. 2d 20. In that case a 1955 model automobile had been stolen. It had been purchased 12 years before the theft for $148. Naturally we held this did not show a value of $100 at the time of the theft. The situation here is entirely different. Unlike the situation in Cannon, where the automobile was 23 years old and the purchase so remote in time, here the evidence of value was not so remote and was substantial.

The judgment is affirmed.

Purtue, J., dissents.


author: George Rose Smith, Justice.

text:
    P & O FALCO, INC, et al v. Mary S. RILEY
    80-116
    610 S.W. 2d 255
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980
    [(Rehearing denied February 9, 1981.]

      Smith, Stroud, McClerkin, Dunn & Nutter; Mahoney & Yocum; Woodward & Kinard, Ltd.; Arnold, Arnold, Lavender & Rochelle; Keith, Clegg & Eckert; David B. Stein; Nolan, Alderson & Vickery; McKay, Chandler & Choate; J. W. Brown; Joseph V. Svoboda; and Crumpler, O’Connor & Wynne, for appellants.

      Spencer, Spencer & Shepherd, by: J. V. Spencer, Jr., for appellee.
   George Rose Smith, Justice.

In 1977 the appellee brought this class action against a number of producing oil companies to obtain a determination of whether the tax credit allowed against the severance tax by Act 258 of 1957 is for the benefit of the oil producer only or is also for the proportionate benefit of the royalty owner. Ark. Stat. Ann. § § 53-131 through -137 (Repl. 1971). After the filing of many interventions and other pleadings the case was submitted to the trial court by agreement for final determination upon motions for summary judgment. This appeal is from a decree finding that the owners of royalty and of overriding royalty are entitled to share proportionately in the benefit of the statute. The Court of Appeals certified the case to us for decision.

We do not consider Act 258 to be an amendment to the severance tax statutes, but those statutes must be considered as the setting for Act 258. The severance tax is levied as a privilege or license tax upon the severance of natural resources from the soil or water in Arkansas. With respect to oil the tax rate is 4% or 5% of the market value of the oil, depending upon the volume of production. Ark. Stat. Ann. § § 84-2101 and -2102 (e) (Repl. 1980). The monthly tax reports are to be filed, and the tax paid, by the producer actually severing the oil from the soil, but the producer is required to deduct a proportionate part of the tax in making payment to the royalty owner. § 84-2105. Thus the owner of a one-eighth royalty interest bears his one-eighth of the tax burden.

Act 258 of 1957 provides a 75% credit against the severance tax as a bonus, an incentive, a reward, for the discovery of each new oil pool in Arkansas. The credit continues for a period of 5 or 10 years, depending upon the comparative depth of the new pool. The question is whether that bonus is only for the benefit of the producer, often called the “working interest,” or is to be extended to the royalty interest.

We are compelled to disagree with the chancellor’s conclusion, because our study of Act 258 convinces us that the bonus was intended only for the benefit of the producer. In fact, the entire act contains no mention of the royalty owner or any similar interest. To the contrary, every pertinent section of the act is applicable only to a producer, not to a royalty owner.

First, the title of the act states that it is to promote and encourage exploration for oil. The first section declares the legislative policy to be that of “stimulating the flow of money into the search and exploration for new sources of oil.” It is a matter of common knowledge that in the oil industry it is the producer, not the royalty owner, who incurs the entire financial risk in the exploration of unproven territory. The completion of a dry hole is wholly at the producer’s expense.

Second, the “owner” is defined as the person who has the right to drill and produce oil. “Person,” in turn, includes a natural person, corporation, partnership, and about every other entity. Section 2; § 53-131. Of course, it is the producer or working interest that has, under standard forms of oil leases, the exclusive right to drill and to produce oil.

Third, section 3 provides that any person who discovers a new commercial oil pool shall be entitled to the bonus “upon compliance with the provisions” of the act. § 53-132. The producer alone can bring in a discovery well and comply with the provisions of the act.

Fourth, under section 4, to become entitled to the benefits of the act a person must apply to the Oil and Gas Commission for a permit to drill the discovery well. § 53-133. Presumably such applications must be made by the working interest, not by the royalty interest.

Fifth, section 6 provides that upon receipt by the Commission within one year of evidence that a new pool has been discovered “by such person” in the drilling of the discovery well, the Commission shall issue to such person a certificate entitling that person to the benefits of the act. § 53-135. Only a producer could possibly qualify as the person in question.

Sixth, by section 7 the person receiving the certificate shall be entitled to receive from the Revenue Commissioner a credit against the taxes “otherwise due by such person” on account of oil produced from the pool from wells as to which such person was the owner. § 53-136. “Owner” is defined by section 2 as the person having the right to drill and produce oil. That person is the producer.

Act 258 is complete in itself; it is not an amendment to the severance tax statutes. Act 258 has a single purpose, the stimulation of the flow of money into the search for new sources of oil in Arkansas. To that end a tax credit is provided for certain persons. The only person entitled to such a credit is a person who as the “owner” of an area applies to the Oil and Gas Commission for a drilling permit, completes the drilling, discovers a new pool, and is certified by the Commission as having discovered a pool. At that time the holder of the certificate becomes entitled to a credit against the taxes thereafter otherwise due by that person on account of oil from the new pool from wells on land as to which the person was the owner. We find no indication in the act of a legislative intent to benefit anyone except the holder of the certificate of discovery. In so holding we express no opinion about whether the credit should be computed only with respect to that part of the tax actually borne by the producer, that question not being before us.

Reversed and dismissed.

Holt, Purtle and Stroud, JJ., not participating. Special Justice W. K. Grubbs joins in the opinion. Special Justice James B. Blair dissents.


author: George Rose Smith, Justice. Richard L. Mays, Justice,

text:
    Clayton HOWARD v. GLENN BROTHERS TRUCKING, INC.
    80-210
    609 S.W. 2d 897
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980
    [Rehearing denied January 26, 1981.]

      Bennie O’Neil, for appellant.

      Mitchell, Williams, Gill & Selig, by: D. Brent Bumpers, for appellee.
   George Rose Smith, Justice.

The plaintiff, Clayton Howard, was employed for 20 days by the defendant company as an assistant truckdriver for long-distance hauling. After his employment ended he brought this action to recover unpaid wages and a statutory penalty of $43.69 a day for the employer’s failure to pay his wages within seven days after he was discharged. Ark. Stat. Ann. § 81-308 (Repl. 1976). The case was heard without a jury. The judgment awarded Howard $383 in back wages, but found that he was not entitled to the penalty. The Court of Appeals certified the case to us.

The appellant concedes that the statute is penal, that the penalty is imposed only in favor of one who comes strictly within its language, and that the statutory language does not cover one who quits voluntarily. Missouri Pac. R.R. v. Clement, 207 Ark. 389, 181 S.W. 2d 240 (1944).

The controlling question at the trial was whether Howard voluntarily quit or was fired. On this issue there was substantial testimony to support a decision either way. Howard rested his case after making prima facie proof that wages were due and had not been paid after demand. A witness for the defendant testified that on the last day of Howard’s employment he telephoned the company from Chicago, saying that the principal driver was ill and asking for instructions. The witness, who heard the conversation on an extension telephone, testified positively that Howard was not fired. To the contrary, Howard said that he was getting off the truck, which in the trade means that he was quitting. The witness also testified that Howard rode back on the truck as a passenger, although the company had sent him money to return by bus.

In rebuttal, Howard testified that, after an exchange of much profanity during the telephone conversation, he told Mr. Kirtner, who had answered the call, that if Kirtner had to talk to him the way he did, he couldn't work under those conditions. Howard said that he was fired and did not quit until he returned to Little Rock, saying then: “There’s no sense in you firing me, because I quit.” He said he quit because he was not paid all his wages. He admitted that he asked for and received the money for a bus ticket, that he rode back on the truck, and that he spent the bus fare to pay personal debts.

We regard the issue as having been simply one of fact, upon which reasonable minds might differ. Without having had the advantage of hearing the testimony, we are not in a position to say that the trial court’s decision is clearly erroneous.

Affirmed.

Purtle, J., not participating. Mays, J., dissents.

Richard L. Mays, Justice,

dissenting. When an employee engages in a business conversation on the telephone with another employee and is abusively interrupted by his employer who calls him a M- F-, and the employee responds in kind, and the employer then tells him to find some other place to work, and the employee thereafter does not report to work, any fact finder who concludes that the employee voluntarily quit his job has made a finding which is clearly erroneous. As far as I am concerned, any other facts would be simply superfluous if the issue is whether the employee voluntarily quit or was fired. Since the majority of the Court holds otherwise today, I must respectfully dissent.

The judgment below should be reversed.


text:
    Lee Francis HARRIS v. STATE of Arkansas
    CR 80-183
    609 S.W. 2d 48
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980

      E. Alvin Schay, State Appellate Defender, by: Jack R. Kearney, Deputy State Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Appellant, aged 33, was charged with attempted capital murder in shooting at David Sanders, a law enforcement officer acting in line of duty. He pleaded not guilty and not guilty by reason of a mental disease or defect. The jury found him guilty and imposed a 25-year sentence. For reversal he contends that the evidence is not sufficient to support the verdict and that the court should not have permitted the introduction of a statement he made to police officers on the day of the offense.

The State adduced an abundance of substantial evidence to support the charge. On March 20, 1979, Officer Sanders, in his police uniform, went to a residential area in Little Rock to investigate suspicious conduct on the part of Harris. When the officer came up behind Harris in a yard and spoke to him, Harris turned quickly, and the officer saw he had a pistol in a shoulder holster. The officer drew his own pistol and cocked it. As Officer Sanders was backing up, he tripped and lost his balance. Harris grabbed the barrel of Sander’s weapon with both hands. During the struggle Sanders pulled the trigger, firing harmlessly. Sanders continued falling and hit the ground, dropping his gun. At that point Harris stood astride of the officer’s body, held his own pistol in both hands, and aimed at the officer, between the eyes. Sanders escaped injury by rolling over just before Harris fired. Harris fired again as Sanders was making his way to his car to call for assistance.

Other police officers arrived quickly. In a running gun battle both Harris and the officers fired several times before Harris reached his own house and took refuge there. After some two hours of attempted persuasion the officers used tear gas to make Harris come out and surrender. He was taken to a hospital for removal of the lingering tear gas in his eyes. He was then taken to police headquarters, where, after having been given Miranda warnings, he made and signed a brief but coherent statement of his encounter with the officers.

It is argued that the State failed to prove that Harris acted with the necessary mental culpability, knowledge that Sanders was an officer, premeditation, and deliberation. Of course, it was impossible for the State to offer explicit direct proof of all such issues of intent and mental state, but the proof of Harris’s actions was sufficient to establish every element of the offense and to support the jury’s verdict of guilty. No complaint is made of the court’s instructions submitting all the issues that are now argued.

As to the admissibility of the statement, the court held two in-chambers hearings just before the trial began. The first was upon a motion asserting that Harris was mentally unfit to stand trial. Psychiatrists testified that when Harris was first committed to the State Hospital, eight days after the offense, he was found to be confused, to be suffering from paranoid schizophrenia, and to be unfit to stand trial. After some four months of medication and treatment, which could be continued after his possible release, he was found to be in complete remission and able to communicate in a normal manner. At the conclusion of that hearing the judge found Harris mentally fit to stand trial.

The same proof was also considered at the Denno hearing. In addition, the three officers who participated in the interrogation testified that Harris gave preliminary information, such as the date and place of his birth, that he seemed to understand their questions, that he answered them calmly, and that the statement was made voluntarily. At the end of the Denno hearing the trial judge discussed the proof briefly and concluded with these words:

I would permit this [the signed statement] to be into evidence for whatever weight the jury might determine that it is entitled to, if any. And you may inquire about it, and you may argue this-to the jury, and you may inquire of the doctor in front of the jury as to his capacity for whatever weight they may give to it, if any at all.

The trouble with the foregoing ruling is that it may be taken to mean either that the judge finds the statement to be voluntary or that he is leaving that issue to the jury for its sole determination. Thus the ruling fails to meet the Supreme Court’s requirement that the trial court’s conclusion that a confession is voluntary “must appear from the record with unmistakable clarity.” Sims v. Georgia, 385 U.S. 538 (1967). Our statute also makes it the trial court’s duty to determine by a preponderance of the evidence that the confession was made voluntarily. Ark. Stat. Ann. § 43-2105 (Repl. 1977).

The deficiency in the ruling, however, does not in itself entitle the defendant to a new trial. The cause should be remanded to the trial court for an explicit determination of the issue of voluntariness. Swenson v. Stidham, 409 U.S. 224 (1972); Jackson v. Denno, 378 U.S. 368 (1964). We have followed that same procedure, by remanding the cause and affirming it upon a second appeal Johnson v. State, 248 Ark. 184, 450 S.W. 2d 564 (1910); Johnson v. State, 249 Ark. 268, 459 S.W. 2d 56 (1970). A new trial should be ordered only if the trial judge finds the confession to have been involuntary. Denno, supra.

No error being shown except with respect to the required finding of voluntariness, the cause is remanded for further proceedings upon that issue. Whether an evidentiary hearing is needed is for the trial judge to decide.

Purtle, J., not participating.


author: Frank Holt, Justice. John A, Fogleman, Chief Justice,

text:
    R. L. BURNS, Jr. v. M. L. MADDEN, d/b/a SHAMROCK CLUB
    80-261
    609 S.W. 2d 55
    Supreme Court of Arkansas
    Opinion delivered December 22, 1980

      Batchelor & Batchelor, by: Fines F. Batchelor, Jr., for appellant.

      Everett & Whitlock, by: John C. Everett, for appellee.
   Frank Holt, Justice.

This appeal results from the trial court’s denying appellant’s motion to quash and vacate a default judgment.

On November 7, 1978, the appellee filed an action against the appellant asserting he had suffered property damages to his building as a result of the negligent operation of an automobile by appellant and that a separate defendant had negligently entrusted the automobile to appellant. On November 13, 1978, a summons was served on him. On January 8, 1979, a default judgment for $5,000, plus costs, was rendered against him. On January 9 a summons, issued 4 days earlier, was served on the separate defendant, the owner of the automobile. On January 23, 1979, a motion to quash service was filed on behalf of both the appellant and the separate defendant. On March 9, 1979, during term time, appellant amended this pleading, seeking to set aside the judgment. The court treated the supplemental pleading as a motion to vacate and, after a hearing, overruled the motion.

We need only to discuss appellant’s contention that the court erred in not setting aside the default judgment for “excusable neglect, unavoidable casualty and other just cause.” Ark. Stat. Ann. § 29-401 (Repl. 1962). It is within the sound discretion of the trial court to grant or deny a motion to set aside a default judgment, and the question on appeal is whether there has been an abuse of that discretion. Johnson v. Jett, 203 Ark. 861, 159 S.W. 2d 78 (1952); and § 29-401, supra. Default judgments are not favorites of the law and should be avoided when possible. Winters v. Lewis, 260 Ark. 563, 542 S.W. 2d 746 (1976); and Perry v. Bale Chevrolet Co., 263 Ark. 552, 566 S.W. 2d 150 (1978). “The granting of a default judgment is a harsh and drastic action and may deprive a party of substantial rights.” Winters v. Lewis, supra.

Appellee’s suit was filed by an attorney, who had previously represented appellant on an unrelated matter in which he had been given power of attorney for appellant during a period of time from 1976 to 1977. There was some evidence he had also represented him in the spring of 1978, 7 months prior to the filing of this action, on a DWI charge. When appellant received the summons on November 13, 1978, he telephoned his former attorney, who informed him that he was representing the appellee in the matter, could not discuss the suit with him, and advised appellant to get an attorney to represent him. When appellant said he had insurance coverage, the attorney explained the carrier’s duty to defend him and advised appellant to contact the carrier. According to appellant, the attorney did not advise him to hire a lawyer but told him he wanted the name of the insurance company because he wanted to collect from it. However, appellant admitted he knew by the end of this conversation that the attorney was representing the appellee and would not represent him. It is undisputed that appellant called back that same day and left the name of his insurance carrier with the attorney’s secretary. That day the attorney wrote the insurance carrier, sending a copy of the complaint. About a week later, or within the 20 days after service of process, the carrier advised him by telephone and letter that there was no insurance coverage on the vehicle. The attorney did not pass this information on to the appellant. Appellant testified that when he called back and gave the name and telephone number of the insurance company to the attorney’s secretary, appellant “thought that was the end of it.” After receiving notice of the default judgment, appellant then consulted his present attorney, who promptly filed the motion to quash service, as indicated, and later amended the pleading to vacate judgment.

When it is demonstrated there exists a just cause for a defendant not filing a timely answer, a default judgment should be set aside. Barkis v. Bell, 238 Ark. 683, 384 S.W. 2d 269 (1964). As a proper guide to the exercise of discretion, the basic underlying policy is to have each case determined on its merits because, in the normal course of litigation, substantial rights are preserved and justice between the parties is best served by this policy. In view of the former relationship between appellant and appellee’s attorney and appellant’s promptness in questioning the default judgment, we are of the view that there was an honest and unfortunate misunderstanding which constituted just cause for not filing a timely answer. Therefore, the default judgment is set aside and vacated.

Reversed and remanded.

Fogleman, C.J., and Hickman, J., dissent.

John A, Fogleman, Chief Justice,

dissenting. Reversal of the action of the circuit court in denying the motion to set aside the default judgment in this case is a reversion to the rather chaotic situation that existed prior to the legislative reform undertaken a quarter of a century ago. A default judgment should not be set aside under Ark. Stat. Ann. § 29-401 (Repl. 1962) except for excusable neglect, unavoidable casualty or other just cause. This statute which is the combination of Acts 49 and 351 of 1955, as amended by Act 53 of 1957, seriously impaired previous holdings that had accepted almost any excuse given for failure of a defendant to file a timely pleading. See Pyle v. Amsler, 227 Ark. 785, 301 S.W. 2d 441; Walden v. Metzler, 227 Ark. 782, 301 S.W. 2d 439- In Walden, it was clearly stated that we were not foreclosing the possibility of relief to a defendant who has been prevented by unavoidable casualty from making his defense. In the absence of unavoidable casualty, excusable neglect or other just cause, the court had no discretion to set aside the default.

In Moore v. Robertson, 242 Ark. 413, 413 S.W. 2d 872, where, as here, appellant moved to set aside a default judgment rendered during the same term, we said:

At one time our statutes were markedly liberal in permitting trial courts to grant extensions of time for the filing of defensive pleadings and to set aside default judgments within the term. That liberality was greatly curtailed by the enactment of Acts 49 and 351 of 1955. Those acts were construed in Walden v. Metzler, 227 Ark. 782, 301 S.W. 2d 439 (1957), and Pyle v. Amsler, 227 Ark. 785, 301 S.W. 2d 441 (1957). We held that the 1955 statutes were mandatory in requiring a defendant to plead within the time fixed by law and in allowing a trial court to set aside an ensuing default judgment only upon a showing of unavoidable casaulty.

Some two months before the Walden and Pyle cases were decided the legislature adopted Act 53 of 1957,

which relaxed the strictness of the 1955 acts to the extent of declaring that “nothing in this Act shall impair the discretion of the Court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty or other just cause.” Ark. Stat. Ann. § 29-401 (Repl. 1962). In the case at hand there is no issue of unavoidable casualty. The question is whether the trial court abused its discretion for finding either excusable neglect or other just cause for vacating the judgment.

What we said in Robertson v. Barnett, 257 Ark. 365, 516 S.W. 2d 592, is equally appropriate here, viz:

Appellants quote from decisions of this court prior to Acts 1955, No. 49, and from decisions of other courts construing similar statutes to the effect that the delay in responding to the complaint came about through "excusable neglect, unavoidable casualty or other just cause.” The history of the law procedure before Acts 1955, No. 49, and the effect and purpose of the change brought about by Acts 1955, No. 49 can be found in Walden v. Metzler, 227 Ark. 782, 301 S.W. 2d 439 (1957) and Pyle v. Amsler, Judge, 227 Ark. 785, 301 S.W. 2d 441 (1957). The effect of the 1957 Amendment, Acts 1957, No. 53, which provided: “. . . that nothing in this Act shall impair the discretion of the Court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty or other just cause,” has been considered in Interstate Fire Insurance Co. v. Tolbert, 233 Ark. 249, 343 S.W. 2d 784 (1961); Moore Adm’x v. Robertson, 242 Ark. 413, 413 S.W. 2d 872 (1967); and Ryder Truck Rental v. Wren Oil Dist. Co., 253 Ark. 827, 489 S.W. 2d 236 (1973). ***

Further in Allied Chemical Corp. v. Van Buren School Dist., 264 Ark. 810, 575 S.W. 2d 445, we added:

[W]e have discussed, in several cases, what does or does not constitute a showing of “excusable neglect, unavoidable casualty or other just cause.” Perry v. Bale Chev. Co., 263 Ark. 552, 566 S.W. 2d 150 (1978); Robertson v. Barnett, 257 Ark. 365, 516 S.W. 2d 592 (1975); Ryder Truck Rental v. Wren Oil Dist. Co., 253 Ark. 827, 489 S.W. 2d 236 (1973); Ark. Elect. Co. v. Cone-Huddleston, 249 Ark. 230, 458 S.W. 2d 728 (1970); Barkis v. Bell, 238 Ark. 683, 384 S.W. 2d 269 (1964); and Interstate Fire Insurance Co. v. Tolbert, 233 Ark. 249, 343 S.W. 2d 784 (1961). Also we have often said that the question before us, when reviewing a trial court’s decision to grant or deny a motion to set aside a default, is whether the court abused its discretion. Moore, Administratrix v. Robertson, 242 Ark. 413, 413 S.W. 2d 872 (1967), and Ark. Elect. Co. v. Cone-Huddleston, supra.
The fact that the motion was filed during the term of court during which the judgment was rendered does not enlarge either the discretion of the trial court or appellate review by this court. In Ryder Truck Rental, Inc. v. H. B. Wren Oil Distributing Co., 253 Ark. 827, 489 S.W. 2d 236, we said:
The default in pleading under Ark. Stat. Ann. § 27-1135 (Repl. 1962) is not questioned in this case, and there is no question that the motion to set aside the judgment was filed during the same term of court in which the judgment was rendered, so the question simply boils down to whether the trial court abused its discretion in refusing to set aside the default judgment because of excusable neglect, unavoidable casualty or other just cause.

The setting aside of a default judgment under authority of Ark. Stat. Ann. § 29-401 is an action which addresses itself to the discretion of the trial court — not the discretion of this court. Arkansas Electric Co. v. Cone-Huddleston, Inc., 249 Ark. 230, 458 S.W. 2d 728. In Renault Central, Inc. v. International Imports, 266 Ark. 155, 583 S.W. 2d 10, we said:

A trial judge has wide discretion in determining whether a default judgment should be vacated and this court will not reverse the decision of the trial judge unless he has abused that discretion. Jetton v. Fawcett, 264 Ark. 69, 568 S.W. 2d 42 (1978) and Davis v. McBride, 247 Ark. 895, 448 S.W. 2d 37. ***

Even before § 29-401 became law, this court had followed the rule that the denial of a motion to set aside a default judgment during the term of court at which it was rendered should not be disturbed on appeal in the absence of an abuse of the trial court’s discretion. Johnson v. Jett, 203 Ark. 861, 159 S.W. 2d 78.

I do not see how this court can say that the trial court abused its discretion. It appears to me that this court is exercising its own discretion, or, at least, saying just how the trial court should have exercised its discretion. This leaves the trial court little latitude.

Burns testified that the power of attorney under which Davis had served had been dissolved for a year and that he understood this when he called Davis after being served with the summons. If he had not known Davis, he would have employed an attorney when he received the summons. He said that he was definitely aware that Davis was certainly not representing him but was representing Madden, but did not know this when he first called Davis. He said that after he had his very first telephone conversation with Davis he came to the conclusion that Davis was representing Madden.

Davis testified positively that he told Burns that Burns needed to find an attorney to represent him, and that he (Davis) told Burns specifically that he represented Madden and that he made sure that Burns understood that, ethically, he could not discuss the matter with Burns. David also said that he told Burns that if Burns had insurance he must contact the insurance carrier.

Although there is no major conflict in the pertinent testimony, the trial court obviously believed Davis. It is quite clear that Burns understood that he needed to employ a lawyer. Whether Davis wanted to get in touch with Burns’ insurance carrier is totally beside the point. Even if Davis said he wanted to collect from the insurance company, there was no reason for Burns to believe that furnishing the name of a purported carrier concluded the matter. Davis denied telling Burns he should furnish the name of the insurance carrier. The insurance carrier advised Davis that the vehicle involved was not insured. Is there any reason to believe that Burns did not know this when he furnished the name of a carrier? I doubt that there is.

I do not agree that Barkis v. Bell, 238 Ark. 683, 384 S.W. 2d 269, lends any support to the majority’s action in the factual background of this case. There, the defendant’s attorney took an answer and answers to interrogatories to the clerk’s office for filing on the last day and thought he had filed both pleadings. The deputy clerk with whom the answers to the interrogatories were filed stated that no answer was handed to him by the attorney. When alerted to the fact that the answer had not been filed, the attorney discovered the copies of the answer in his file but not the original. We said that apparently it had been lost. There was no explanation as to when, where, how or by whom it had been lost. In the attorney’s affidavit, he said that the answer was delivered to and received by a deputy clerk. The answer was filed, two days later, when the plaintiffs attorney advised defendant’s attorney that the record did not show an answer. No action was taken by the plaintiff to strike the answer for six months. The filing of the answers to interrogatories there certainly was consistent with an intention not to default, whether it can be called a defensive pleading or not.

I would affirm the judgment.

I am authorized to state that Mr. Justice Hickman joins in this opinion.

       This statute is now replaced by Ark. Rules of Civil Procedure, Rules 55 and 60 (Repl. 1979).