text:
    W. T. FOSTER d/b/a FOSTER’S SALVAGE YARD v. ARKANSAS STATE HIGHWAY COMMISSION
    75-32
    527 S.W. 2d 601
    Substituted Opinion on Rehearing delivered May 27, 1975
    (Rehearing denied September 2, 1975.]

      R. D. Rouse, for appellant.

      William II. Trice, III, for appellee.
   John A. Fogleman, Justice.

This appeal questions the holding of the chancery court that appellant’s claim for compensation for removal of his junkyard to a place more than 1000 feet from Highway 82 constituted a suit against the state. Under the circumstances, we agree with appellant that it was not.

For a better understanding of the issues and our opinion, we should examine the statute under which the Arkansas State Highway Commission, the appellee here and plaintiff below, proceeded and our decision in Arkansas State Highway Commission v. Turk’s Auto Corp., Inc., 254 Ark. 67, 491 S.W. 2d 387. The pertinent portion of the statute, Act 640 of 1967, Ark. Stat. Ann. § 76-2517 (Supp. 1973), reads:

“The Commission is authorized and empowered to require the screening of any junkyard by natural objects, plantings, fences, or other appropriate means so as not to be visible from the main traveled-way of any Interstate or Primary State Highway, and authorized and empowered to require the removal from sight of any junkyard not so screened which is so visible from the main traveled-way of such Interstate or Primary State Highway. Provided, that when the Commission determines that the topography of the land will not permit adequate screening or the screening would not be economically feasible, then just compensation shall be paid for the relocation, removal or disposal of the following junkyards: (a) those lawfully in existence on October 22, 1965; (b) those lawfully along any highway in this State made a part of the State Highway System on or after October 22, 1965, and before the effective date of this Act (June 29, 1967]; and (c) those lawfully established on or after the effective date of this Act. The Commission is hereby given the option of relocation, removal or disposal of affected junkyards and is also hereby authorized to make such payments, when in the best interests of the State. No compensation shall be paid for the relocation, removal, or disposal of any junkyards except those enumerated in this section;...”

Appropriate language from Arkansas Highway Commission v. Turk’s Auto Corp., Inc. follows:

The appellant, by a petition for mandatory injunction, sought to require the appellee, at its own expense, to screen its junkyard or remove it 1000 feet from the adjacent highway right-of-way. The appellee responded by asserting Ark. Stat. Ann. § 76-2513 et seq. (1971 Supp.) (Act 640 of 1967), which gives the appellant the asserted authority, is illegal, unconstitutional and void in that it purports to authorize the appellant to take appellee’s property without due process of law and adequate compensation. The chancellor held the statute unconstitutional as applied to the appellee because it is in violation of our constitution which prohibits the taking of private property for public use without just compensation. For reversal the appellant contends “[T]hat the trial court erred in holding Act 640 of 1967 unconstitutional as applied to the appellee, * * * and by denying and dismissing the appellant’s petition for a mandatory injunction pursuant to the aforesaid act.” We agree with the chancellor.
*****
It appears that for approximately twenty years this type of operation was conducted at the present location. The appellee has owned and operated this business since October 1, 1965, or before the enactment of the present legislation. The business fronted upon an existing highway within the city limits of West Helena, Arkansas. In 1966 or a year before the present Act, appellant, at its expense, constructed and completely screened the 500’ frontage of appellee’s salvage operation adjacent to the then existing highway so that the salvage yard was invisible to the traveling public. This screen was approximately 10’ in height. About two years later the Helena Loop or bypass was constructed adjacent to another portion of appellee’s property. This resulted in another public exposure of the existing junkyard. The appellant erected a transparent type chain link fence approximately 6’ in height along the 677' frontage of this bypass. Subsequently, the appellant, pursuant to the rules and regulations as authorized by the provisions of Act 640 of 1967, demanded that appellee effectively screen the renewed exposure of its operation from the view of the traveling public. According to the appellee, its business investment totaled $100,000 and it would require an expenditure by it of approximately $7,000 to comply with the type of screen that the appellant had constructed at its own expense a few years previously on the other side of appellee’s property. Appellee had insufficient space to “move back 1000 feet.”
The narrow issue posed is whether the imposition of this expense upon the appellee is a taking or exaction of his property rights without just compensation and due process of law.

It is undisputed that at the time of the enactment of the Act in question the appellee was conducting a lawful business. Article Two, Section 22, of the Constitution of our State provides:

“The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation.”

It was aptly said in Ark. State Highway Comm. v. Union Planters National Bank, 231 Ark. 907, 333 S.W. 2d 904 (1960):

“ ‘The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking . . . We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.’ ”
*****
In the case at bar, we do not construe Bachman v. State, supra, as being broad enough to permit the enactment and enforcement of legislation which would require the appellee, whose business was in lawful existence at the time of the passage of this Act, to be burdened with the expense of screening his property upon the relocation of the highway. The Act actually recognizes that just compensation “shall be paid” to the owner of a junkyard in certain circumstances. It provides “that when the Commission determines that the topography of the land will not permit adequate screening or the screening would not be economically feasible, then just compensation shall be paid for the relocation, removal or disposal” of junkyards lawfully in existence. Appellee’s junkyard was lawfully in existence when the Act was enacted. Since the Act provides that, in the above enumerated instances, the owner “shall” be justly compensated, it is difficult to perceive why appellee should be required to screen his lawful business from public view without just compensation. We agree with the chancellor that the imposition of the cost of the screening upon appellee would be a deprivation of his vested property rights without just compensation and therefore, is unconstitutional as applied to him.

With this background, we review the history of the litigation. On October 29, 1970, the Highway Commission filed a petition for mandatory injunction against Foster. By this petition appellee asked that the court require appellant to screen his junkyard in accordance with its rules and regulations, so it would not be visible from the main travelway of Highway 82, or, in the alternative, if this could not be effectively done, to remove it a distance of 1000 feet from the right-of-way of the highway. A decree was entered on December 20, 1971, upon default by failure of Foster to file an answer. The decree followed the prayer of the petition and required him, within 35 days, to either screen thejunkyard or remove it.

After Foster was ordered to show cause why he should not be held in contempt for failure to comply with the court’s order, he filed an answer and motion, alleging that, in compliance with the court’s decree, he had removed and relocated his junkyard, that the same was legally in existence prior to October 22, 1965, and asked that a hearing be held to determine the just compensation due him. Appellee responded, alleging that appellant was not legally entitled to compensation for removal and relocation of thejunkyard and prayed that the motion for compensation be denied. No contention was made that appellant’s pleading was a suit against the state in the response or its supporting brief. Appellant filed a reply, alleging that thejunkyard had been located for many years prior to October 22, 1965 on one acre owned by him and ten acres leased to him; that he had been given the alternative to remove and relocate his junkyard, that he, in good faith, relied upon the alternative; that appellee knew at all times that he was moving to a new location; that he, in good faith, thought he would be compensated; that appellee is es-topped from contending that the junkyard could have been screened; that the portion of the act providing that appellee must find that the topography was not such that screening would adequately serve the statutory purpose or that screening would not be economically feasible is arbitrary, unreasonable and unconstitutional, being in violation of his rights under §§21 and 22, Art. 2 and § 1, Art. 7 of the Constitution of Arkansas and Amendment 14 of the Constitution of Arkansas. Appellant again asked that a hearing be conducted to determine the amount of compensation due him.

On August 19, 1974, a hearing was had on Foster’s motion. Appellant testified that he had run a junkyard at the site on Highway 82 for about 20 years before he was ordered to remove it and he could not move 1000 feet from the highway and remain on the site. He said that he had there about 300 junk cars, 200 tons of scrap iron, a junk dragline, seven loads of used pipe, 5 old tractors without wheels, and a lot of other scrap metal on the yard.

There was no evidence that the Highway Department had ever made any determination, one way or the other, about the feasibility of screening the site. Its pleadings and the decree entered in the alternative are definite indications that no such determination had been made. Its “Environmental Control Coordinator Director” testified to the obvious fact that the department could pay compensation under Act 640 of 1967 if the yard existed prior to the passage of the act and could not feasibly be screened. Although witnesses for both sides testified that the site could feasibly be screened, an expert witness called by appellant testified that it would cost SI 7,000 to screen the old location. There was no other evidence as to the cost of screening. Appellant testified that he was unwilling to undergo the expense of screening someone else’s land. He also said that he did not have enough room to move the junkyard 1000 feet from the right-of-way and still remain on this 11-acre tract. He said that the reason it took nine months to complete the removal and relocation was due to extremely bad weather conditions, the necessity for clearing underbrush and trees, digging a drainage ditch, building a road to the new site, which was low and swampy, and the difficulty experienced in moving the junk from the old site, which was also muddy and boggy.

Appellee contended that Foster had stood by and permitted the Highway Commission to appropriate his property or damage it, without making compensation therefor, so that his attempt to recover compensation was an action to compel the state to redress a past injury and a suit against the state prohibited by Art. 5 § 20 of the Arkansas Constitution.

There is no doubt about Foster’s having a vested property right in the use of the premises on which he had operated the junkyard for twenty years. See Blundell v. City of West Helena, 258 Ark. 123, 522 S.W. 2d 661 (1975). Regulation which unduly invades this right runs afoul of constitutional due process requirements and prohibitions against the taking of private property without just compensation. Arkansas State Highway Commission v. Turk’s Auto Corp., Inc., 254 Ark. 67, 491 S.W. 2d 387; Bachman v. State, 235 Ark. 339, 359 S.W. 2d 815; Arkansas State Highway Commission v. Union Planters Bank, 231 Ark. 907, 333 S.W. 2d 904. An action under Ark. Stat. Ann. § 76-2513 et seq. (Supp. 1973) is in the nature of an eminent domain action, and may constitute the taking of private property rights entitling the affected property owners to just compensation. Arkansas State Highway Commission v. Turk’s Auto Corp., Inc., supra. We held in Turk’s Auto that the proceeding for mandatory injunction constituted a taking there. The same procedure here also constitutes a taking for which Foster was entitled to compensation.

Appellee’s argument that appellant’s claim for compensation in this proceeding made the state a defendant in the action in violation of Art. 5 § 20 of the Arkansas Constitution is not well taken. Appellant did not institute the action and the petition for mandatory injunction, when we look to its substance and prayer, itself performed the same function as a complaint in an eminent domain action, since appellant’s vested property rights for which he was entitled to just compensation were being taken by the proceeding. It would be just as logical to say that a landowner who claimed the right to just compensation in an eminent domain action instituted by appellant was making the state a defendant in its courts. When the state becomes a suitor in her own courts, she is subject to the same restrictions as a private suitor, is treated as any other litigant and must submit to and abide by the results. Arkansas State Highway Commission v. Partain, 193 Ark. 803, 103 S.W. 2d 53; Arkansas State Highway Commission v. Roberts, 248 Ark. 1005, 455 S.W. 2d 125; Arkansas Game & Fish Commission v. Parker, 248 Ark. 526, 453 S.W. 2d 30; Arkansas State Highway Commission v. McNeil, 222 Ark. 643, 262 S.W. 2d 129. There was no immunity from liability in this case. See Arkansas State Highway Commission v. Turk’s Auto Corp., Inc., supra. Furthermore, appellant’s answer and motion did not constitute a counterclaim, as appellee contends, anymore than a similar pleading in an eminent domain action would have, so Arkansas Department of Corrections v. Doyle, 254 Ark. 102, 491 S.W. 2d 602, relied upon by appellant, does not apply.

Although appellee does not specifically argue that appellant’s failure to File an answer within the statutory period bars his recovery, or constituted such standing by and permitting the state agency to take his property without compensation, as would relegate him to the State Claims Commission for relief, it has been suggested in our consultations. Appellant did not stand by and observe the taking and then institute an action to recover just compensation or to require the state to File a condemnation action or intervene in a pending suit between the state and other landowners, as was the case in authorities relied upon by appellee. The undisputed evidence is that Foster attended court time after time to report his activities in complying with the mandatory injunction.

The time for answer simply has no signiFicance, except as appellant’s acknowledgment that the state had a right to require him to screen his junkyard or move it. No answer is required in a suit by the state taking private property, unless the owner intends to claim special damages. Arkansas State Highway Commission v. Lewis, 243 Ark. 943, 422 S.W. 2d 866.

When the condemnor is put on notice of injuries which naturally flow from its taking, the damages resulting are not special damages. Arkansas State Highway Commission v. Lewis, supra; Arkansas Cent. R. Co. v. Smith, 71 Ark. 189, 71 S.W. 947. The special damages which must be pleaded in eminent domain proceedings are those which could not have been contemplated at the time of the taking. Bentonville R.R. v. Stroud, 45 Ark. 278; Fayetteville and Little Rock Ry. Co. v. Hunt, 51 Ark. 330, 11 S.W. 418; Ft. Smith & Van Buren Bridge Dist. v. Scott, 103 Ark. 405, 147 S.W. 440. See also, Arkansas State Highway Commission v. Lewis, supra. The only purpose of requiring the landowner to plead special damages is to avoid surprise. Arkansas State Highway Commission v. Dixon, 247 Ark. 130, 444 S.W. 2d 571. In sustaining judgments for elements of damages in cases in which no answer was filed, the important consideration has been whether the condemnor was taken by surprise and whether it made a specific objection on that account. See Arkanaas Louisiana Gas Co. v. McGaughey, 250 Ark. 1083, 468 S.W. 2d 754; Arkansas State Highway Commission v. Lewis, supra; Arkansas State Highway Commission v. Dixon, supra; Ft. Smith & Van Buren Bridge Dist. v. Scott, supra; Railway v. Hunt, 51 Ark. 330, 11 S.W. 418.

There is absolutely nothing in this record to suggest that it could not and should not have been contemplated that appellant was entitled to damages for complying with the mandatory injunction. Appellant had not then specified or intimated that it sought to require screening only. The chancery court’s order was in the alternative. When Foster moved for a hearing to determine the amount of his compensation he stated that he had removed and relocated his junkyard. His testimony that he met with the chancery judge and the Highway Department attorneys four or five times, reporting his progress and obtaining extensions of time because weather conditions impeded his moving, stands undisputed. Appellant was not surprised. It merely pleaded that Foster was not entitled to “any compensation for the removal of junked cars and other salvage from the premises in this cause pursuant to the order of the Court.” The first mention of the adequacy of screening came in a brief filed by appellant in support of this response in which appellant argued that “the yard is as flat as a table and would readily lend to removal or screening”. (Emphasis ours.)

Surprise was never asserted at the hearing and not a single objection was made by appellee to Foster’s testimony, in the course of which he detailed the reason for his removal of the yard, the reason why screening would not be economically feasible, and the cost and expenses incurred. Furthermore, not a single objection was made to the testimony of Foster’s expert witness who stated his opinion as to the cost of moving the junkyard and the cost of screening the original site.

Foster testified that the cost of removal was $27,540. His expert witness testified that under normal conditions the cost would be $16,800. In arriving at this figure he did not take into account the inclement weather conditions or the muddy condition of the two sites on that account. Neither did he consider 100 days’ use of a bulldozer to remove the junked cars from one site to the other. Foster testified that the bulldozer rental value was $50 per day and that the driver, normally earns $15 per hour. Nobody else testified on the subject.

The decree of the chancery court is reversed. This is a case, however, that we feel should be remanded to the trial court because the chancery court decided the case on the wrong legal theory. See Rebsamen Company Inc. v. Arkansas State Hospital Employees Federal Credit Union, 258 Ark. 160, 577 S.W. 2d 845 (1975). In order to do equity between the parties, the chancery court shall hear such additional testimony as the parties may offer on the subject in order to determine the amount of just compensation to appellant.

It is so ordered.

The Chief Justice and Jones, J., dissent.


source: Caselaw Access Project

author: Conley Byrd, Justice. John A. Fogleman, Justice, J. Fred Jones, Justice. Carletpn Harris, Chief Justice,

license: Public Domain

text:
    David PRYOR, Governor of the State of Arkansas, et al v. Lynn LOWE and Delia BISSETT
    75-120
    523 S.W. 2d 199
    Opinion delivered May 27, 1975

      Jim Guy Tucker, Atty. Gen., by: Sam Bratton Jr. and Alston Jennings Jr., Asst. Attys. Gen., for appellants.

      Ed Belhune and Cliff Jackson, for appellees Lowe and Bissett; Thweatt & Thweatt, for intervenors Glover and Hampton.

      Robert A. Leflar, Sidney S. Me Math, Reginald A. Eilbotl Jr. and James Sharf>, amicus curiae.
   Conley Byrd, Justice.

At issue here is the validity of a “limited constitutional convention” established by Act 16 of 1975 — not ratified by the electorate. The trial court agreed with appellees, Lynn Lowe, Delia Bissett, Wayne Hampton and Bobby L. Glover, as citizens and taxpaye/s, that Act 16 of 1975 was invalid and therefore enjoined the expenditure of any of the $800,000 in funds appropriated by Act 758 of 1975 to defray the expenses of the convention. This appeal is brought by appellants, David Pryor, Governor of the State of Arkansas; Jimmie “Red” Jones, Auditor of the State of Arkansas; Nancy J. Hall, Treasurer of the State of Arkansas; and Robert Harvey, President Pro Tempore of the Arkansas Senate. For reversal they contend, among other things, that the legislative limitations placed upon the convention delegates do not contravene any provision of the Constitution of Arkansas (1874).

Act 16, here in question, m&kes a finding “that the requirements of a modern and more effective state government demand the consideration by the people of a new Constitution at a special election.” Section 2 creates a convention to be composed of 35 appointed members — 27 appointed by the Governor, five from the membership of the House of Representatives and three from the membership of the Senate. Section 3 provides for the officials of the convention. Section 4 provides as follows:

“SECTION 4. LIMITS OF AUTHORITY. The following provisions of the existing Arkansas Constitution of 1874, as amended, shall be contained within the proposed Constitution recommended by the Convention in the same form and language as they presently exist in the Arkansas Constitution of 1874, as amended; provided, however, that the following provisions may be arranged within the proposed Constitution in an appropriate and logical order but may not be transferred to the Schedule of the proposed Constitution:
(a) The ‘Declaration of Rights’ (Article 2, including existing amendments thereto), except that additional rights may be guaranteed;
(b) The ‘Judicial Department,’ (Article 7, and existing amendments thereto);
(c) Amendment No. 55, relating to county government, adopted in 1974;
(d) ‘Education’ (Article 14, and existing amendments thereto);
(e) Amendment No. 52 (community colleges);
(f) ‘Franchise and Elections’ (Article 3, and existing amendments thereto, including Amendment No. 50 (voting machines) and Amendment No. 51 (voter registration);
(g) ‘Workmen’s Compensation’ (Amendment No. 26);
(h) ‘Rights of Labor’ (Amendment No. 34);
(i) ‘Purchase of Printing, Stationery and Supplies’ (Amendment No. 54, adopted in 1974);
(j) ‘Industrial Development Bonds Authority’ (Amendment No. 49);
(k) ‘Usury-Legal Rate’ (Article 19, Section 13).
The Convention shall not provide within the proposed Constitution any provision which affects the numbers of members of the Senate and/or House of Representatives of the General Assembly or the apportionment of the members of the Senate or House of Representatives of the General Assembly which provision would be applicable to members of the General Assembly elected prior to the General Election of 1982; and the Convention shall not provide within the proposed Constitution any provision which affects the number of members or the apportionment of the members of the Senate and/or House of Representatives of the General Assembly other than a provision based upon the federal decennial census of 1980 and federal census’ thereafter.”

Section 5 establishes the beginning date of the convention, the time limit within which the convention must act, recess and reconvene, and requires the advertising of the final draft of the convention one time before the special election. Section 7 requires that the proposals of the convention be submitted to a popular vote on the third Tuesday in September 1975. Section 11 provides:

“SECTION 11. EFFECT OF PROPOSED AMENDMENTS OF CONSTITUTION OF 1874. If the proposed Constitution recommended by the Convention is approved and adopted by the people of the State of Arkansas as provided in this Act in which event it will supersede, replace and take precedence over the Arkansas Constitution of 1874, as amended, any amendments to the Constitution of 1874, as amended, proposed by the Seventieth Regular Session of the General Assembly of the State of Arkansas shall be considered null and void and shall not be voted upon by the people.”

In addition to the limitations placed upon the General Assembly in Art. 19, § 22 and Amendment No. 7 limiting the submission of Amendments, the Bill of Rights in our Constitution contains the following provisions:

Art. 2, § 1 “Source of power. — All political power is inherent in the people and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish the same in such manner as they may think proper.”
Art. 2, § 29. '''’Enumeration of rights of people not exclusive of other rights Protection against encroachment — This enumeration of rights shall not be construed to deny or disparage others retained by the people and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare that everything m this article is excepted out of the general powers of the government, and shall forever remain inviolate, and that all laws contrary thereto, or to the other provisions herein contained, shall he void. ” (Emphasis added)

In Harvey v. Ridgeway, 248 Ark. 35, 450 S.W. 2d 281 (1970), we had before us the issue of whether Senator Robert Harvey was barred by Art. 5, § 10 of our Constitution from sitting as a delegate in the 1970 convention. In holding that Senator Harvey was not prohibited by Ark. Const., Art. 5, § 10, from being seated as a delegate, we premised the holding upon the fact that the position of a delegate to a constitutional convention is derived from the power inherent in the people as set forth in Art. 2, § 1, supra. We there pointed out that a constitutional delegate is an agent of the people “for the purpose of acting in their stead in the exercise of their inherent power in working out the substance, form and content of a constitution to be submitted to all the people of Arkansas for their approval or rejection.”

Since the delegates to a constitutional convention are exercising that “. . . power . . . inherent in the people ...” reserved by the Bill of Rights, Art. 2, § 1, supra, then it logically follows that any limitation upon the exercise of the power by the General Assembly, without a ratification thereof by the electorate, is prohibited by the last section of the Bill of Rights, Art. 2, § 29, supra, which provides: “. . . to guard against any encroachments on the rights herein retained, ... , we declare that everything in this article is excepted out of the general powers of the government . . . and that all laws contrary thereto, . . . shall be void.” It follows that the limitations placed upon the delegates by Act 16 of 1975 render the Act void.

Since it appears that the limitations placed upon the delegates are sp mutually connected with and dependent upon the other provisions of the Act, supra, as to warrant the belief that the Legislature would not pass the residue independently, it follows that we find the Act is not severable. See Cotham v. Coffman, 111 Ark. 108, 163 S.W. 1183 (1914). Professor Ralph C. Barnhart, former Dean, School of Law, University of Arkansas in his article, 17 Ark. L. Rev. 1, “A Xetv Constitution for Arkansas?", points out that the “limited Constitutional Convention” is the price that has to be paid to get the legislature to agree to call the convention at all.

Since the foregoing discussion disposes of this litigation, we find it unnecessary to discuss the other issues set forth in the excellent briefs of the parties and the amici curiae.

Affirmed.

Lyle Brown, Fogleman and Jones, JJ., concur.

Harris, C.J., George Rose Smith, and Holt, JJ., dissent.

John A. Fogleman, Justice,

concurring. I fully cone ur in the majority opinion.

I take the dissenting opinion to be based upon a misreading of Article 2 of our constitution. In my opinion the very language of § 29 is certainly an implied, if not express, limitation upon the powers of the General Assembly in the matter of the alteration or reform of our government, in the manner attempted by Act 16 of 1975.

I can find no legal precedent anywhere, even in those states whose constitutions have no provision such as our § 29, holding valid the procedures outlined by this act where:

1. There has been no call of a convention or ratification of the call.
2. None of the “delegates” were elected by the people.
3. There is a legislative limitation on the extent to which “revision” is to be considered by the “convention.”
4. The work product of the “convention” is to be submitted at a special election.

I doubt if there is any historical precedent.

To me it is clear that this attempt to call a “limited constitutional convention” would clearly remove the delegates from their status as agents of the people for the purpose of acting in their stead in the exercise of their inherent, sovereign power, as we defined it in Harvey v. Ridgeway, 248 Ark. 35, 450 S.W. 2d 281.

The legislature can only exercise powers not expressly or by fair implication forbidden to it by the constitution of Arkansas or of the United States. Butler v. Board of Directors of Fourche Drainage District, 99 Ark. 100, 137 S.W. 251; Webb v. State, 176 Ark. 722, 3 S.W. 2d 1000.

To me there is more than a fair implication that the creation of this “limited constitutional convention” is an encroachment on the inherent right of the people which is excepted out of the general power of the government.

There should be no question about the non-severability of the act. It creates the “Arkansas Constitutional Convention of 1975.” See § 2. Without any provision relating to composition and procedures set out in §§ 2, 3, 4, 5, 6, 9 and 10, it is not the “Arkansas Constitutional Convention of 1975.” I do not see how it can seriously be argued that the General Assembly would have passed the act without any of its sections having been included, especially § 4. I don’t see how §' 11 has any bearing on the question.

Where elimination of an unconstitutional clause gives an act considerably broader scope than was intended by the legislature, it is not severable. Arkansas Commerce Commission v. Arkansas Ozarks Railway Co., 235 Ark. 89, 357 S.W. 2d 295. An Act is not severable when its provisions arc so interwoven and interconnected that it reflects the intent of the legislature to enact it as a whole. Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W. 2d 74. See also, Neal v. Still, 248 Ark. 1132, 455 S.W. 2d 921.

Clearly, Act 16 would have a much broader scope without § 4. It is just as clear that all its sections are so interwoven and interconnected that it reflects the intention of the legislature to enact it as a whole.

The time frame in which this case has been presented and the urgency of the decision render further elaboration impossible. I would point out that it is clear to me that we are faced with a situation where advocates of the people seek to prevent an illegal exaction in the expenditure of public funds in carrying out an unauthorized act and not a situation where there has been ratification of an unauthorized act. It is only in that perspective that we have any right to view the matter.

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

J. Fred Jones, Justice.

I agree with the majority opinion that Act 16 of 1975 is unconstitutional and has no salvage value through severability. I base my conclusion and reasoning on one point only. It is my view that Section 4 of Act 16, quite true to its title, limits the authority of the convention delegates and, in actuality, directs the readoption of many provisions of the present Constitution without change. Section 4 of the Act attempts to prohibit change in these provisions when once the delegates are in convention assembled.

The people may restrict the Legislature to the extent they deem proper and desire as indeed they have done in most every section of Article 5 of the present Constitution pertaining to the Legislative Department. But the Legislature can never rise above the source of all political power and restrict the people in the exercise of the power and rights they have reserved to themselves. As I interpret Section 4 of Act 16, it contains just such restriction.

Carletpn Harris, Chief Justice,

dissenting. I disagree with the decision rendered today by the majority for, in considering the arguments of appellees, it appears to me that principal objections to Act 16 are based upon practicalities, rather than actual illegality. As I view it, it is not within the province of this court to determine, or pass upon, the wisdom of legislation; policy decisions are generally left to the General Assembly. In other words, whether it is practical to call a convention whose task will not include revision of the entire Constitution, whether it is practical to provide a special election, or whether there is sufficient time for the people to acquaint themselves with the provisions of the proposed instrument, etc. are not matters properly within the scope of this court. The only question with which we should be concerned is whether Act 16 is in conflict with the Arkansas Constitution of 1874, as amended.

It appears that the majority reach their conclusions principally upon two premises, viz-, that the legislature has no authority under the Constitution to call a constitutional convention without such call being ratified by the people, and the limits set upon the authority of the proposed convention are a violation of our Constitution. In addition, the citing of Harvey v. Ridgeway, 248 Ark. 35, 450 S.W.2d 281, clearly implies that the court is holding that delegates must be elected, and that the appointment of delegates by the Governor and General Assembly conflicts with constitutional requirements. Amendment 7 is also fleetingly mentioned, but let it simply be said that this is the initiative and referendum amendment which sets out how the people themselves may initiate constitutional amendments or laws, and the manner in which legislative acts can be referred to a vote by the people. I cannot see how Amendment 7 has the slightest relevance to the question of whether the General Assembly has power to call a constitutional convention.

As to the election of delegates, we again are talking about practicalities. Personally, I would prefer that method, but not one provision of the Arkansas Constitution has been pointed out that makes such a requirement, and I certainly do not take Harvey v. Ridgeway, supra to so hold. There was no occasion for such a holding, for Senator Harvey had been elected by the people to serve (in the Constitutional Convention of 1970), and the sole question in that litigation was whether, being a state senator, he could also serve as a delegate. The question of whether a delegate could be appointed was not involved “top, side, or bottom.”

Aside from the argument relating to practical aspects, the import of much of appellees’ argument seems to be directed to the supposition that the proposed constitutional convention will actually have the authority to change our Constitution. Even the trial court, in its findings, stated, “But I do not believe that the people intended to give anyone the authority to change their Constitution.” I agree with this statement wholeheartedly, but the proposed constitutional convention could not, of course, in any sense, change that document. A constitutional convention can only recommend — suggest — advise — propose — proffer — but it cannot go one whit further! To use a simple illustration, the government or business executive receives suggestions or recommendations each day from subordinates as to changes that might provide greater efficiency — but these are only recommendations — the business executive is free to accept or reject such recommendations. Here, too, the decision to accept or reject the recommendations of the constitutional convention is the choice of the people and absolutely no change in the Constitution has been made until a majority of the electors approve the proposed document.

I feel that the majority have entirely misconstrued Article 2, § 29, quoted in the majority opinion (with their emphasis), as follows:

“Art. 2, § 29. ‘Enumeration of rights of people not exclusive of other rights Protection against encroachment — This enumeration of rights shall not be construed to deny or disparage others retained by the people and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare that everything in this article is excepted out of the general powers of the government, and shall forever remain inviolate, and that all laws contrary thereto, or to the other provisions herein contained, shall be void. ’ ”

Article 2 is the “Declaration of Rights”, and sets out the general rights of the people which cannot be abridged by governmental decree or legislation. For instance, Section 1 deals with the source of power, declaring that “All political power is inherent in the people and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish the same in such manner as they may think proper.” Section 2 provides that all men are created equally free and independent and have the right to acquire, possess, and protect property and reputation, and to pursue happiness.’“Section 3 sets out that all are equal before the law. Section 4 grants the right of assembly and petition. Section 5 gives the right to bear arms. Section 6 deals with liberty of the press and of speech. Section 7 grants the right to a jury trial. Other well-known provisions relate to the redress of wrongs (§ 13), unreasonable searches and seizures (§ 15), property rights (§ 22), and religious liberty (§§ 24, 25 and 26). No point would be served in setting out what each section deals with, but it is sufficient to say that all deal with the basic and fundamental rights that every citizen enjoys under a democratic form of government, and Section 29, including the portion italicized by the majority, simply provides, in effect, that neither the legislative, executive, nor judicial branch of the government, has the authority to pass, promulgate, or render, any measure, order, or decree that would take away any of those rights. Neither the matter of constitutional conventions, nor the manner in which they shall be called, is even remotely touched upon.

As for Article 2, § 1, of course all political power is inherent in the people, and the people would Dave the opportunity (except for this majority decision) to exercise that power at the election called for in Act 16.

I am puzzled by the inclusion by the majority of § 11 of Act 16 in their opinion, and cannot comprehend how it has any bearing whatsoever on the right of the General Assembly to call the convention. This is the last section in the act (except the emergency clause), does not deal in any manner with setting up the convention, is nothing more than a self-imposed limitation on the Seventieth General Assembly (not the people), and is without meaning.

A review of the proceedings of the Seventieth General Assembly held this year reveals that no constitutional amendment was proposed, so, of course, there is nothing to submit to the people. If none are passed after the Assembly reconvenes next year, there still, of course, will be nothing to submit. There is no constitutional requirement for the legislature to submit any proposed constitutional amendment, and the General Assembly is thus free to do as it pleases in this respect. The last nine words of § 11, viz., “and shall not be voted upon by the people” are nothing but surplusage and completely meaningless, for if any proposals are “null and void” as stated in the section, there is nothing for the people to vote upon. For that matter, before any proposal could be submitted to a vote, the provisions of Article 19, § 22, would have to be complied with.

Be that as it may, if the section is void, it is certainly severable. As stated, it does not deal in any manner with establishing the convention, nor any of the procedures that shall be followed, and no other section or provision of the act is dependent upon it. I have no doubt but that Act 16 would have been passed without its inclusion. As stated by the late Justice Frank G. Smith, writing for the court in Cotham v. Coffman, 111 Ark. 108, 163 S.W. 1183:

“If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained.”

As to the “limited constitutional convention”, I know of no decision, and none has been cited from any jurisdiction, which holds that a legislatively called convention is invalid because of only providing a “limited convention”.

There is really no necessity in discussing the “limitation”, for at the conclusion of the discussion, I would simply wind up with the same view expressed by Dr. Robert A. Leflar, Distinguished Professor of Law (and I do not know of a more respected or eminent legal authority in Arkansas), in his Amicus Curiae brief filed in this Court. Dr. Leflar, pointing out that there is absolutely no prohibition in the Arkansas Constitution against the legislature calling a constitutional convention without a vote of the people, nor any constitutional violation in circumscribing the areas of revision) states:

“For any court to read such a limitation into the Constitution would be for the court to re-write the Constitution.”

It cannot be more forcefully expressed!

I would uphold Act Í6 and thus give the people of our State, in whom all power is inherent, the right and opportunity to alter their Constitution.

I am authorized to state that Justices George Rose Smith and Holt join in this dissent.

      The Constitution proposed by that convention was defeated at the 1970 General Election.

      Of course, a legislature can exercise all power that is not expressly or impliedly prohibited by the Constitution. State v. Ashley, 1 Ark. 513.

      Though without actual probative value in this litigation, it is interesting to observe that probably the finest constitutional document of all time, the Constitution of the United States, was prepared by convention delegates who were not elected by the people, but were mainly appointed by state authorities. In fact, the convention itself was called by the Continental Congress without a prior vote by either the people or by the several states.

      As we have held numerous times, a severance clause is not necessary-in holding the provisions of an act to be severable. See Berry v. Gordon, 237 Ark. 865 (Supplemental Opinion on Rehearing), 376 S.W.2d 279.

      The convention is empowered to propose revision of 14 of the 19 articles contained in the present Constitution, and 39 of the 49 amendments to our Constitution which are still effective.

      Also former Dean of the School of Law, University of Arkansas, and Associate Justice of this Court.


author: Frank Holt, Justice.

text:
    Willie Lee PERKINS v. STATE of Arkansas
    CR 75-22
    523 S.W. 2d 191
    Opinion delivered May 27, 1975

      Eugene Hunt, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbe.ll, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of capital felony murder in the perpetration of a robbery. Ark. Stat. Ann. § 41-4702 (Supp. 1973). His punishment was assessed at life imprisonment without parole. We first consider appellant’s contention for reversal that the “Court erred by refusing to allow Thomas Crutchfield to testify that, although the appellant had signed a confession stating that he had robbed Crutchfield on January 6, 1974, this confession was false.”

On February 17, 1974, a night watchman was found beaten to death by a person who was robbing vending machines. This is the same business location where Crutchfield was a night watchman when he was robbed. On April 20, approximately two months after the murder of the night watchman and three months after the Crutchfield robbery, the appellant was taken into custody by the police. On April 26, or about five days in custody, appellant was charged with felony murder. During this period of time, he signed several waiver of rights forms and confessions that he committed the murder. At a Denno hearing, evidence was adduced that the appellant is 23 years of age with a fifth grade education, having to repeat each grade. The psychiatric report, which was ordered by the court, revealed that appellant scored 66 on an I.Q. test, which placed him at the high end of the mild range of mental retardation. His memory and judgment were described as being poor. However, he had the ability to make decisions. Appellant did not testify at the Denno hearing, although he did testify before the jury that he was subjected to physical abuse and refusal of food. His testimony was controverted by state witnesses.

During the five days appellant was in custody and confessed to the robbery-murder, he also signed a confession that he had robbed Crutchfield. At the Denno hearing and before the jury, the appellant sought to show by Crutchfield that the confession was untrue. The proffer of proof was that Crutchfield would testify that he recognized his assailant and he was not the appellant.

We are of the view that this evidence, although it pertained to another crime, was relevant at the Denno hearing in evaluating the voluntariness of the murder confession and also relevant and admissible for the jury’s consideration in determining the controverted issue of the voluntariness of appellant’s confession of the alleged murder. The Crutchfield confession was secured during a continuing in custody investigation of appellant’s asserted criminal activities. We have said that “[T]he question of voluntariness must be determined by looking to the whole situation and surrounding of the accused.” Watson v. State, 255 Ark. 631, 501 S.W. 2d 609 (1973). There we also said “[W]e have for some time been committed to an independent determination of the voluntariness of a confession based upon an examination of the entire record, whenever an attack is made upon federal constitutional grounds.” Our recent case of Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1975), further defines our standard of appellate review.

In Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the court listed numerous factors to be considered in determining whether a defendant’s confession is free and voluntary. These include youth or age of the accused, lack of education, low intelligence, lack of advice as to his constitutional rights, length of detention, repeated and prolonged nature of questioning, and the use of physical punishment, such as being deprived of food and sleep. To the same effect is Watson v. State, supra. In the case at bar, it must be said that appellant’s in custody confession to another crime, when the victim exonerates the confessor, is a factor which must be considered by the cour and by the jury as being relevant to the issue of the veracity and voluntariness of appellant’s confession.

In view of the erroneous exclusion of the in custody Crutchfield confession and Crutchfield’s proffered testimony that thfe appellant was not his assailant, we deem it unnecessary to consider appellant’s contention that his confession as to the felony murder should be suppressed. There must be a reevaluation at retrial of his confession based upon whatever evidence is then adduced at a Denno hearing if found admissible. Suffice it to say we find no error in the court permitting the state to present certain witnesses without giving the requested notice to the appellant since they were in the nature of a rebuttal. Certainly, appellant has not demonstrated any prejudicial error. Lomax v. State, 248 Ark. 534, 452 S.W. 2d 646 (1970). Furthermore, we think there was a sufficient chain of custody shown with reference to the admissibility of certain items of evidence. Since the posture of the evidence presented at a retrial will not necessarily be the same, we deem it unnecessary to discuss the sufficiency of the evidence.

Reversed and remanded.

Harris, C.J., not participating.


author: George Rose Smith, Justice.

text:
    Donald C. DINGLEDINE v. Ninon Terez DINGLEDINE
    75-27
    523 S.W. 2d 189
    Opinion delivered June 2, 1975

      Richard P. Osborne, for appellant.

      John F. Jennings. for appellee.
   George Rose Smith, Justice.

These parties were married on December 14, 1973, and separated about 100 days later, on March 23, 1974. Separate suits for divorce, both on the ground of personal indignities, were filed on the same day and later consolidated for trial. The chancellor granted a divorce to the wife, sustained the validity of an antenuptial agreement by which each spouse relinquished all interest in the other’s property, and awarded the wife permanent alimony of $250 a month. By appeal the husband seeks a reduction in the amount of alimony; by cross-appeal the wife contends that the antenuptial agreement was contrary to public policy and therefore void.

We turn first to the cross-appeal. Mrs. Dingledine argues, on the authority of Oliphant v. Oliphant, 177 Ark. 613, 7 S.W. 2d 783 (1928), that the agreement was made to provide for the possibility of a divorce and is accordingly invalid. (See also Nelson, Divorce and Annulment, § 13.22 [2d ed., 1945]; Cathey, Ante-Nuptial Agreements in Arkansas — A Drafter’s Problem, 24 Ark. L. Rev. 275 [1970].)

We cannot sustain that contention. As we explained in Hughes v. Hughes. 251 Ark. 63, 471 S.W. 2d 355 (1971), the Oliphanl principle applies when the agreement is to be effective only in case there should be a divorce. In Hughes we upheld the contract even though it was to be controlling in the event of a divorce, because that was not its only purpose. In the case at bar the agreement makes no reference whatever to the possibility of divorce. The testimony about the parties’ intentions is in conflict. We think the chancellor was right in finding the antenuptial contract to be valid.

On cross-appeal the appellee further contends that the agreement should be construed to deprive her of an interest in her husband’s property only in the event of his death and not in the event of a divorce. The language of the agreement, however, does not support that interpretation. It recites that the prospective wife accepts the provisions of the contract “in lieu of all rights which she would otherwise acquire, by reason of the marriage, in the property or estate of Donald G. Dingledine.” If the contract is valid — and we hold that it is — its effect is not abrogated by a divorce. Lindey, Separation Agreements and Ante-Nuptial Contracts, § 90-18A (1967). In fact, that was our holding in Hughes v. Hughes, supra. We find it unnecessary to discuss the appellee’s other objections to the contract and affirm the decree on cross-appeal.

On direct appeal Dingledine insists that the allowance of $250 a month as alimony is excessive, in view of his ability to pay. Coltharp v. Coltharp. 218 Ark. 215, 235 S.W. 2d 884 (1951). According to Dingledine’s federal income tax return, his net income from his service station business in 1973 was $3,-181.31, but he admits that owing to depreciation and other factors he received more than that amount from the business. He estimated his income in 1974 as being from $500 to $1,000 a month, but he feared that gasoline shortages might have an adverse effect. He supports two minor sons by an earlier marriage. Mrs. Dingledine is an experienced bookkeeper and, according to her brief, is earning $200 a month. She has no dependents. That the marriage lasted only a few months is a circumstance to be considered. Ferguson v. Ferguson, 125 Ind. App. 596, 125 N.E. 2d 816 (1955); Thompson v. Thompson, 222 Ore. 505, 353 P. 2d 241 (1960); Taylor v. Taylor, 357 P. 2d 1112 (Wyo., 1961). Upon the testimony as abstracted it is our best collective judgment that the award of alimony should be modified by a reduction to $150 a month.

In closing, we cannot overlook the fact that the appellant’s attorney, who represented him at most of the hearings below and continues to represent him here, took the witness-stand and testified about points of fact that were disputed by the appellee. We have repeatedly admonished the members of our bar against such conduct. Montgomery v. First Nat. Bank of Newport, 246 Ark. 502, 439 S.W. 2d 299 (1969); Old American Life Ins. Co. v. Taylor. 244 Ark. 709, 427 S.W. 2d 23 (1968); Rushton v. First Nat. Bank of Magnolia, 244 Ark. 503, 426 S.W. 2d 378 (1968). Since those decisions the principle has again been stated in the American Bar Association’s Code of Professional Responsibility, adopted by this court by per curiam order on June 2, 1969. The new Code observes: “An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.” Code, EC 5-9; also DR 5-101 B. We are unwilling to let such a violation of the Code pass unnoticed.

Modified and affirmed, with the appellee to be allowed a $300 attorney’s fee.

Byrd, J., would reduce the alimony to $50 a month.


author: John A. Fogleman, Justice. Carleton Harris, Chief Justice,

text:
    James Edward WILLIAMS v. STATE of Arkansas
    CR 74-157
    523 S.W. 2d 377
    Opinion delivered June 2, 1975

      Iiohhy McDaniel, for appellant.

      Jim (iny Tucker. Atty. Gen., by: (¡ary ¡.shell. Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant James Edward Williams was charged with the crimes of burglary and grand larceny. He pleaded not guilty and was found by a jury to be guilty of both charges. After deliberation on appellant’s habitual offender status the jury fixed his sentence at 21 years and 6 months on each charge, to run consecutively for a total of 43 years.

Appellant argues for reversal that there was insufficient evidence to sustain a conviction for burglary and grand larceny. He asserts there was no proof adduced by the state placing him in the store which was burglarized, nor any evidence of his indirect participation in the burglary. His conviction, he argues, was based solely on circumstantial evidence, sufficient to raise no more than a suspicion of guilt. On appeal, in criminal cases, as in others, the evidence must be viewed in the light most favorable to the appellee, and the judgment affirmed if there is any substantial evidence to support the jury’s verdict. Parker v. State, 252 Ark. 1242, 482 S.W. 2d 822.

Mr. Bob Snider, manager of the OTASCO store in Jonesboro, testified as to the condition of his store as it was found on Tuesday following the Labor Day weekend, 1973. According to him, someone had gained access to the store by kicking out a window. The office had been ransacked. The locked security case holding his inventory of handguns had been broken into and fifteen pistols, which he, using business records, identified by make, caliber and value, were taken. He identified two missing automobile tape players by serial number and price. The bottom of the store safe had been broken out, the cash register hammered on, and $179 in change kept in rolls was missing.

Albert Brumley, manager of a used car lot in Jonesboro, testified that early on the morning after Labor Day he purchased from appellant, for $20, two auto tape players packaged in sealed boxes stamped ‘OTASCO’, and got $63 in rolled change from him as well. John Hitchcock, the police officer Brumley notified, and to whom he delivered the tape players when he determined they were stolen, identified two tape players in court as the ones he received from Brumley. Their serial numbers matched the numbers the OTASCO manager testified were on the tape players missing from his store after the burglary.

Matthew Prunty testified that on September 3, at 7:30 a.m., he drove appellant, at the latter’s request, to Pocahontas “to the man what buys old guns.” Appellant had with him a metal box and a paper box. On the way, he testified, appellant said only one thing, “Man, I been up all night.” The witness testified that when he inquired as to the reason, appellant just dropped his head and “didn’t say nothing else.” He testified that Mike Skeet, the man they were going to see, bought guns from appellant for $125, that Mike took the metal box, and when the witness and appellant returned to Jonesboro, appellant gave the witness a pistol and a Timex watch, which were not old items.

Michael George Skeet testified that some date around Labor Day, 1973, (he didn’t remember what date exactly) he purchased fourteen handguns from appellant, for $120. He said that appellant was accompanied by Matthew Prunty, but appellant alone was dealing in the guns. Skeet identified a number of guns in the courtroom as those he had purchased from appellant. The make, caliber, and serial number of those guns matched those of the guns taken from OTASCO.

The fact that evidence is circumstantial does not render it insubstantial — the law makes no distinction between direct evidence of a fact and evidence of circumstances from which a fact may be inferred. Lancaster v. State, 204 Ark. 176, 161 S.W. 2d 201; Parker v. State, 252 Ark. 1242, 482 S.W. 2d 822; Simmons v. State, 255 Ark. 82, 498 S.W. 2d 870. The argument made by appellant here has been rejected by this court many times. Possession of property recently stolen from burglarized premises, not satisfactorily explained to a jury, is sufficient to support a verdict of guilt of both the burglary and the larceny, even though there is no other evidence to show that the possessor had committed the crimes with felonious intent, either in person or by being present aiding, abetting and assisting another. Taylor v. State, 254 Ark. 620, 495 S.W. 2d 532; Richie v. State, 250 Ark. 700, 466 S.W. 2d 462; Duty v. State, 212 Ark. 890, 208 S.W. 2d 162; Johnson v. State, 190 Ark. 979, 82 S.W. 2d 521.

Appellant next assigns as error the refusal of the trial court to allow Paul Guilton, a defense witness, to testify because of his violation of the rule of sequestration of witnesses. Appellant had invoked the rule when the trial commenced. Appellant had testified in his own behalf that he had purchased the two tape players for $17 or $18 from a man from Memphis, who said he had gotten the tapes from his brother’s place in Little Rock, assuring appellant they were not stolen, and saying he wanted enough money to get home to Memphis, having lost his wallet. This sale was supposed to have taken place on Labor Day morning, 1973, on East Washington Street in Jonesboro in the presence of Matthew Prunty. After appellant testified, Paul Guilton was called to the stand. The State objected on the ground that Guilton had been present in the courtroom. The trial court ascertained from Guilton that he had indeed been present from the beginning of trial that morning, and had heard all of appellant’s testimony. It appears that Guilton, having been brought from jail in order to testify, found his way into the courtroom rather than the witness room, through no fault of, or complicity with, appellant. Over the vigorous exceptions of appellant’s counsel, the trial court excluded Guilton from testifying, without ever inquiring about or considering the nature of the testimony.

The rule consistently applied by this court is that a violation by a witness of the rule of sequestration of witnesses, through no fault of, or complicity with, the party calling him, should go to the credibility, rather than the competency of the witness. Harris v. State, 171 Ark. 658, 285 S.W. 367; Hellems v. State, 22 Ark. 207; Golden v. State, 19 Ark. 590; Pleasant v. State, 15 Ark. 624. The power to exclude the testimony of a witness who has violated the rule should be rarely exercised. We have been unable to find any case in which this court has sustained the action of a trial court excluding the testimony of such a witness. While the witness is subject to punishment for contempt and the adverse party is free, in argument to the jury, to raise an issue as tq his credibility by reason of his conduct, the party, who is innocent of the rule’s violation, should not ordinarily be deprived of his testimony. Harris v. State, supra; Aden v. State, 237 Ark. 789, 376 S.W. 2d 277; Mohley v. State, 251 Ark. 448, 473 S.W. 2d 176.

Although the trial court has some discretion in the matter, its discretion is very narrow and more readily abused by exclusion of the testimony than by admitting it. Harris v. State, supra. It has even been held that failure to make a formal proffer of the testimony of a witness excluded upon no basis other than his violation of a sequestration order, without the knowledge, procurement or consent of defendant or defense counsel cannot be used to deprive the accused of his constitutional right to compulsory attendance of witnesses in his behalf. See Braswell v. Wainwright, 463 F. 2d 1148 (5 Cir., 1972). See Art. 2 § 10, Constitution of Arkansas.

The State argues that appellant’s proffer of what he expected to prove by Guilton, which was made while the jury was deliberating, came too late for the trial judge to act on it or for the jury to consider it. However, as long as a century ago this court held that where a witness is rejected on the ground of incompetency it must be presumed the trial court would have excluded the evidence, however material it may have been. Rickerstricker v. State, 31 Ark. 207; Miles v. St. Louis, I.M.&S. Ry. Co., 90 Ark. 485, 119 S.W. 837; Triangle Lumber Co. v. Acree, 112 Ark. 534, 166 S.W. 958; Shephard v. Mendenhall, 127 Ark. 44, 191 S.W. 237; Powell Bros. Truck Lines, Inc. v. Barnett, 194 Ark. 769, 109 S.W. 2d 673. The State’s objection, as well as the trial court’s ruling, in this instance, went purely and simply to competency of the witness to testify. Hellems v. State, supra; Harris v. State, supra. See also Davenport v. Ogg. 15 Kan. 363 (1873). In such a situation a proffer has played no part in the court’s exercise of discretion and serves no purpose other than permitting the appellate court to determine whether there has been an abuse of that discretion.

In Davenport, the court articulated the rule widely followed thus:

. . . The rule seems to be this: When the court below excludes evidence because the evidence, and not the witness, is supposed to be incompetent, the record must contain the evidence sought to be introduced, so that the appellate court may see whether it is competent or not; but where the court below excludes a witness because the witness, and not his evidence, is supposed for any reason to be incompetent, then all that is necessary to be put in the record is enough to show whether the witness is competent or not upon the ground upon which he is excluded; and it is not necessary in such a case to put into the record what the witness would testify to. Where the competency of the witness is objected to for any particular reason, it will be presumed, unless the contrary appears, that no other reason for his exclusion exists. And hence, in such a case, all that is necessary, as a general rule, for the record to contain is enough to show that the particular reason given for the exclusion is not sufficient. In the present case the witness was excluded solely because she herself, without any encouragement from any one else, violated an order of the court. The record contains sufficient evidence to show that such reason is not sufficient, and hence the judgment of the court below must be reversed, and the cause remanded for a new trial.

In many other jurisdictions it has been held that no proffer is necessary when the trial court holds a witness incompetent or refuses to hear him at all. See, e.g., Strader v. State, 208 Tenn. 192, 344 S.W. 2d 546 (1961); Seeba v. Bowden. 86 S. 2d 432 (Fla. 1956); Totten v. Miller's Estate, 139 Ohio St. 29, 37 N.E. 2d 961 (1941); In re Lynagh's Estate, 177 S. 2d 256 (Fla. 1965).

The proffer here had no bearing on the trial court’s ruling but is important only to enable this court to determine whether the trial court’s discretion has been exercised to the prejudice of the party calling the witnesses. See Powell v. State, 133 Ark. 477, 203 S.W. 25. The situation is quite different from the court’s sustaining an objection to a question propounded to a witness or where evidence, not a witness is excluded. The rule is well stated in Latourette v. State, 91 Ark. 65, 120 S.W. 411.

. . . The rule has been established by this court that, where error is assigned in the refusal of the court to hear testimony of a witness, the record must disclose the substance or purport of the offered testimony, so that this court may determine whether or not its rejection was prejudicial. Meisenheimer v. State, 73 Ark. 407, 84 S.W. 494. In other words, it devolves upon the appellant to show by the record here before he can complain of the ruling of the court as being prejudicial, that the offered testimony was relevant to the issue and should have been admitted.

See also, Gooch v. State, 150 Ark. 268, 234 S.W. 33; Simmons v. State, 124 Ark. 566, 187 S.W. 646. It was concisely stated thus in Rickerstricker v. State, 31 Ark. 207:

To show in what manner he was prejudiced by the ruling of the court in the rejection of the witness, it was not necessary for the defendant to set out what he expected to prove by her.
A party introducing a witness, unless required by the court, is not bound to state in advance what facts he expects to prove by him; and when, without such requirement, the court excludes a witness in limine, its decision must be understood to have been made upon an objection to the witness himself, and not to the testimony he is expected to give. It is only where evidence is ruled out on account of the matter that it is necessary to set out in the statement of the case, what the party expected or offered to prove; and where a witness is rejected on the ground of incompetency, it must be presumed that the witness would have been rejected, no matter how material the evidence might have been.

In spite of the language of Riekerslrieker. we feel that the sounder position is that a proffer must be made in order to enable this court to determine whether the exclusion of the witness was prejudicial to the defendant. Our own cases on the subject can best be harmonized by this approach. But since this is the only purpose to be served by the proffer, the time when it is made is immaterial, so long as it appears in the fecord made in the trial court.

’According to the proffer, Guilton would have testified that he saw appellant purchase two stereo tape players from an unknown individual on September 3, 1973, in front of the funeral home on East Washington, that Matthew Prunty was present and observed the transaction, and that appellant paid $17 or $18 for the tapes. In view of appellant’s testimony in this regard, and the fact that Matthew Prunty, a witness for the State, on cross-examination denied having witnessed any sale of tape players to appellant, we cannot say it is manifest appellant was not prejudiced when he was deprived of Guilton’s testimony. Graves v. State, 256 Ark. 117, 505 S.W. 2d 748. As a matter of fact the proffer shows that the testimony was relevant and material rebuttal testimony and that the trial judge abused his discretion by refusing to allow the witness to testify.

Appellant also assigns as error the trial court’s ruling allowing the State, over appellant’s objection, to question appellant with regard to a statement he allegedly made to the sheriff of Craighead County during his incarceration in the Craighead County jail. During appellant’s testimony he denied having gone to Pocahontas with Matthew Prunty and having ever seen Michael Skeet prior to trial. On cross-examination the prosecutor asked appellant if he made any remark or statement to the sheriff. Appellant denied having done so. The prosecutor then called the sheriff, and he testified that appellant said he went to Pocahontas with Matthew Prunty and that he had with him the guns in question. Appellant’s counsel objected throughout, asking for a hearing outside the jury’s presence to determine the voluntariness of any statement made by appellant. The prosecutor responded that the purpose of the testimony was for impeachment only, citing Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), where the United States Supreme Court held that statements of an accused inadmissible in the prosecution’s case-in-chief because of failure to warn the accused of his right to appointed counsel could nevertheless be used to impeach the accused’s credibility.

In this court appellant argues that a Denno hearing should have been required to determine the voluntariness of the statement allegedly made by appellant before the State was allowed to use it for impeachment purposes. He argues that this court, iff Rooks v. State, 250 Ark. 561, 466 S.W. 2d 478, erroneously extended the ruling in Harris v. New York, supra, to an issue not presented in Harris. In Rooks, supra, the appellant argued that Jackson v. Denno, 378 U.S. 368 (1964), 84 S. Ct. 1774, 12 L. Ed. 2d 908, and Ark. Stat. Ann. § 43-2105 (Supp. 1973) required a Denno hearing to determine the voluntariness of her in-custody statement before the State could use it to impeach her. We stated that, although in Harris there was no contention that the contradictory statement was involuntary, that court had noted that the voluntariness of a confession is irrelevant when the defendant becomes a witness. This was in a footnote to the opinion in Harris where the Court hypothesized a situation in which an accused, having confessed fully to a homicide and having led the police to the body of the victim under circumstances making his confession inadmissible, takes the stand and denies every fact disclosed to or discovered by the police as a “fruit” of his confession. Answering Harris' argument that the accused should be allowed to do so free from confrontation with his prior statements and acts, the court stated that the voluntariness of the confession would, on this thesis, be totally irrelevant, and rejected “such an extravagant extension of the Constitution.”

Appellant characterizes the court’s hypothesis and conclusion derived therefrom as dicta, arguing that the rule in Harris is limited to cases where no claim is made that the statements were coerced or involuntary. To apply Harris to a situation in which the voluntariness or coercion of a statement is asserted, argues appellant, was an erroneous over-extension. Appellant points out that prior to trial he filed a motion for hearing on voluntariness of any admission or confession whether written or oral made by defendant, together with a supporting brief, and was assured by the trial court that an out-of-court hearing would be afforded him “if and when the same is offered.” In addition, appellant points to the fact he had subpoenaed two witnesses, whose testimony would have related to the hearing on the voluntariness of any statement of appellant, that this was made known to the trial court when the prosecutor, in chambers prior to the start of tri^l, asked the purpose for the calling of the witnesses, and that the trial court responded, “Well, that will be heard outside the presence of the jury . . . ”.

The rule of Harris was fully applied and fully treated recently by the Supreme Court of the United States in Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975). There the accused was given and accepted full Miranda warnings and then, later, in a patrol car, stated he would like to telephone a lawyer but was told he would have to wait until he and the officer reached the station. The issue was whether the information given could be used to impeach him. The court ruled it could, applying Harris v. New York. Once again the court allowed the use of the statements to impeach, provided “the trustworthiness of the evidence satisfies legal standards. ” The court, having noted the absence of any claim that the statements were involuntary or coerced, said: “If, in a given case, the officer’s conduct amounts to abuse, that case, like those involving coercion or duress, may be taken cáre of when it arises measured by the traditional standards for evaluating voluntariness and trustworthiness.” Yet, we are unable to read into either Harris or Hass the requirement that before these in-custody statements can be used to impeach an accused’s testimony, a Denno hearing must be held to determine their voluntariness, especially in view of the court’s hypothetical in Harris, and its conclusion that “the voluntariness of the confession would be totally irrelevant.” And though appellant may allude to coercion, no evidence of any coercion or abuse on part of the police was introduced or offered. Neither does he ever actually argue directly that any statement of his was coerced or involuntary. All he does is point to his request for a Denno hearing, should any attempt be made to introduce any statement of his in evidence. Appellant certainly could have, but did not, put to the jury the question of voluntariness of the statement as reflecting on the weight and credibility which should be accorded it, by offering evidence on the subject. Kagebein v. State, 254 Ark. 904, 496 S.W. 2d 435; Walker v. State, 253 Ark. 676, 488 S.W. 2d 40. We find no error on this point, and decline the invitation to overrule Rooks.

Appellant argues that the trial court erred in permitting the prosecuting attorney to ask him, on cross-examination, about charges against witnesses he had subpoenaed solely to appear in any Denno hearing which might take place. As pointed out earlier, there was inquiry, in chambers, prior to trial, into what purpose appellant had for having subpoenaed two prospective witnesses, the Smith brothers, and it was stated the purpose would be made known at the Denno hearing, which never took place. Appellant testified in his own behalf, and the picture painted by him was one of having been framed or set up. Several questions were propounded on cross-examination about appellant’s failure to produce witnesses to corroborate his story. The appellant was then asked if he knew the Smith brothers and answered that he did. He was further asked if they were willing to “come in here and back up your story.” He responded, “Yes, sir, they are. 1 am quite sure.” The prosecutor then asked Williams if he had heard that the Smith brothers were wanted for murdering a police officer in Missouri. Appellant’s attorney’s objection was overruled.

Appellant argues this questioning was irrelevant to any issue in the case, since the Smith brothers did not testify, and that it was prejudicial and inflammatory. Of course, where an accused takes the stand in his own behalf, he subjects himself to the same rules of cross-examination as any other witness. Montaque v. State, 219 Ark. 385, 242 S.W. 2d 697. Wide latitude is permitted in cross-examination as to contradicting his defense, or to impeach his credibility as a witness. Peterson v. Jackson, 193 Ark. 880, 103 S.W. 2d 640. The limits lie largely within the sound judicial discretion of the trial court. Hollingsworth v. State, 53 Ark. 387, 14 S.W. 41. In the context in which it occurred, however, we must hold that this inquiry was outside the limits of the trial court’s discretion and should not have been permitted.

Appellant challenges the legality of his arrest, arguing that two bench warrants served on him, charging him with burglary and grand larceny, were issued by the circuit court clerk, one not authorized to issue arrest warrants, and without any “independent determination of probable cause by a neutral, detached magistrate as required by the Fourth Amendment of the United States Constitution.” However, appellant admits he was arrested and jailed the day before the bench warrants referred to above were issued. The circumstances surrounding his initial arrest are not set out, leaving us to speculation.

Of course, a police officer can make a warrantless arrest when there are reasonable grounds to believe the person arrested has committed a felony; neither an affidavit of probable cause nor a warrant need be obtained. Ark. Stat. Ann. § 43-403 (Repl. 1964); Ellingburg v. State, 254 Ark. 199, 492 S.W. 2d 904; Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458. “Reasonable grounds” have been treated as virtually synonymous with the probable cause requirement of the Fourth and Fourteenth Amendments. Ellingburg v. State, supra, footnote 1. See also, Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409. The substance of all definitions of probable cause is a reasonable ground for belief of guilt. Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879. On appeal, all presumptions are in favor of the trial court’s ruling and the burden is on the appellant to demonstrate error, which is not done by a mere showing that under some circumstances there might have been error. Smith v. State, 194 Ark. 1041, 110 S.W. 2d 24. He has failed to meet this burden. Furthermore, appellant would not have been entitled to release, even if his arrest had been illegal. West v. State, 255 Ark. 668, 501 S.W. 2d 771. Ellingburg v. State, supra; Perkins v. City of Little Rock, 232 Ark. 739, 339 S.W. 2d 859. Illegal arrest, standing alone, does not void a subsequent conviction. Erisbie v. Collins, 342 U.S. 519, 72 S. Ct. 509, 96 L. Ed. 541.

Because of the error indicated the judgment is reversed and the cause remanded.

Harris, C.J., dissents.

Carleton Harris, Chief Justice,

dissenting. I disagree with the reversal in this case. The appellant invoked the provisions of Ark. Stat. Ann. § 43-2021 (Repl. 1964) to exclude from the courtroom any witnesses, not at the time under examination, in order that they would not hear the testimony of other witnesses. Upon such a request being made by a defendant, the aforementioned statute provides that the judge shall exclude such witnesses. The court questioned Guilton about how long he had been in the courtroom, and the witnesses that he had heard testify. Guilton replied that he had heard the appellant testify. The exclusion of witnesses was, as stated, requested by appellant himself, and I.certainly can find no abuse of the trial court’s discretion in the ruling made.

Not only that, but no proffer of the testimony of Guilton was made until after the giving of instructions to the jury, the conclusion of argument by respective counsel, and the retirement of the jury to the jury room. At that time, the proffer was made. This came too late, in my opinion.

I would affirm.


author: Conley Byrd, Justice.

text:
    Helen BARTLETT and Earl BARTLETT, her husband, v. ARGONAUT INSURANCE COMPANIES
    75-15
    523 S.W. 2d 385
    Opinion delivered June 2, 1975

      Phi! Stratton, Guy Jones, Jr. & Dan Stephens, for appellants.

      ¡I'. .1. Elrircdgt’. Jr. & J. I). Watson, for appellee.
   Conley Byrd, Justice.

Appellant Helen Bartlett, following back surgery in the Memorial Hospital, North Little Rock, Arkansas, became infected with staphylococcus aureau coagulase positive, sensitive to many antibiotics. Based upon the depositions of Mrs. Bartlett, her husband and mother, hospital records, and the affidavits of the hospital administrator and Mrs. Bartlett’s treating physician, the trial court granted summary judgment in favor of appellee, Argonaut Insurance Companies, the hospital’s insurance carrier, Ark. Stat. Ann. § 66-3240 (Repl. 1966). For reversal the appellants, Mrs. Bartlett and her husband, Earl Bartlett contend:

“POINT I. The trial court erred in holding as a matter of law that res ipsa loquitur is not applicable.
POINT II. The trial court erred in holding that expert testimony is necessary to show a hospital used substandard housekeeping procedures.
POINT III. The trial court erred in granting summary judgment for appellee.”

The affidavit of I. Leighton Millard, M.D., Mrs. Bartlett’s treating physician is as follows:

“4. Medical and scientific matters relating to the prevention, discovery and control of staph infections are not commonly known and relate to subjects which require medical and scientific knowledge for a proper understanding.
5. Based upon my qualifications as a physician, upon my medical and scientific knowledge of staph infections, upon my personal knowledge of precautions taken by Memorial Hospital and similar hospitals in this community to prevent, discover and control staph infections, and after my review of the hospital records relating to the hospitalization, treatment and operation of Helen Bartlett, the Complaint filed in Cases No. 34-71 and 37-73 of the Circuit Court of Van Burén County, Arkansas, and the depositions of Helen Bartlett, Orval Earl Bartlett and Ruthie Ezell, I find no evidence of negligence on the part of Memorial Hospital, its agents, servants or employees, and find no evidence of a breakdown of the aseptic or sterile techniques recognized and used by the hospitals in this community.
6. One of the known hazards to hospitalization and to conducting surgical procedures is post-operative infection. In spite of the use of the finest of aseptic and sterile techniques in hospitals and operating rooms, such as was in use at Memorial Hospital before and during the period of time in which Helen Bartlett was a patient, the staph germ which caused her infection cannot be eliminated. It is impossible for medical science, at this state of development, to guarantee against this staph infection. Post-operative infections are relatively common since there is an open wound during surgery and since the existence of the staph germ cannot be completely eliminated from the air and operating rooms. The patient or any other person could have brought the staph germ into the operating room and it would have been impossible to have prevented it. Even a mask on the face of all personnel in the operating room cannot eliminate the staph germs. The staph germ which caused Helen Bartlett’s infection could have entered her body in many ways and from many sources.
7. It is, therefore, my opinion that the infection which Helen Bartlett sustained was one of those unfortunate infections which occur in a significant percentage of cases which medical science, at this state of development, has been unable to prevent.”

The counter-affidavits filed in response to the motion for summary judgment stated in effect that the several counts in the complaint “are supported and will be supported at trial by substantial evidence to show that Memorial Hospital: (A) failed to exercise due care in the prevention and control of staphylococcus; and (B) followed poor housekeepirtg techniques which contributed to the growth and spread of staphylococcus.”

POINT I. We find no merit in the contention that res ipsa loquitur should be applied in this hospital infection case. \s pointed out in the affidavit of Dr. Millard, it is impossible for a hospital to be in complete control of a staph germ which may be brought in by the patient. Consequently, since a hospital cannot be said to be in complete control of that which the patient himself may carry, it follows that res ipsa loquitur cannot be applied. See Dollins v. Hartford Accident & Indemnity Co.. 252 Ark. 13, 477 S.W. 2d 179 (1972).

POINT II. The only proof in the record is the uncontroverted affidavit of Dr. Millard that the prevention, discovery and control of staph infections are not commonly known and relate to subjects which require medical and scientific knowledge for a proper understanding. Consequently, we cannot say that the trial court erred in holding that expert testimony is necessary to show that a hospital used substandard housekeeping procedures. See also, Aetna Casually & Surety Co. v. Pilcher, 244 Ark. 11, 424 S.W. 2d 181 (1968), to the same effect.

POINT III. We find no merit in the contention that the trial court erred in granting a summary judgment. The depositions of the Bartletts were to the effect that the hospital floors were not swept every day and that some of the nurses wore their hospital uniforms from home, but there is no proof by the appellants to show that such conduct on the part of the hospital was a proximate cause of the staph infection. With reference to the respondent’s duty to respond to a motion for summary judgment in Booth v. McCord, 248 Ark. 1213, 455 S.W. 2d 868 (1970), we said:

“It is well settled that, once a moving party establishes a prima facie case for relief by affidavits and other supporting documents, the adverse party must remove the shielding cloak of formal allegations in pleadings and demonstrate the existence of a genuine issue of material facts. Ark. Stat. Ann. § 29-211 (Supp. 1969); Mid-South Ins. Co. v. First National Bank of Fort Smith, 241 Ark. 935, 410 S.W. 2d 873; Deam v. O. L. Puryear & Sons, Inc.. 244 Ark. 18, 423 S.W. 2d 554. Mere allegations in a response to the motion are not sufficient, unless supported by showing facts admissible in evidence or otherwise showing how the respondent will support his contentions that issues of fact exist.”

Affirmed.